BTW, Rick Perry Was Indicted This Week, Too

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Michael Drew

Michael Drew is a Wisconsinite currently residing in Saint Paul, Minnesota. He enjoys thinking and writing about politics, history, and philosophy, listening to music and podcasts of all kinds, watching and occasionally playing sports, and playing the cello.

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  1. Avatar Will Truman
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    says:

    (I may or may not have a conflict here, so take this for what it’s worth…)

    I could see the courts reversing such a veto on the grounds of exceeding his authority and separation of powers. I’m not a lawyer, but maybe.

    I could see circumstances in which this sort of thing is an impeachable offense. Playing hardball that’s too hardball. Maybe.

    But a felony (two felonies)? That’s highly problematic unless there is a much more illegal foundation for what he’s doing (he’s looking to enrich himself or donors, for example).

    In my mind, the thing that prevents #1 and #2 was that the Travis County DA gave him a valid pretext. Whether that was his real motivation or not, there is a good-government argument that she had no business running such an operation and that while she was running it, it shouldn’t be funded. Absent that, impeachment or legal action wouldn’t strike me as unreasonable (whether I would agree would depend on the particulars).

    There is an argument to be made that “Well, yes, but the part about Perry being able to appoint the successor creates a conflict” and I can agree that it’s a screwy setup that should be revisited. But having a county DA responsible for investigating official corruption for all elected officials is itself a screwy setup. Everybody’s working within the system as it is, and not as one might prefer it to be.Report

    • Avatar Michael Drew in reply to Will Truman
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      says:

      My fear is that the standard of “can it be argued that the governor can reasonably argue that there is a not-ridiculous pretext upon which he can claim to be pursuing a good-government end rather than a political-control end in his attempt to control who occupies what office,” then in fact you simply are saying he should (not just does in texas, but that any governor with the LIV should) have the power I’m describing. Which a person can certainly argue. Eugene Volokh appears to argue not just that he should, but that that power is guaranteed to him by the Federal Constitution in those circumstances owing to the fact that he’ll inevitably *use expression of some sort*, thus implicating the First Amendment, to communicate the threat. (Interestingly that raises the question of whether the course for Perry to have done this legally is precisely to have been as verbally open about it in public as he possibly could have been. It also seems to me that Volokh’s point rides on th specifics of this statute, such that it could well be that the statute being used specifically here is constitutionally overbroad, but that one better tailored to prevent this behavior might not necessarily be.)

      My view is that it’s pretty reasonable to think that a law that seeks to constrain this use of the LIV doesn’t have to be problematic (though obviously it could be drafted so that it is, as might be the case here). And that attempts to distinguish a situation where everyone thinks a person should go from a situation where the governor is just trying to control who’s in what office cuz he wants to will make the the existence of a law that effectively does that essentially impossible. So that you have to choose: do you want it to be legal for governors with LIVs to act in this way in a case like Lehmberg’s, or do you not want them to be able to potentially legally threaten to zero out various agency budgets (not even necessarily related to the offices they’re trying to control – essentially holding the operation of the government as a hostage to their will) if they don’t get the people they want where they want them throughout the state. I don’t know how you write the “Lehmberg exception” into such a law.

      Maybe more than anything, this is an argument against LIVs.

      I’m curious what you refer to about a conflict for you. Should I remember something?Report

  2. Avatar Anderson
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    says:

    I’m no Rick Perry fan, but this indictment makes little sense. How is this different than any executive issuing a veto threat and then following through on that threat? If the executive does overreach in their veto authority, the proper recourse is impeachment–not indictment on an abuse of power felony.

    Eugene Volokh, moreover, argues that the underlying statute might violate the first amendment (see his review of the relevant Texas law: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/16/is-the-indictment-of-texas-gov-rick-perry-inconsistent-with-a-texas-court-of-appeals-precedent-as-to-the-coercion-count/)

    In any event, the whole indictment reeks of a long-standing intra-state political squabble between the liberal-leaning Travis County DA’s office and the deep-red governor. A distraction for the rest of us.Report

    • Avatar Michael Drew in reply to Anderson
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      says:

      I guess it’s different in the sense that it illustrates why the line item veto, and associated threats, are so different from other vetoes and veto threats.

      Volokh also essentially argues that a governor trying to influence who holds what office throughout the state, something he’s not clearly empowered by the constitution to do, is the same as trying to influence what laws eventually go on the books of the State of Texas, something he’s obviously centrally empowered to influence. You could argue that seeking to influence one with a veto threat (of whatever kind) is *no different at all* from trying to influence the other. But you could also… not argue that. You could concede a pretty obvious difference. I do think you could reasonably do either.Report

      • Avatar Anderson in reply to Michael Drew
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        says:

        Very good points. Even if this particular indictment lacks credibility, you rightly argue that the larger question of the line-item veto merits discussion. I think it’s a good tool for eliminating wasteful spending and balancing power between the branches of government; 43 states offer the executive such authority for a reason. I think corruption and overreach can be avoided with the existing criminal code (e.g. laws against bribery, extortion, honest services fraud) as well as legislative override for any LIV. And, of course, the governor and the DA are elected positions as well. So if a governor were to try and coerce public servants with the LIV to resign their positions without fair reason, there are plenty of checks against him. In short, executive abuse with LIV is possible, but I think the pros outweigh the cons.Report

      • Avatar Michael Drew in reply to Michael Drew
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        says:

        Was there a recent case somewhere finding some part of a state constitution in fact unconstitutional under that state’s constitution inasmuch as it (or the way it was used) violated an even more fundamental principle animating that constitution (namely that the legislature writes the laws) than the one that says the constitution could be validly amended, or something like that? I feel like I heard about it, and I feel like it might have involved the LIV. But I could be completely off my rocker. Don’t have time to research that right now, but I’ll file it away.Report

      • Avatar Michael Drew in reply to Michael Drew
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        says:

        …Did a little googling. It was probably a statutory LIV, not a constitutional one. Not sure, though.Report

    • Avatar Burt Likko in reply to Anderson
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      says:

      If the executive does overreach in their veto authority, the proper recourse is impeachment–not indictment on an abuse of power felony.

      Bingo. As long as there is a colorable (e.g., passes the “giggle test”) argument that the constitution of the state does not prohibit the use of a one item veto in this fashion, a threat to use the powers explicitly granted to the governor seems within the constitution and this not an appropriate subject for prosecution. The affirmative defense of “but I’m the Governor so yeah, that means I’m not like everyone else, I can so this thing” seems applicable. If this use of the power exceeds the spirit Constitution but not it’s text, then it’s a political question and it should be resolved through political, not judicial, channels.Report

      • Avatar Michael Drew in reply to Burt Likko
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        says:

        As long as there is a colorable (e.g., passes the “giggle test”) argument that the constitution of the state does not prohibit the use of a one item veto in this fashion,a threat to use the powers explicitly granted to the governor seems within the constitution and this not an appropriate subject for prosecution.

        Meaning that a law that purported to do that would not be constitutional under the TX constitution and should be regarded as such by all prosecutors? Or just that, whatever the law says, prosecutors should regard this behavior as not their domain? By what principle, that? It seems to me that a court is well-positioned to make that determination. If a prosecutor thinks he sees a violation of law and thinks there is a fair chance of conviction he’s justified in filing a charge. So the question to me seems to be, what do the statutes say – do they cover this behavior or not? Volokh has a pretty good argument that TX courts have found that they don’t. But they could have found that they do. I.e., it does’t seem like a principle that prosecutors should be taking directly from their own understanding of their duties combined with their state’s constitution and the federal constitution. They should take it from the entirely contingent vicissitudes of their state’s statutes and case law, AFAICT. Which, incidentally, they’re not in general looking to interpret in such a way as to the limit their ability to prosecute, nor, despite the wishes of some, is it their job to do so. Prosecutors try to figure out ways to prosecute people for stuff – that’s what they do. Judges tell them they’re barking up the wrong tree.Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        Seems clear that the TX governor has the power to apply the line-item veto at a level this atomic. So why shouldn’t he?Report

      • Avatar Michael Drew in reply to Burt Likko
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        says:

        No one’s saying he doesn’t have the power to apply it, if that’s all he does. The issue is how he’s using the power to apply it, before he does so (although he has now done so), as a political weapon. Which, yes, is very arguably just part of the constitutional structure. Or it might not be.

        But the argument “he has the power to apply the veto in the way he suggests using it/used it, so there can be no legal issue with any way he might seek to benefit from ‘threats’ to use it” would allow him to collect money from private interests directly in exchange for using or not using it. The fact that he can use the veto in this way doesn’t settle the matter of what the law can say about how he can wield his power to use it before he uses it.

        That’s why Volokh is currently so Vo-Locked-In on whether Texas statutes in fact do or don’t reach this behavior. Because if they did, it’s not at all clear that the simple provision in the constitution for there being a LIV for the TX governor would invalidate even mere statutes saying he couldn’t wield that power – not exercise it, but wield the fact that has it; seek to benefit politically or otherwise from the threat of its use, not just use it as an instrument of policy – in certain ways. It might invalidate them, but it’s not just an obvious, one-line statement that of course it would simply because the TX LIV provision would actually allow him to actually carry out a veto of the kind he threatened. No one disputes that he can carry it out. That’s not part of the indictment.Report

  3. Avatar Mike Schilling
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    says:

    The liberal blogosphere appears to be coming to that conclusion,

    Just as the conservative blogosphere did about Don Siegelman.

    Wait …Report

  4. Avatar Michael Cain
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    says:

    Request for clarification from folks in Texas, or otherwise knowledgeable about the details. Texas legislature meets and does the budget every two years, right? And short of a special session, once the line-item veto has been done and the legislature adjourns, the funding is gone for two years? Even if Travis County does replace its DA?Report

  5. Avatar Jim Heffman
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    says:

    The intent is not to actually get Rick Perry in jail.

    The intent is campaign ads along the lines of “Republicans have a long history of governmental abuse, such as Texas governor Rick Perry, indicted by his own state’s DA on charges of exceeding his authority. When Republicans say they just want responsible government, they’re lying. Vote Democrat or stay home in 2016.”Report

    • Avatar Chris in reply to Jim Heffman
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      says:

      To be fair, Perry is pretty damn corrupt. And the judge who appointed the special prosecutor is a Bush appointee.

      The weird thing about Texas is that someone like Perry can be pretty much universally disliked, but serve the longest tenure as governor in the state history because he’s not going to lose to a Democrat, and his political machine runs the state Republican party from top to bottom. He even hand picked his successor, who no one particularly likes either.Report

      • Avatar morat20 in reply to Chris
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        says:

        What’s interesting is that, in Texas, the governor’s office itself is pretty powerless. Most of the powers traditionally vested in the Governor are given to the Lt. Governor instead. (It’s a legacy of reconstruction).

        Bush was a traditionally weak Texas Governor — he was about as critical to the Texas Government as Biden is to the federal government.

        Perry, on the other hand — he’s spent 12 years reversing that. Mostly through party discipline and through appointments. It’s more like…LBJ, in that sense. Most Senate Majority Leaders can’t run the Senate like their own personal fief, but LBJ did — it wasn’t vested in his office, but in himself — the favors he was owed, the people who held power because he helped them, the political and party machine he controlled…

        It’s a little weird to point out how Perry basically runs Texas (and is not all that popular anymore — quite a few Texas Republicans felt he should have been booted four years ago in favor of someone else) despite the fact this his official power is quite limited.Report

      • Avatar Chris in reply to Chris
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        says:

        He probably would have lost 4 years ago if KBH hadn’t run an utterly incompetent campaign.Report

      • Avatar Mal Blue in reply to Chris
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        says:

        He also might have lost in 2006, against a single opponent.Report

      • Avatar Chris in reply to Chris
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        says:

        Oh man, I forget about 2006 sometimes. Repress the memory, more accurately. Strayhorn and Friedman running what were essentially vanity campaigns is not something I want to remember.

        Ordinarily, I would not care about state level politics. Really, given our fished up political system, I’m mostly interested in the supreme court’s makeup and local politics. However, over the last decade or so, Texas’ state government has become more and more meddlesome in Texas’ big cities, especially Austin. One of the main reasons Austinites aren’t riding around downtown on light rail is because of the state legislature. One of my bus stops, an individual bus stop, was moved by the fishing state legislature. Seriously, they passed a state law to move one bus stop in Austin, TX.Report

      • Avatar Kim in reply to Chris
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        says:

        morat,
        The senate has taken rather extreme steps to prevent another LBJ.Report

  6. Avatar Tod Kelly
    Ignored
    says:

    We might at least want to have a link up do that readers know why Perry is potentially in hot water?Report

    • Avatar zic in reply to Tod Kelly
      Ignored
      says:

      Mother Jones has a copy of the indictment.

      On or about June 14, 2013, in the County of Travis, Texas, James Richard ?Rick? Perry.
      with intent to harm another, to?wit, Rosemary Lehmberg and the Public Integrity Unit of
      the Travis County District Attorney?s Of?ce, intentionally or knowingly misused
      government property by dealing with such property contrary to an agreement under
      which defendant held such property or contrary to the oath of of?ce he took as a public
      servant, such government pmperty being monies having a value of in excess of $200,000
      which were approved and authorized by the Legislature of the State of Texas to fund the

      Beginning on or about June 10, 2013, and continuing through June 14, 2013, in the
      County of Travis, Texas, by means of coercion, to-wit: threatening to veto legislation that
      had been approved and authorized by the Legislature of the State of Texas to provide
      funding for the continued operation of the Public integrity Unit of the Travis County
      District Attorney?s Of?ce unless Travis County District Attorney Rosemary Lehmberg
      resigned from her of?cial position as elected District Attorney, James Richard ?Rick?
      Perry, intentionally or knowingly in?uenced or attempted to in?uence Rosemary
      Lehmberg, a public servant, namely, the elected District Attorney for Travis County.
      Texas, in the speci?c performance of her of?cial duty, to-wit: the duty to continue to
      carry out her responsibilities as the elected District Attorney for the County of Travis.
      Texas through the completion of her elected term of of?ce, and the defendant and
      Rosemary Lehmberg were not members of the same governing body of a govemmental
      entity, such offense having been committed by defendant, a public servant, while acting

      in an of?cial capacity as a public servant.

      Report

    • Avatar Michael Drew in reply to Tod Kelly
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      says:

      Good call, thank you @tod-kelly .Report

  7. Avatar Francis
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    says:

    fwiw, this sounds to me like the political version of blackmail, which is a crime.

    Blackmail is a very strange crime. The Victim has done something he wants to keep a secret (V may have even committed a crime), and Defendant learns V’s secret. D says to V, pay me for my silence. That’s illegal. D may legally notify the IRS of V’s nonpayment of taxes. D may legally report the crime to the police. But even if V stole from D, D cannot legally use the threat of making those reports in order to induce the repayment.

    The US Atty firings also seem similar. A president may replace a USAtty at any time, even for no reason at all. But when the president fires only those attorneys who refuse to follow an (arguably unlawful) order only to prosecute corruption crimes committed by members of the other party, there’s something really wrong there.

    So, fire or don’t fire. But don’t threaten and don’t interfere with the discretion legally invested in those subordinate individuals.Report

    • Avatar Michael Drew in reply to Francis
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      says:

      Are you saying Perry’s veto threat is that, or the indictment is? Or both?

      It’s not very much like blackmail, because everyone knows pretty much what everyone’s done here. I don’t endorse such a charged analogy, but if we were to go down that road, this is more like extortion. Do this, or your Public Integrity Unit gets it in the head.

      But your “fire or don’t fire” is on point. Because Perry can’t fire her (or else he would). That’s why this is different from threatening to veto a bill he doesn’t like. He’s supposed to veto bills he doesn’t like. He explicitly has that power over what the law becomes in Texas, and that’s the power that these means (the veto, and the LIV) are meant to advance. He doesn’t have the power to fire county DAs under the TX constitution, but he’s effectively seeking that power by using these means to seize it. And these means were not given to him in order for him to use to pursue that particular power. (I don’t think. Maybe someone with a stronger background in the TX constitution can set me straight on that.) And if he can constitutionally make this threat against this office’s funding to achieve this political (or perhaps, “good government”) end (indeed, must be allowed constitutionally to do so, is potentially what the argument is, depending on the possibilities for how laws governing this could potentially be drafted consistent with the U.S. and TX constitutions), then he can constitutionally make any threat to use his LIV to zero out state funding for anything in the budget in order to pursue any political aim, so long as the aim isn’t clearly corrupt (for which definitions surely abound in Texas law). Point being, the argument for why Perry can legally do this is not based in any way on the tight relationship between this DA’s appalling behavior (in non-official capacity, as it happens) and the particular office he’s targeting with the veto threat he’s using. The argument being made for why he can obviously do what he’s doing because of the LIV power in the constitution would have to allow him to be threatening to zero out funding for an arts program or a fisheries program or literally anything if he didn’t get his way on who’s the Travis County DA. And it’s also not dependent on the Travis County DA’s having been such a criminally irresponsible person in her off time, either. According to the LIV-power defense of this action by Perry, he could do this for a squeaky clean West Texas DA (oxymoron? who knows) whom he just happened not to like. Or he could call on any state legislator to step down, or else this or that provision of state funding would get it. The argument is that he’s constitutionally entitled to do those things, at least based on what the current statutes are that might be sued to control them; that the remedies for them would only be political, whether elections, recalls, or impeachment.

      Probably the better argument IMO is that the statutes themselves as they currently exist just don’t reach the behavior (though they could be designed to do so constitutionally, consistent with a finding about the intent of the TX constitutional provision ensuring the governor his LIV. However, as we’ve seen above, heavyweight national legal minds seem to be arguing that such laws might well not pass Federal First Amendment muster. It’s not clear to me whether, according to them, it might depend on the drafting of such laws, or whether it’s just as simple as that that basic function just is going to be an unconstitutional restriction on the governor’s right to use language to communicate his intent to use his LIV in a legal way, because the First Amendment isn’t restricted from protecting people from threatening others with legal behavior, or alternatively, if it would be legal to do it, it’s not a threat to say you might do it for First Amendment purposes. Or something like that.)Report

    • Avatar James Hanley in reply to Francis
      Ignored
      says:

      But even if V stole from D, D cannot legally use the threat of making those reports in order to induce the repayment.

      So is it actually unlawful to say, “just give me my stuff back, and I won’t bother going to the police”?

      Or, assuming the thief already sold my stuff, “just give me dollar equivalent value for what you stole, and I won’t bother with the cops”?Report

      • Avatar Francis in reply to James Hanley
        Ignored
        says:

        Michael is correct that the actual name of the crime I was thinking of is extortion.

        And James, the question is whether your statement was a threat to expose the crime. If it was, then you committed the crime of extortion.

        See California Penal Code 518 & 519: “Extortion is the obtaining of property from another, with his consent, … induced by a wrongful use of force or fear. … Fear, such as will constitute extortion, may be induced by a threat … to expose … a crime.”

        Note that the statute does not require the victim to be holding the property lawfully. Nor is truth a defense.Report

    • Avatar Michael Drew in reply to Francis
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      says:

      I see the analogy @francis was drawing now. The completion or noncompletion of the act is irrelevant to the legality of the threat.

      As to that pattern in regard to veto threats, the guy-on-Twitter’s response to that whom I mention below is that legal analysis of veto threats is *exactly* identical to legal analysis of the veto itself (https://twitter.com/nitpicker777/status/500969748143026176), while Volokh’s response is that the threat is First-Amendment-protected speech, I think.Report

  8. Avatar Michael Drew
    Ignored
    says:

    …Just had a conversation on Twitter with a seemingly knowledgeable person who affirmed explicitly that this is indeed what the TX constitution provides. Any law trying to say that the governor cannot use his line-item veto power in the following way: to randomly select TX state legislators from the directory and demand their resignations as the only thing that would cause him to choose not to use the LIV to zero out state arts funding in TX schools — would not be constitutional, or could not constitutionally have that effect. Because the LIV, like the rest of the veto is a plenary power, meaning that any use of it (or threatened us of it) is nonjusticiable. (Except, the guy said, in the case of bribery, because… bribery, I guess.) The remedies don’t include a forward-looking law against it, but of course do include impeachment (on what pretext I’m not sure if the action is constitutionally protected not just legal), override, or elections.

    I guess if someone purporting to be knowledgeable is willing to be that clear about it, I’m willing to accept it.

    Here’s the tweet: https://twitter.com/nitpicker777/status/500969287017041920. It’s an interesting convo; I invite you to check it out. (There are multiple threads.)Report

  9. Avatar Michael Cain
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    says:

    But does that mean that he’s clearly empowered to use the threat to do so to try to dictate to various local governments who should occupy their offices?

    One argument is that he didn’t threaten the local government about who should hold the county office, he simply said that someone with a DUI conviction should not hold a particular state position, and if the head of the state ethics unit didn’t resign — since he couldn’t remove them — he would withhold funding for that state function. Which is what happened. It isn’t his fault that the Travis County DA is automatically head of the ethics unit, so that the only way to resign as ethics head is to resign as DA. Blame that situation on the legislature.Report

    • Avatar Michael Drew in reply to Michael Cain
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      says:

      Fair, but the point of that would be to concede he doesn’t have the power I described while protecting the present action, and that does’t seem to be the position that the governor or most of those defending his action are looking to stake out. But maybe it is.Report

      • Avatar Michael Cain in reply to Michael Drew
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        says:

        He doesn’t have to concede that power at all. IANAL, but as a state legislative staffer had to read a lot of court proceedings and legal analysis for state vs local government cases. When an actual lawyer writes the arguments for why the judge should dismiss the case early on, they will offer the judge a whole list of reasons to choose from (at least if they’re any good they will). This one, that the grand jury is simply wrong that the governor was threatening or trying to influence a local official. The one that says Texas is a Dillon’s Rule state, and that local government and officials are both subject to the whims of the state, so the “influence a local official” law can’t be applied to the governor or members of the legislature acting in those roles. The one that says the legislature can’t infringe statutorily on the constitutional power to exercise the line-item veto for whatever reasons the governor chooses. The one that says if the legislature decides the governor has overreached his constitutional authority, it’s a political question, with political remedies — the legislature could override the veto, or could impeach.Report

  10. Avatar Stillwater
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    says:

    MD,

    I’ve been thinking about this a bit, and I agree with you that the mere threat of a veto isn’t an unjustified use of executive power. What strikes me as a more realistic challenge to executive power in this particular case would be one based on institutional harm, sorta like we discussed a few weeks ago. THat is, the threat of a veto isn’t the problem here, but using legitimate executive veto power to interfere with or infringe on other branches or jurisdictions of state gummint is. It seems to me that tying a demand the resignation of duly elected county DA into his approval of the funding constitutes some sort of harm to that institution which might stand up in court. The focus on coercion seems misguided to me.Report

  11. Avatar Jim Heffman
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    says:

    I do have to say it’s refreshing to see so many people affirm their belief that there are Constitutional limits on executive authority, and that an executive cannot simply issue orders and claim that they have the full force and constitutionality of legislative actions.Report

  12. Avatar Michael Cain
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    says:

    An acquaintance with fingers in the Texas state government tells me that the hot rumor going around this Monday is that all of the abuse of power stuff is a smoke screen; that the prosecutor has some of Perry’s staff dead-to-rights on attempted bribery and they’ve agreed to rat out the Governor.Report

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