Texas Governor Rick Perry’s legal team has filed a pretrial motion for a writ of Habeas Corpus. If granted, the case would be over, dismissed with prejudice, meaning it could not be refilled.
As I wrote in “Rick Perry: Politics Criminalized,” the case filed against him by a rogue Travis County (Austin) prosecutor’s office under the cover of a special prosecutor is not only faulty on the law, it’s a direct attack on the Texas and federal Constitutions. It essentially criminalizes the normal, completely lawful duties of a governor. The laws invoked were clearly never intended to be stretched to criminalize the use of a line item veto by a sitting governor. In fact, there is a clear Texas precedent–State v. Hanson (Tex. Ct. App. 1994)–that has a direct bearing on this case and absolutely in Perry’s favor.
This is a case any rational American regardless of party affiliation should wish to see dismissed. That might be made obvious when such liberal legal luminaries as Harvard Law’s Alan Dershowitz is on board in Perry’s favor.
A PDF copy of the motion is available here. It is very well written and persuasive. Examples:
By seeking to criminalize not merely the veto itself, but the Governor’s explanation for it as well, this prosecution also violates the Governor’s right under the Free speech clauses of the United States and Texas Constitution and the Speech of Debate Clause of the Texas Constitution. These violations ar econtrary both to Texas’ commitment to open, transparent government and to the People’s right to be fully informed about their Governor’s thought processes in fulfilling one of his core governing duties.’
‘According to Count I of the indictment, the mere act of the veto violated Section 39.02(a)(2) because Governor Perry ‘intentionally or knowingly misused’ over $200,000 of government funds by ‘dealing with such property contrary to an agreement under which [he] held such property or contrary to the oath of office he took as a public servant.’ See Exhibit 1. But, as a matter of law, Governor Perry never had ‘custody or possession’ of any property, let alone the funds which the Legislature appropriated during the legislative session… At no point during the appropriation process do funds appropriated by the Legislature come into the Governor’s care, custody, control, or management…. It defies logic, reason and common sense to allege that Governor Perry misused ‘funds’ that he did not have and, indeed could not have had.’
‘Article IV, Section 14 imposes no limits on the Governor’s right and duty to veto; he exercises unbounded discretion in exercising his veto power, subject only to the legislature right to override that veto.’
‘For over 100 years, it has been established that in exercising his veto power, the Governor is acting in a legislative capacity, and thus as a member of a governing body… the veto power is also characterized as a legislative act by federal law.’
‘…Texas courts have derived from the Clause a broad doctrine of legislative immunity… Not only are oral speech and debate protected, but so are written reports and legislative votes.’
‘The Clause also protects any government official, even members of the executive branch, insofar as they engage in ‘legitimate legislative activity.’
‘1. The vagueness of the statute is highlighted by the fact that a threat to do a legal act does not constitute duress or coercion.
There is more than sufficient legal cause in the brief to allow the court to grant the motion and dismiss charges. Whether that will happen is, as always, another issue. Courts often tend toward allowing matters to be decided in the court of origination, sometimes feeling that such pre-trial motions somehow subvert the process. However, in this case, there is plentiful evidence of the political rather than legal nature of these charges and their timing.