On August 17, 2014, I wrote Rick Perry: Politics Criminalized, an introduction to the indictment of then serving Governor of Texas, Rick Perry, on obviously ridiculous political charges. The basis of the charges? A veto threat:

April 12, 1013, Rosemary Lehmberg, in the culmination of a year-long bender (Bryan Preston of PJ Media documents it here), was arrested for driving while intoxicated. She had an open, and badly wounded, bottle of vodka in her vehicle. She was so abusive and obnoxious, the jail staff eventually had to strap her to a chair. Her blood alcohol level was just under three times the legal limit. She was convicted, paid a $4000 dollar fine, and sentenced to 45 days, served 20.

Rick Perry, evil and unprincipled Republican that he is, thought having a raging and abusive alcoholic convicted of drunk driving as head of a public integrity unit–Lehmberg was in charge of investigating political corruption in the state’s capitol–unseemly, and asked her to resign. She refused. He made it plain that if she did not resign, he would use his line-item veto to rescind $7.5 million in funding for the public integrity unit. The public-spirited Lehmberg still refused to resign, and Perry made good on his veto threat. He did not defund the prosecutor’s office, only the public integrity section run by a woman without, well, public integrity.


Take the links to see a video of Lehmberg’s drunken idiocy. It’s not pretty, particularly considering that Lehmberg is Austin’s chief prosecutor.

The two charges, filed under sections 36.03 and 39.02 of the Texas statutes were ridiculously overbroad and in effect, the Democrat partisans of the Travis County DA’s office were seeking to criminalize political speech, to make the exercise of a governor’s legitimate powers unlawful at the whim of progressive prosecutors. For trying to remove a drunken criminal prosecutor from office with a veto threat of funding for that office, Perry was accused of breaking the law.

Lehmberg refused to resign, Perry vetoed the $7.5 million, and the Legislature did not override the veto.

In Rick Perry: Prolonging the Spectacle, I reported that the District Court heard Perry’s motion for dismissal and declined to dismiss the charges on procedural grounds. However, Perry took his motion for dismissal to the Texas Appeals Court, which dismissed one of the two counts, again leaving one count standing as a procedural matter, not because of any belief in its validity or chance of success, quite the opposite.

Other previous articles in this series are:

Rick Perry: Dismissal or Pursuit? 

Rick Perry: Hidden Discovery 

Rick Perry: We’ll Get The Republican Bastard Somehow 

Our current development in this case from the New York Times: 

Former Gov. Rick Perry of Texas, who is seeking the Republican nomination for president, received some good news regarding his legal problems on Friday when an appeals court in his state dropped one of the two felony charges he is facing. [skip]

Mr. Perry, the first Texas governor in nearly 100 years to face criminal charges, has denied any wrongdoing and on Friday applauded the ruling. His lawyers have argued that the remaining charge should be considered a misdemeanor and that a veto in the absence of bribery cannot be illegal.

‘The remaining charge is hanging by a thread, and we are confident that once it is put before the court, it will be dismissed on its face,” said Tony Buzbee, lead counsel for Mr. Perry.

The Appeal Court’s decision, which is available here, is direct, concise, and well-written, sticking to the actual legal issues involved. It makes clear three primary points: The statute (36.03) is unconstitutionally overbroad, violates the First Amendment, and is struck down. The conduct alleged of Perry under the indictment relative to this charge is clearly constitutionally protected free speech. The second charge is equally specious, but because the statute does not directly violate the Constitution, Texas law does not allow a dismissal prior to trial, though the unanimous justices clearly expect that it will not survive a trial.

Michael McCrum credit:

Michael McCrum

The decision notes that even the special prosecutor, Michael McCrum, could not argue against the validity of Perry’s motion:

The State does not dispute that Perry’s claims asserting that Penal Code section 36.03(a)(1) is unconstitutionally overbroad and vague ‘on its face’ are, in both form and substance, facial constitutional challenges, as opposed to being “disguised” as-applied claims of the sort Ellis condemned. Nor does the State dispute that facial constitutional challenges like these are cognizable in pretrial habeas corpus123–in fact, the Court of Criminal Appeals has recently decided both facial overbreadth and vagueness challenges to criminal statutes that had been raised through that procedural mechanism124–or that the district court could properly reach the merits of both challenges here.

The decision includes some of the claims by Perry’s attorneys of the pernicious consequences of the law as applied by the prosecution:“…the net result is that section 36.03(a)(1)…would criminalize:

* A threat by a public servant to take of withhold official action lawfully.

* A threat by a public servant to take or withhold official action lawfully that seeks only to bring about lawful conduct by another public servant.

* A threat by a public servant to take or withhold official action lawfully that seeks only to bring about lawful conduct by another public servant that the first public servant has the lawful right to demand or require.

* A threat by a public servant to take or withhold official action lawfully that seeks only to bring about lawful conduct by another public servant that the first public servant has the lawful right to demand or require, even where the threat has a logical nexus to the conduct being sought of the other public servant.


Taken to their easily foreseen and logical conclusion, the Court recognized that the law would allow prosecutors to indict public servants for virtually any reason:

He posits hypothetical examples that include:

* [A] manager cold not threaten to fire of demote a government employee for poor performance.

* A judge could not threaten to sanction an attorney for the State, to declare a mistrial if jurors did not avoid misconduct, or to deny warrants that failed to contain certain information.

*An inspector general could not threaten to investigate an agency’s financial dealings.

* A prosecutor could not threaten to bring charges against another public servant.

* A [public] university administrator could not threaten to withdraw funding from a professor’s research program.

* A public defender could not threaten to file a motion for suppression of evidence to secure a better plea bargain for his client.

The Court also understood that the law, as applied by the prosecution, would have a very damaging effect on the daily business of the Court, and of all courts:

…section 36.03(a)(1) would seemingly put at right that time-honored practice whereby one justice will seek changes to another justice’s draft majority opinion by threatening to write a dissent exposing flaws in the other’s legal reasoning.189 Similar concerns would arise regarding the standard letter our Clerk issues to prompt action whenever briefs or records are late, in which he warns of imminent dismissal of the deficiency is not promptly rectified, at least when the party in interest is a government entity or official.

More was also at stake, as the Court understood in dealing with the law’s application for citizens and the media:

Within the literal scope of this prohibition would be ordinary citizens who make credible threats to obtain legislative or judicial remedies as a means of prompting some action by a local government official,191 not to mention members of the media who might have to resort to similar means of persuasion in order to overcome governmental foot-dragging on Public Information Act requests.

The Court concluded, correctly, that the burden was the prosecutor’s, and that his claims must be judged under the highest standard of analysis: strict scrutiny.

Where, as here, a statute ‘seeks to restrict and punish speech based on its content.’ ‘the usual presumption of constitutionality is reversed’–the statute is instead presumed invalid, and ‘the government bears the burden to rebut that presumption.’280 In that event, courts apply ‘strict scrutiny…

Just as I have argued since the first article in this series, and as Perry’s lawyers argued, the prosecution is attempting to use an over-broad and unconstitutional statute, and is inappropriately interpreting and applying the other, to exact political punishment:

We conclude that the proscription’s overreach into First Amendment-protected territory is to an extent and nature that cannot merely be left to remedy though future case-by-case adjudication. The proscription, as we have seen, can be fairly said to be of ‘alarming’ breadth, reaching even a public servant’s declared intention to take or withhold action lawfully, aimed at bringing about another public servant’s lawful action that the first public servant could lawfully demand or require…The statutes would criminalize many utterances that are ordinary and commonplace in the day-to-day working of government–and are protected by the First Amendment.

Final Thoughts:

I suspect Buzbee is correct: this remaining charge will not survive. When former US Senator Kay Bailey Hutchinson was indicted by the same prosecutor’s office, her case was dismissed immediately after the trial was convened, without a word of testimony being heard. The same can and should happen here.

That does not mean that the prosecution might not try to add additional charges, or to otherwise harass and harm Perry, which is the point of this exercise. The process is the punishment, regardless of the outcome, and the prosecution will suffer not at all for bringing unethical charges against an innocent man.  Ethical people, people with a conscience, would never have brought such charges in the first place.

While there is, for the moment, little evidence that these charges are obviously harming Perry’s presidential aspirations, they certainly are not helping. As with every political prosecution undertaken by this prosecutor’s office, they will, eventually lose, but as always, the greatest losers are justice and the public.

UPDATE, 072515 2230 CST: Often when I write on topics of significant public interest and importance–and separation of powers issues fit that category whether the US Congress is smart enough to understand it or not–I often, after I’ve posted the article, discover that others have taken a different approach to the same material. So it is with this case.

Law prof. and blogger Eugene Volokh at The Volokh Conspiracy has a very instructive article everyone should read. It focuses on the remaining count in the indictment against Rick Perry, which is also a violation of core constitutional principles, but because it could theoretically be applied in constitutionally acceptable ways–the dismissed count could not–Texas procedure does not allow it to be dismissed prior to trial.

The core of Volokh’s argument is that the Texas legislature cannot criminalize a governor’s exercise of veto power. It matters not whether the legislature actually intended to do that; it’s unconstitutional. However, in this case, clearly, the prosecution was merely looking for anything that might possibly be construed by a friendly, politically motivated jury, to be illegal regardless of the law and the Constitution. This statute obviously seemed like it could be twisted to their purposes. In other words, this one isn’t even close. The Prosecution had to know they were blatantly violating the Constitution and wrongfully prosecuting Perry, or they have no business claiming to be lawyers.

By all means, take the link. If Volokh is right, and I certainly agree with his reasoning, the only question is when this case against Perry will entirely fail.