credit: politico.com

credit: politico.com

As regular readers know, I’ve been following the bizarre case of Texas hardball Progressives politics involving former Governor Rick Perry for some time. Perry is merely the latest Republican political figure prosecuted by the corrupt progressive prosecutors of the Austin prosecutor’s office for blatantly political reasons. These illegal, immoral and anti-democratic persecutions have never produced a sustained conviction, but they have achieved their ultimate goal of ending the political careers of their targets.

Kay Bailey Hutchinson’s case was dismissed minutes after the commencement of the trial before any testimony was taken. Tom DeLay’s case was eventually dismissed, but not before he spent millions of dollars and many years pursuing vindication.

In Perry’s case, it’s impossible to say with certainty that the prosecution hanging over his head ended his White House bid on September 11, 2015, but it surely didn’t help. In Rick Perry: Prosecutor Hardest Hit, I reiterated the basis for the charges, which I do here again for the convenience of readers:

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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.

One of the two charges was dismissed by the Texas Court of Criminal Appeals. Now, Perry’s legal team, and a powerful group of Amici, who have filed a persuasive friend of the court brief on behalf of Perry, have returned to the Appeals Court, hoping that have the second charge struck down. The Washington Post writes (“I” is law professor and Volokh Conspiracy blogger Eugene Volokh):

On Wednesday I had the honor and pleasure of participating in the oral argument in the Rick Perry case before the Texas Court of Criminal Appeals. I was representing friends of the court, 19 academics, authors, ex-prosecutors, and ex-judges on all sides of the political spectrum — ranging from Professor Alan Dershowitz, Professor Nate Persily, Jeff Blackburn (Innocence Project of Texas), and former Texas Supreme Court justice Raul A. Gonzalez to Professor and former judge Michael McConnell, former attorney general Michael Mukasey, and former solicitors general Ted Olson and Ken Starr. I also co-signed the brief as a signatory, not just as a lawyer, so this brief does express my personal views.

As readers of the blog might gather, all this started with several blog posts I wrote right after the Perry indictment was handed down. A reader suggested that I do an amicus brief; I got in touch with my old friend Jim Ho at Gibson, Dunn & Crutcher, and Prerak Shah, Jim and I wrote a brief before the trial court, which we then (with Bradley Hubbard) revised into a brief before the Texas Court of Appeals and then the Texas Court of Criminal Appeals. You can read the brief here, if you’re so inclined, and you can also hear both hours of the oral argument here (the first hour is about the veto count, and the second hour is about the threat-of-veto count).

The local Austin newspaper also reported on the hearing: 

Charging former Gov. Rick Perry with crimes related to his legal use of a veto in 2013 was improper and dangerous, leaving no option but to dismiss the case against him, a defense lawyer told the state’s highest criminal court Wednesday.

Forcing Perry to endure the rigors of a trial on improper charges that he abused his powers as governor would not only violate his rights, it would set a risky precedent by allowing ‘any prosecutor to indict any governor for any exercise of the veto,’ defense lawyer David Botsford argued.

‘The danger of allowing a prosecutor to do this is mind boggling,’ Botsford told the Court of Criminal Appeals during oral arguments.

Perry’s veto of $7.5 million for Travis County’s Public Integrity Unit — delivered after District Attorney Rosemary Lehmberg refused Perry’s calls to resign after her conviction for drunken driving — was protected by the Texas Constitution, which gives governor’s “absolute discretion” on vetoes, Botsford said.

It is indeed mind-boggling, which was plainly evident when the prosecution employed the Pelosi argument: we can’t dismiss these charges even if they are immoral, wrong, impractical and unconstitutional. We have to have the trial to see what’s in them first!

But State Prosecuting Attorney Lisa McMinn said Perry’s legal team was jumping the gun. Until Perry is tried in court, there is no way to determine whether abuse-of-power laws have been unconstitutionally applied to the former governor, she said.

‘There has to be a trial before you know what the facts are,’ McMinn argued. ‘(This) court has said that we don’t want to have minitrials before trial, that those claims can wait until trial when all the facts come in.

This is absolute nonsense. The facts are not in dispute. Perry is being prosecuted for employing a veto threat–a lawful act–to encourage a corrupt public official to resign, which is also a lawful act. Governors must have absolute immunity for their use of their constitutional veto power. No criminal trial is necessary to understand or decide such issues.

Fortunately, it appears that the justices are sympathetic to the Constitution:

In a series of pointed questions and skeptical comments, many of the eight judges who heard Wednesday’s arguments indicated a level of sympathy for Perry’s arguments.

Judge Kevin Yeary asked why a defendant shouldn’t be allowed to avoid prosecution if a judge can read an indictment and recognize ‘that we are wasting his time by going to trial.’

Judge Michael Keasler wondered why a defendant would have to wait for a trial if every allegation in an indictment, even if proved beyond a reasonable doubt, ‘still wouldn’t be enough’ to support a conviction.

Presiding Judge Sharon Keller stated her reservations most bluntly. ‘What is the defendant supposed to do if he can’t challenge this pretrial and someone has brought charges against him for improper reasons?’ she asked, emphasizing that she was speaking generally and not about the specifics of Perry’s case.

‘If someone is subject to a charge that will eventually be dismissed on (constitutional) grounds,’ Keller said, ‘is there any way for a defendant … to protect himself against a long, drawn-out trial, or is that just one of the dangers of the legal system?

And this is precisely the point. The Progressive persecutors involved in this case understand very well that the process, regardless of the eventual outcome, is the punishment. They wish to keep Governor Perry caught up in a nightmarish legal maelstrom for as long as possible, draining his finances and punishing him for being an effective and successful Republican Governor.

I recommend that you, gentle readers, take the link and read the Amicus brief submitted in this case. It is not long, and clearly states the constitutional issues. Some examples:

INTRODUCTION

When he was governor, Rick Perry announced that he would exercise his constitutional authority to veto a bill if another political official did not do what he wanted. Then he vetoed that bill. For these two ordinary political acts, Governor Perry has been indicted on felony charges.

Both counts of the indictment are unconstitutional and must be dismissed immediately. The first count—which criminalizes Governor Perry’s veto of a bill—violates the separation of powers enshrined in the Texas Constitution. The Legislature is not allowed to criminalize the exercise of powers that the Constitution specifically confers on the Governor, including the veto power.

And the second count—which criminalizes Governor Perry’s threat to veto a bill if Travis County District Attorney Rosemary Lehmberg did not resign her office—violates the First Amendment of the U.S. Constitution and Article I, Section 8 of the Texas Constitution. Governor Perry “threatened” to perform a lawful act that the Texas Constitution specifically reserves to him (a veto) in order to encourage a public official to engage in a lawful act (a resignation). That is constitutionally protected speech.

The Third Court of Appeals in Austin correctly declared the statute in Count II to be facially unconstitutional. But the court of appeals erred in holding that Count I could proceed, concluding that it was bound by this Court’s precedent to not consider the challenges Governor Perry had levied against Count I at this point…

This Court should finish the job that the Third Court of Appeals started. It should affirm the Third Court’s decision to declare the statute at issue in Count II facially unconstitutional and also declare the statute at issue in Count I to be unconstitutional as applied to the prosecution of Governor Perry.

Speaking specifically to the remaining second count of the original indictment, Volokh argued:

Count II of the Indictment Should Be Dismissed, Because It Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.

Count II of the indictment alleges that Governor Perry violated the law by ‘threatening’ to use his veto powers if a government official did not resign her post. But he has every right to do just that. Criminalizing Governor Perry’s threat to veto legislation violates his right to freedom of speech under the Texas and U.S. Constitutions. This Count must also be dismissed, as the Third Court of Appeals correctly concluded.

  1. A political official has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).

Volokh also cited the very specific and direct Texas precedent involved:

The Waco Court of Appeals said precisely that in a similar case twenty-five years ago. See State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no writ). In that case, a county judge ‘was charged with having made a threat to take action as a public official in an attempt to coerce another public official into performing an official act.’ Id. at 272. Specifically, the defendant in Hanson threatened to terminate some of the county’s funding in order to coerce a district judge to fire a county auditor and to coerce a county attorney to revoke an individual’s probation. Id. at 271-72. Both the trial court and the court of appeals correctly dismissed the charges. As the court explained, in this sort of political context, ‘[c]oercion of a lawful act by a threat of lawful action is protected free expression.’ Id. at 272.

So too here. Governor Perry has been charged with attempting to ‘coerce’ a lawful, official act (the voluntary resignation of a public official) by threatening to take a lawful, official act (the veto of an appropriations bill). That is protected free expression, and the Governor cannot be prosecuted for it.

The prosecution has previously attempted to distinguish Hanson by suggesting that Governor Perry was acting unlawfully when he made his alleged… ‘threat,” because he did not have the authority or control to request the resignation of D.A. Lehmberg. Appellee’s COA Br. 25. But government officials are obviously allowed to use their powers to influence even those over whom they do not have direct supervision. A Senator may condition his vote for an appropriations bill on the resignation of a Cabinet Secretary, even though only the President can fire the Secretary. A President may threaten to veto a bill unless Senators agree to ratify a treaty, even though the President has no authority to directly mandate the signing of the treaty. There is nothing criminal about this sort of political hardball.

Hopefully, this crude and destructive act of political revenge will soon be forcibly stopped in its tracks.

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