Patterico's Pontifications

8/16/2014

Jonathan Chait Is Correct: “This Indictment Of Rick Perry Is Unbelievably Ridiculous” (With Bonus Detailed Legal Analysis!)

Filed under: General — Patterico @ 3:09 pm

Jonathan Chait — lefty leftist Jonathan Chait, I say! — admits today that the indictment of Rick Perry is absurd. Don’t believe me? In a post titled This Indictment Of Rick Perry Is Unbelievably Ridiculous (yes, that is really the title), Chait says:

They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. The conventions of reporting — which treat the fact of an indictment as the primary news, and its merit as a secondary analytic question — make it difficult for people reading the news to grasp just how farfetched this indictment is.

. . . .

The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.

I often find Chait irritating, but I appreciate his honesty and spot-on analysis here — and, as you can discern from his last sentence, his conclusion does not flow from any love for Rick Perry. Likewise, I guarantee you that I would be equally critical of such an absurd indictment whether it were brought by a Republican or a Democrat, against a Republican or a Democrat.

There seems to be a lot of confusion out there about what is actually alleged and why it’s so silly, so I have done some work to try to make it clear to you, the interested and educated non-lawyer (and to the lawyers too!). I’ll bury the legal analysis under the fold, but trust me: it’s interesting and I try to make it easy to understand. Click on the “more” button if you’re interested.

Let’s take a look at the actual indictment and statutes at issue, so that you will fully understand how utterly ridiculous this whole thing is. Start with the indictment. It charges two counts: Count One, Abuse of Official Capacity in violation of Texas Penal Code section 39.02; and Count Two, Coercion of a Public Servant in violation of Texas Penal Code 36.03.

Let’s start with Count Two, Coercion of a Public Servant, since the most commentary has been offered concerning this count. Here is the relevant statute: Texas Penal Code 36.03:

§ 36.03. COERCION OF PUBLIC SERVANT OR VOTER. (a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.

Subsection (1) is the relevant part. The indictment claims Perry attempted to influence Rosemary Lehmberg “in the specific performance of her official duty” to “continue to carry out her responsibilities as the elected district attorney for the County of Travis through the completion of her elected term of office.”

If the statute did not contain an exception, this language would be absurdly overbroad. In Texas, “coercion” includes a threat “to take or withhold action as a public servant, or to cause a public servant to take or withhold action.” So, without an exception, the language of the statute would criminalize any threat by a public servant to influence a public official in the performance of their duty. To take an (unrelated) example, if someone in government told their employee: “tell the truth to the legislature or I will fire you,” someone could claim they were thereby trying to prevent a public official from doing their duty through “coercion.” (So, if such a law applied to the federal government, then Barack Obama could not threaten to fire a top official for, say, lying to Congress. It would be legally prohibited, rather than what it is: legal, but impossible to imagine.)

So the law can’t be that broad, and in fact, the statute has an exception:

(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.

Under Article 4 of the Texas Constitution, Rick Perry is the Chief Executive Officer of the State, and thus a member of the Executive Department of the State. That sounds like a “governing body” to me. Doesn’t he fall within this exception? Certainly his veto does.

The indictment appears to try to address this exception in two ways. First, this count addresses, not the veto, but rather Perry’s actions in threatening a veto. As Chait explains:

The prosecutors claim that, while vetoing the bill may be an official action, threatening a veto is not. Of course the threat of the veto is an integral part of its function. The legislature can hardly negotiate with the governor if he won’t tell them in advance what he plans to veto. This is why, when you say the word “veto,” the next word that springs to mind is “threat.” That’s how vetoes work.

True enough. In fact, I think such a threat falls squarely within the exception for “deliberations” by the governing body. “Deliberations” include discussions about whether an action is going to be taken, including bargaining over whether an action is going to be taken. That bargaining, as long as it is not legally bribery, includes things like logrolling, horse trading — and yes, even “threats.” (“If you don’t vote for this tax exemption, I will lobby every member of this body to kill the military base in your district, and your political career will be OVER!!!”)

Which leads us to the second problem with this count: the First Amendment. The indictment makes a point of saying that Perry and Lehmberg are “not members of the same governing body of a governmental entity.” (My emphasis.) The indictment does not make the relevance of this clear, but I’m guessing that prosecutors will argue that, while Perry could certainly influence Lehmberg to resign if he had direct authority over her, he cannot do so because he is a member of a different governing body than she is.

This is where Eugene Volokh adds value to the analysis with a First Amendment argument about citizens’ right to make lawful threats a part of their rough-and-tumble political discourse.

There is already case law addressing a very similar situation, and it helps Perry considerably. The case is State v. Hanson (Tex. Ct. App. 1994), which notably addressed an official’s attempt to influence the actions of a D.A. by threatening to cut the D.A.’s salary:

The state alleged that she intentionally and knowingly threatened to terminate the county’s funding of the salaries of a deputy district clerk and an assistant district attorney in an attempt to coerce the district judge into firing the county auditor and the county attorney into revoking a misdemeanant’s probation.

It might sound odd to read about a judge threatening to terminate funding, but the opinion explains that the judge was actually the “budget officer for Bosque County” as well as “the presiding officer of the commissioners’ court.”

Frankly, a judge trying to interfere with a D.A.’s decisionmaking process by threatening to cut the D.A.’s salary strikes me as a bit troubling. Conversely, I have no moral qualms about a governor using his lawful veto power over funding to seek the resignation of a D.A. who is on tape drunkenly threatening sheriff’s deputies and trying to use her influence to get out of jail. The former situation feels like an abuse of power while the latter (to me) does not. [UPDATE: Perhaps the reason is because Perry did not actually seek to influence a “specific performance of [her] official duty” as required by the statute, while the judge in the case cited by Volokh did. Thanks to @justkarl for noting this. It’s a major flaw in the prosecution.]

But even in the former situation, the Texas Court of Appeals found a First Amendment problem. As the “budget officer for Bosque County,” the judge had lawful authority to cut a D.A.’s salary. As “the presiding officer of the commissioners’ court,” the judge had lawful authority to request the D.A. to seek revocation of a misdemeanant’s probation, and the D.A. had lawful authority to seek that revocation. The Court said — and this quote is very, very important, so pay attention here: “Coercion of a lawful act by a threat of lawful action is protected free expression.” The court said that the statute (back when it lacked the exception discussed above) violated the First Amendment, because it was too vague to put the judge on notice as to when her use of lawful authority to coerce lawful action might be considered to violate the statute.

Volokh says this case appears to govern Perry’s situation, and I agree. To the extent that Perry’s actions do not fall within the statutory exception — and I think they do — the statute is unconstitutionally overbroad and violates the First Amendment.

Which is a really long way of saying: threatening a veto is a not a felony.

Oh, but we’re only halfway done, because there’s still Count One to contend with. This count is even more ridiculous than the other count, if such a thing is possible, because it actually attempts to criminalize Perry’s veto. Wait until you actually understand the theory they’re using: namely, that a governor has criminally misused legislative appropriations if he vetoes their expenditure “with intent to harm another.”

Here is the relevant statute, Texas Penal Code section 39.02:

§ 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant’s office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is:
(1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;
(2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500;
(3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500;
(4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000;
(5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000;
or
(7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.

The purpose of a statute like this is clear. If you are a public servant, and you use government property, you can’t defraud the public by misusing it for your own private purposes. For example, if the government gives you a “county car” and tells you that you can use it to drive to and from work, you can’t drive it across the country to visit grandma, to save wear and tear on your own vehicle.

How does the indictment claim that Perry “misused” government property? Here’s what it says, and I am not making this up. It says Perry, “with intent to harm” Lehmberg and her Public Integrity Unit,

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 office he took as a public servant, such government property being monies in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s [here the indictment is cut off in every version I have seen, and resumes on page two with the following language, which itself is cut off and almost unreadable] defendant’s office as a public servant, namely, Governor of the State of Texas.

Congratulations to all the news organizations who claim to have provided the “full indictment” without noticing that there is at least one line completely missing from the document. Heckuva job, guys! I assume the omitted language says something about the “government property” coming into Perry’s custody or possession by virtue of his office.

Chait dismisses this by saying: “The veto threat, according to the prosecutor, amounted to a ‘misuse.’ Why? That is hard to say.” But I think this misses the point. This count does not criminalize the threat, but the veto.

Here’s the evidence that this count addresses the veto, and not the threat to veto. If you look at the dates of the two offenses, Count Two, criminalizing the veto, is alleged to have occurred from June 10 to June 14, 2013. That embraces the period of time when Perry was threatening the veto, as well as the date of the veto itself: June 14, 2013. Count One, by contrast, alleges only the date of June 14. And indeed, it is difficult to see how a mere threat to veto funding could even conceivably be considered a “misuse” of those funds. No, this count is directed specifically at Perry’s exercise of his veto, and claims that is a misuse of funds.

The idea of indicting a governor for exercising his veto power, unless he was bribed to do so, is so utterly ridiculous it’s tough to know where to start. As Perry said in his statement, he has authority under the Texas Constitution to exercise a veto power. A special prosecutor (especially one Obama considered for a U.S. Attorney job, but whose nomination fell victim to politics and a slow confirmation process) might not like Perry’s reason for the veto. But that doesn’t make it a crime.

Applying a statute directed at a public official’s misuse of government funds to a veto of public funds is even more bizarre. Under such a theory, once the Legislature appropriates funds, then they are “held” by the Governor, and if he vetoes their appropriation (and does so with an “intent to harm” the people who were supposed to get the money), that is a “misuse” of public funds — a first degree felony that could send him to state prison, theoretically for the rest of his life. (The punishment would be determined by a left-leaning Travis County jury.) What is the authority for treating public appropriations as property held by the governor? I am aware of none and would be shocked if the statute were interpreted that way.

Which is a long way of saying: issuing a veto is not a felony.

You’ll have to travel far and wide to find a lefty hack so soulless and partisan that they would support this. Even Think Progress seems dubious, for God’s sake.

Words truly fail to describe what an outrageous and unsupportable abuse of prosecutorial power this is. The special prosecutor, Michael McCrum, has no business being given prosecutorial authority — and the fact that Obama considered him for a U.S. Attorney position should deeply frighten anyone who cares about the integrity of the criminal justice system.

UPDATE: Thanks to Instapundit, Jonathan Adler at Volokh, Eugene Volokh, Scott Johnson at PowerLine, rd brewer at Ace’s, and many others for the links.

Volokh’s post dismantling Count One is especially interesting and scholarly, and well worth your time. I think Eugene’s points are similar to those I have made in this post, but he articulates them with considerably more legal analysis and legal specificity.

155 Responses to “Jonathan Chait Is Correct: “This Indictment Of Rick Perry Is Unbelievably Ridiculous” (With Bonus Detailed Legal Analysis!)”

  1. Ding.

    Patterico (9c670f)

  2. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.

    nailed it

    happyfeet (8ce051)

  3. shouldn’t the American Bar Association open an investigation into whether or not this McCrum person is a worthy practitioner of law?

    it seems his actions stand to *greatly* undermine respect for the legal system in Texas and possibly more broadly

    happyfeet (8ce051)

  4. The ham sammich that killed Mama Cass was pretty guilty.

    Gazzer (42663b)

  5. a-ling-a-dingdong

    mojo (00b01f)

  6. Not that anyone should do this, but is the indicting party (perhaps including the grand jury) itself subject to indictment under § 39.02? At some point surely a farcical prosecution rises to an abuse of prosecutorial discretion, and perhaps in turn to an “Abuse of Official Capacity”.

    Perhaps USAG Holder could even construct a “Civil Rights” violation out of this?

    Hmmmmmmm (d78148)

  7. + 1 ! That was all win.

    papertiger (c2d6da)

  8. I saw half a minute of the rachel madcow show last night. she couldn’t contain her glee while stating that Rick Perry had been indicted. This is all for a headline. They did the same $h!t to Sara Palin, Tom Delay, and Ted Stevens. What was the final outcome?

    Let’s face it, dhims don’t play by the same set of rules. If they did, they’d never get elected.

    hadoop (f7d5ba)

  9. I don’t see how resigning (or making it plain one is a prosecutor when nabbed for drunk driving) is interference with a specific duty of office.

    Telling an elected official with money he has power over (which the legislature can override) that he think she’s violated the public trust and is unfit for her GENERAL duties is hardly blocking a prosecution or interfering with an investigation, or some other task she is charged with accomplishing.

    SarahW (267b14)

  10. Oh that didn’t make sense. I just don’t see how Perry got in the way of any specific duty she has.
    He basically said, with ample reason, she wasn’t fit to be the prosecutor.

    SarahW (267b14)

  11. She used her official power to try to get away with a crime, or to be handled differently from other criminals.

    I don’t get to call the sherrif or even my best friend on demand when I’m falling down drunk from drinking vodka all night.

    Usually.

    SarahW (267b14)

  12. Beulah, you spiteful hag. It’s over. Now call a cab and get the hell out of here.

    papertiger (c2d6da)

  13. As asked above,
    is there any possible consequence to the person bringing this indictment, other than a job in the Obama Administration or for some wealthy Dem contributor?

    MD in Philly (f9371b)

  14. Reading about Special Prosecutor Michael McCrum reminded me of another prosecutor, a DA from Durham County, North Carolina, who overstepped his authority, brought bogus charges, and was exposed attempting to railroad Duke Lacrosse players for serious crimes, while at the same time he actively suppressed evidence showing they weren’t guilty. Mike Nifong was removed from office and disbarred.

    ropelight (d138fa)

  15. A grand jury had to sign off on it – so I think what they will get is a bad reputation, and some “thanks a lot” sarcastic contempt from peers and associates – but not much else.

    It was hardly helpful. It’s creating an ugly impression of Dems in that state and making Perry more popular than he otherwise would have been (not to mention creating an issue that is a GOP donation magnet) and making sure everyone knows just how low they will go in the conduct Dems are willing to accept in a public official, for perceived political advantage.

    SarahW (267b14)

  16. It’s not all bad for Beulah. Bound to be an opening in Kamala Harris’ office soon.

    papertiger (c2d6da)

  17. Lucky Kamala

    SarahW (267b14)

  18. a GOP donation magnet i can buy but specifically i don’t think this helps Perry raise monies for a presidential run

    it just doesn’t look like a wise investment

    as goofy as this case is, and like you said, a grand jury did sign off

    which means they could assemble the same sort of witless morons for the trial if it got that far

    which means Perry for reals could lose, no?

    happyfeet (8ce051)

  19. Sorry if this is a stupid question…

    Will Perry have to be arrested and mug shots taken of him?

    This is a blatant political persecution, and the Dems would surely love to have mug shots of Perry to use over and over.

    wheatie (1689b5)

  20. happyfeet (8ce051) — 8/16/2014 @ 4:14 pm

    If it comes to that, we’ll let the Mexicans have you. For realsie this time.

    papertiger (c2d6da)

  21. No blood for oil , Gringo.

    papertiger (c2d6da)

  22. well if money ere involved as in the third attemt to do after Delay, that was thrown out on appeal, then there would be some inpact

    narciso (ee1f88)

  23. Perry should ask the prosecutor “If I resign as governor, will you drop the charges?” If the prosecutor so much as hesitates before saying “absolutely not”, indict him on the same charges, which would be actually true in that case.

    Dr. Weevil (3fb27f)

  24. wow this is going south lickety-split quick like a bunny

    happyfeet (8ce051)

  25. kinda like things in Ferguson, eh, Mr Feets?

    redc1c4 (abd49e)

  26. yeah they’re not listening to me in Ferguson Mr. red

    I told them to target their anger at the police not innocent businesses and people

    the momos are just demonstrating they deserve the abysmal unprofessional thug police they have

    i guess I overestimated my influence on events

    happyfeet (8ce051)

  27. I don’t presume to know the in-and-outs of the relationship between the state level of government and the county vis-a-vis the use of state funds for the Public Integrity Unit of the Travis County District Attorney’s office. However if any part of the state decides to withhold its funds from a lower-level governmental unit, as it appears to be in this case, this sounds like a tough-sh*t situation for the county; it wasn’t the county’s money to begin with. Now the county may have standing to sue the state (or Perry in particular) in civil court if the money was already promised to the county. But just on this basis alone, I fail to see how there is a criminal case.

    Definitely weak sauce in terms of a criminal case. As has been said at other sites, Perry needs to own this. He needs to come right out and say, “Yes, I vetoed those funds. And I would do it again without hesitation. This allegation against me is plainly an attempt to discredit me and to defend the action of a corrupt individual within the Travis County District Attorney’s office. Let’s cut to the video, shall we?” Roll footage of Lehmberg’s arrest and booking. Instant win for Perry.

    Travis County dems need to also remember that the blade of Texas law can swing both ways.

    shinjinrui (47f3a0)

  28. This is a blatant political persecution, and the Dems would surely love to have mug shots of Perry to use over and over.
    wheatie (1689b5) — 8/16/2014 @ 4:18 pm

    Well, as mentioned elsewhere, the trick is to have a big sh*t-eating grin on your face, just like Tom Delay did. Makes it harder to use in a negative ad.

    Gazzer (42663b)

  29. Perry needs to own this. He needs to come right out and say, “Yes, I vetoed those funds. And I would do it again without hesitation. This allegation against me is plainly an attempt to discredit me and to defend the action of a corrupt individual within the Travis County District Attorney’s office.

    Oh, he’s done that. He has owned it, in spades, and it’s great to watch. Check it out.

    Patterico (9c670f)

  30. What most people don’t understand is that while Rosemary Lehmberg, public drunk, is the Travis County DA, she also heads the Texas Public Integrity Unit, which has state wide authority. So her power extends not just in Travis County, but state wide. Having a documented drunk, who tried to use her position to get out of being charged on a DWI, harassing law enforcement officers, and having the county pick up the $600.00 an hour for an out of state defense attorney for her, yeah, most Texans wanted her gone.

    One other thing of note; this indictment was pushed by a group that calls itself “Texans For Public Justice.” It is a far left group funded by tort lawyers. Guess those ambulance chasers are still hacked that Perry managed to get tort reform passed. Two tort lawyers funded 1/3 of their total funding in 2006. After pouring tons of money into getting Perry defeated, all they were left with were cancelled checks.

    Texans for Public Justice aren’t just going after Rick Perry. They want an investigation into Ken Paxton, the Republican candidate for Texas Attorney General and also want to reinstate charges against Tom DeLay, even after DeLay was exonerated by a appeals court. This is a group of tort lawyers with a “public justice” front that aims to turn Texas blue, one litigation at a time.

    So now we have a party defending drunks and drunk driving and they claim the high ground? I think not.

    retire05 (d55fe8)

  31. since 2003, average malpractice insurance premiums have fallen 46 percent.

    happyfeet (8ce051)

  32. This is when we need DRJ.

    A favor– Would someone with a good grasp of both Texas law and Texas politics do a brief primer on the technicalities of how this all came to pass. (Not the indictment itself or the flimsy “facts” or the political motivation because all that’s obvious) but going back to even calling the grand jury in the first place. Does the drunk have authority to name a special prosecutor for any reason any time she wants–not to mention a specific special prosecutor in McCrumm, and can she alone sign off on the whole shebang and spend the state’s money without anyone else being consulted and authorizing it? Do knowledgeable people think every single lawyer and staffer in her office was behind this and essentially said, “yup, this is a great idea” without any pushback or discussion or could the whole thing have been done in deep secret involving just her and a couple of other ambitious/corrupt people?

    Finally, do others here think the hand of the DNC was weighing in on this action and encouraged her, helped her, coached her? Or, in contrast is the national D. party angry and horrified both at what she has done, how skeevy she is, and recognize the danger to them by how the national legal press and people respected in the legal profession are quite predictably responding to this so negatively on a nearly uniform basis?

    elissa (94b049)

  33. elissa it seems to me that after the success with Palin the fascists developed a dedicated lawfare unit

    happyfeet (8ce051)

  34. elissa, when does our assignment have to be in by?

    Gazzer (42663b)

  35. Oh, by the end of my baseball game is fine–about 2.5 hrs, gazzer. :)

    elissa (94b049)

  36. I’m on it…

    Gazzer (42663b)

  37. Related musical selection:

    https://www.youtube.com/watch?v=tr6H1a7YUac

    daleyrocks (bf33e9)

  38. I guess the prosecutor is so used to getting warrants that ignore naming specific items or people, as the Constitution suggests, that he just blew past the need to say what specific duty the Governor ws trying to influence (and in what direction).

    If he had said: “Drop the prosecution of my buddy Mr. Big, or I will veto your funding”, there would be hell to pay. He still might be exempt as the law might be seen as impermissibly limiting a constitutional power, or through some executive supervisory role, but demanding someone resign is pretty much the epitome of non-specificity as to her future official actions (“Don’t do anything at all ever again in that office.”)

    Kevin M (b357ee)

  39. It would seem that there is a point ion that arrest video, where the DA demands that the officers stop booking her and call the Sheriff in to fix everything, that she is in direct violation of 36.03(a)1.

    Kevin M (b357ee)

  40. daleyrocks (bf33e9) — 8/16/2014 @ 5:34 pm

    Holy 1970, Batman!! Look at that hair!!

    Linked to that song are a bunch of my favorite AM tunes from back in the day,
    But I have a question, why were music videos made back then, and who watched them and where?
    The only music videos I knew of back then were on the “Monkees”.

    MD in Philly (f9371b)

  41. In England they had popular TV shows that often featured accompanying films. Early vids if you will.

    Gazzer (42663b)

  42. Or, in contrast is the national D. party angry and horrified both at what she has done, how skeevy she is, and recognize the danger to them by how the national legal press and people respected in the legal profession are quite predictably responding to this so negatively on a nearly uniform basis?

    I doubt the almost all of the DNC would want #DemocratsForDrunkDrivers to be the meme in the coming election.

    here is a tweet from Debbie Wassermann-Schultz.

    https://twitter.com/DWStweets/status/500709661595926528

    Michael Ejercito (becea5)

  43. Gazzer (42663b) — 8/16/2014 @ 6:07 pm

    Thanks, Gazzer. Nobody ever told me about music videos before MTV. I thought I had seen the only one ever made with “Daydream Believer” in black and white (on our TV, anyway).

    I was thinking maybe someone knew that You Tube would come along one day and wanted to be prepared, kind of a subplot to “Back to the Future”.

    MD in Philly (f9371b)

  44. If you go to Youtube and search for Top of the Pops you will get lost in a world of 60s and 70s nostalgia. Trust me…

    Gazzer (42663b)

  45. A couple of points of clarification:

    In most rural counties in Texas, the county judge wears two hats. He or she is the chief judicial officer for civil and criminal cases that do not have original jurisdiction in the state District Court with jurisdiction over that county (e.g., felonies and civil cases above a numerical limit). The Justices of the Peace, in their respective precincts, will have referred jurisdiction for certain classes of misdemeanors and small civil claims. The county judge is also the presiding officer of Commissioners Court and is the county’s chief administrative officer (in essence, head of the executive branch for the county). This is why the county judge was also the county’s chief budget officer in Hanson. In the large urban counties (e.g., Harris, Dallas, Tarrant, Bexar) the county judge’s role is purely administrative and County Courts at Law have been created to perform that county-level judicial function.

    The county attorney was also mentioned above. The county attorney is not a prosecutor — the county attorney’s office handles civil claims by and against the county, advises the commissioners on the legality of actions, etc,. — basically is the county’s general counsel, and may supervise the county’s probation department (which is what was at issue in the Hanson case). In many rural counties, this is a part-time job and the county attorney has a normal legal practice — and depending on just how rural the county is, may not live in the county.

    JimB82 (8968f9)

  46. The indictment of Rick Perry reminds me of the banana-republic politics pervasive in countries like Argentina. For example, that nation’s president, Cristina Kirchner (sort of a latter-day Evita Peron, replete with her nightmarish leftism and all) has made it illegal for non-official government sources in Argentina to report the actual rate of inflation.

    What’s really sickening is I bet the grand jury and prosecutor in the matter of Governor Perry would do nothing but twirl their thumbs if they had to judge all the malfeasance swirling around Obama and his band of leftists/Democrats. I can easily envision those jurors and Michael McCrum sputtering things like “but the IRS’s computers had technical glitches, just like what I’ve experienced with my own PCs through the years! Okay, next case!”

    Mark (a847d2)

  47. the fact that Obama considered him for a U.S. Attorney position should deeply frighten anyone who cares about the integrity of the criminal justice system

    .

    McCrum’s nomination for US attorney was supported by both the states’s Republican senators. He was appointed special prosecutor in this case by a judge appointed by George W. Bush when he was governor. Doesn’t sound like a partisan witch-hunter to me.

    Robert Levine (8d6545)

  48. Doesn’t sound like a partisan witch-hunter to me.

    I recall the judge who decided California’s Proposition 8 (the ballot measure in support of traditional marriage) and ruled against it a few years ago was described by supporters of his decision as being a Republican. But a few simple checks of his philosophical biases indicated he was pretty much of a liberal or, at best, a big squish—not to mention his being homosexual (and a high percentage of such people lean left).

    I wouldn’t be surprised if one got to the core of what makes McCrum tick, his liberalism would be detectable from even a mile away.

    Mark (a847d2)

  49. The old joke was “you don’t have to be crazy to be a Democrat, but it helps” is obviously no longer true. “You are crazy if you are a Democrat” is now the rule.

    WarEagle82 (b18ccf)

  50. “McCrum’s nomination for US attorney was supported by both the states’s Republican senators.”

    Robert Levine – He was also supported by Texas House Democrats, which was supposed to make him a shoe-in candidate.

    daleyrocks (bf33e9)

  51. i always thought it was shoo-in Mr. daley

    not to be punctilious

    happyfeet (8ce051)

  52. kevin M. Touched on this above, but I’m wondering. Say the the gubner got stopped in Travis county for doing 46 in a 45 zone, gives the cop a whole boatload of “do you know who I am” and gets his gubernatorial a$$ arrested. So he goes back and picks up the batphone, calls the DA and says: either resign or I’ll veto your office’s funding. Is he still in the clear?

    Full disclosure, IANAL and only play one in the comments sections.

    Oldav8r (a998a2)

  53. Say the the gubner got stopped in Travis county for doing 46 in a 45 zone, gives the cop a whole boatload of “do you know who I am” and gets his gubernatorial a$$ arrested. So he goes back and picks up the batphone, calls the DA and says: either resign or I’ll veto your office’s funding. Is he still in the clear?

    No, because it would constitute obstruction of justice, as it would be fairly tracebale to the DUI arrest. In this case, it is the DUI of the D.A. which is the reason for the veto threat.

    Michael Ejercito (becea5)

  54. Mr. Feets – I know you got you finger on the pulse of Texas and the Senate. What happened?

    daleyrocks (bf33e9)

  55. MD in Philly – I thought somebody could prolly do a pretty good mashup of that song and Rosemary’s arrest vids for important journalistic purposes.

    daleyrocks (bf33e9)

  56. i dunno i tell you what though i don’t take as many days off as that president feller

    happyfeet (8ce051)

  57. daley, you might be right, but I think that would be an injustice to the song.
    In fact, I bet any surviving band members could file a defamation suit that would have a much stronger basis in fact than the indictment.

    MD in Philly (f9371b)

  58. MD here;s a vid I remembered whilst walking the dog, from back in the day. It’s one of those songs you remember, but it creeps you out a tad today.
    https://www.youtube.com/watch?v=hn0ZJHVH17I

    Gazzer (42663b)

  59. So he goes back and picks up the batphone, calls the DA and says: either resign or I’ll veto your office’s funding. Is he still in the clear?

    Yes, because, again, it is unrelated to any specific action, for or against. He’s still arrested.

    If he said instead “Get these charges dropped or I’ll veto that appropriation” it would fall under the letter of 36.03(a)1.

    However, while the threat could be charged in that case, it is unlikely the actual veto could be criminalized, as the Governor’s veto authority is not limited in the constitution. Unless there are weasel words therein allowing subsequent statutes to limit the the seemingly plenary veto authority, I don’t see how the Governor can be indicted for vetoing something.

    Kevin M (b357ee)

  60. Patterico,

    Perhaps there are parts of the law that you’ve excluded that discuss this, but suppose I want a building permit and I’m denied for some specious reason (e.g. they want me to grant an easement and I won’t). So I call up my city councilman and say if I don’t get a permit I’m going to give money to his opponent next election. Probably not a wise thing to do, but is it actionable under this law?

    Kevin M (b357ee)

  61. Reading further, I see #62 is probably covered by the 1st Amendment, which really starts making the whole statute suspect.

    Kevin M (b357ee)

  62. I wonder if this is payback for Perry dissing the USA nomination. Hopefully McCrumm never threatened he’d retaliate if Perry didn’t back him.

    Kevin M (b357ee)

  63. What most people don’t understand is that while Rosemary Lehmberg, public drunk, is the Travis County DA, she also heads the Texas Public Integrity Unit, which has state wide authority. So her power extends not just in Travis County, but state wide. Having a documented drunk, who tried to use her position to get out of being charged on a DWI, harassing law enforcement officers,

    Surely that was a violation of this statute, for real this time. Indict her!

    Milhouse (9d71c3)

  64. I have been known to get my load on. But then, I’m not trying to head up your state’s public integrity unit. This is ridiculous.

    And yes, Pat, you were too nice.

    I realize this is the wrong thread, but, yeah, too nice.

    Steve57 (5f6c2a)

  65. It might sound odd to read about a judge threatening to terminate funding, but the opinion explains that the judge was actually the “budget officer for Bosque County” as well as “the presiding officer of the commissioners’ court.”

    To elaborate on JimB82′s comment (No. 47, above) about the County Judge and the County Commissioner’s Court:

    In Texas, the County Judge is the chief administrator of the county, like a very weak governor. He or she presides over the County Commissioner’s Court, but has just one of five votes on this :court.” The County Commissioner’s Court governs the county, primarily through the power of the setting a budget. It has four other members. In some small counties, the County Judge does actually serve as a judge on a limited-basis. County Judges and County Commissioners often are not lawyers.

    This is part of the decentralization of Texas government in its 1876 Constitution, still in effect as amended many times. Administrative heads of the county (e.g. Treasurer, Tax Assessor, District Attorney) are also elected, but have their budgets determined by the County Commissioner’s Court.

    The state government has far broader power than the county government, but county governments typically administrate as they please within the structure provided by the state constitution and state law. At the state level of government, both the Attorney General and the Lieutenant Governor are more powerful than the governor. The Texas governor is the second-weakest governor in the country, although in recent decades its appointment power has grown.

    County Judge (76f185)

  66. Give Travis County back to Mexico, with apologies for ever having taken it in the first place.

    Problem solved.

    Micha Elyi (7dbb24)

  67. Perhaps there are parts of the law that you’ve excluded that discuss this, but suppose I want a building permit and I’m denied for some specious reason (e.g. they want me to grant an easement and I won’t). So I call up my city councilman and say if I don’t get a permit I’m going to give money to his opponent next election. Probably not a wise thing to do, but is it actionable under this law?

    Kevin M (b357ee) — 8/16/2014 @ 7:44 pm

    I’m most certainly NOT Patterico (first off, I’m nowhere near as yellow as his pic suggests :p), but I should think not. In your instance, I would believe you’re practicing free speech as guaranteed by both the state and federal Constitutions. Their only response to you would be- should be- “grant the easement or you get no permit from us”. The city/county/state will have myriad reasons for wanting that easement. Some legal, some actionable. But you can’t be prosecuted for threatening to use your First Amendment right.

    Please do note- I’m nobody smart, just a car electrician. My legal opinion is worth less than the pixels it cost to type this answer out.

    Bill H (f9e4cd)

  68. Before the musical interludes, I was asking myself this: Are those in support of this indictment saying that it is improper, no, illegal, criminally illegal, for a governor, Texas governor, to threaten a veto of a bill should it come to his desk?

    It seems that the stock in trade of most governors, and Presidents for that matter, to announce that if some bill reaches his desk with X Y Z still in it, he will veto it… or if it arrives without ABC, he will veto it. This has been a normal part of the process of the chief executive influencing the legislature forever. The legislature also has the authority to say “veto it twice if you wish, we have the votes to override it”. Its all part of the process. Texas adds the extra twist of giving the governor the line-item veto, it appears.

    I wonder how happy that DA is to have her deuce [yes, I'm a CA guy] dragged back onto the front page, booking videos and all.

    Gramps, the original (32da3f)

  69. Are those in support of this indictment saying that it is improper, no, illegal, criminally illegal, for a governor, Texas governor, to threaten a veto of a bill should it come to his desk?

    The bigger question is, how do they defend the indictment without coming across as defending a head of an agency in charge of public integrity who was convicted of driving drunk while in office?

    Michael Ejercito (becea5)

  70. Milhouse – that’s been my question. How on earth is the indictment against the governor possible without showing that an equivalent indictment could be made again Lelmberg, McCrum, and any others involved in bringing the indictment?

    The veto power cannot be any less protected than the indictment power. Why can’t the Texas Attorney General send the Rangers in to clean house?

    Dave Jacobson (6ce3eb)

  71. I have suspected, since I first heard of this, that Greg Abbott, the present Attorney General and next governor, may be the real target. They, the “they”, would love to dirty him up before November by getting him involved in this nonsense.

    nk (dbc370)

  72. I have suspected, since I first heard of this, that Greg Abbott, the present Attorney General and next governor, may be the real target. They, the “they”, would love to dirty him up before November by getting him involved in this nonsense.

    nk (dbc370) — 8/16/2014 @ 11:16 pm

    I think you might be right. After all, Perry has only a few months left to serve- just enough time for this so-called indictment to lurch it’s way towards a resolution. Perry won’t be wounded by this in Texas politics. And 2016 is too far out for such a desperate stunt.

    Bill H (f9e4cd)

  73. One thing I have noticed is the media spinsters have started mentioning “will Perry need to have a mugshot?”. Yah- they would like that. If that finally comes to pass, I hope to hell he owns it. It’s going to be difficult to use a mugshot against him in 2016 if he’s grinning large and in charge.

    Bill H (f9e4cd)

  74. Michael Ejercito (becea5) — 8/16/2014 @ 10:52 pm

    how do they defend the indictment without coming across as defending a head of an agency in charge of public integrity who was convicted of driving drunk while in office?

    By ignoring the drunk driving arrest, and implying or openly asserting that Rick Perry had a different, corrupt, motive for wanting her gone.

    BY the way, she sees to be clearly guily of the thing they are accusing the Governer of.

    Sammy Finkelman (dbec95)

  75. I think the reason for this indictment is to spoil Mr. Perry for 2016. For evermore,the term “indicted” will be attached to his name just like Bridgegate has been attached to Gov. Christie. A lot of people who don’t pay close attention, or any attention for that matter, will vaguely remember that there was some corruption associated with Mr Perry and not vote for him. The press will remind people by helpfully including a paragraph about this in every news piece about Perry. Expect to see news pieces summarizing “charges were dropped in the controversial public corruption indictment, etc.”. The stories will leave out that the reason for the controversy was that the charges were ridiculous.

    PineBaroness (a1d9be)

  76. From the reading … Isn’t there a better case that the DA SHULD be indicted? It sure looked like she was trying to use the power of her office to influence the sherif/deputy sherif in the course of their duties in a much more direct manner than perry …

    RDM (69c0a4)

  77. I know that a grand jury is meant to be protected by anonymity, but I think this one needs to be smoked out of hiding. Let the public know WHO is abusing their power. It’d make the next one think harder and be more responsible.

    The Travis DA office has a LONG history of abusing this authority and the state legislature needs to remove it’s officeholder prosecution monopoly. Let the state’s major city DAs handle these on a revolving basis.

    Jim Sweet (213cff)

  78. PineBaroness (a1d9be) — 8/17/2014 @ 3:50 am

    That certainly is very true.
    Whether or not that is part of some grand scheme,
    of this is a vendetta for not getting the US attorney job,
    or just being mean against a Repub when he has a chance,
    or some other petty personal reason linked to something we will never know,
    or some combo
    is a guess

    I assume that before a grand jury the case is pretty one sided, that the prosecutor gets to pick and chose the evidence and how to instruct the jurors,
    so if the jurors were not particularly educated on how government works in the first place he could have gotten them to indict a legislator for “trying to change the law” by proposing a piece of legislation.

    MD in Philly (f9371b)

  79. I think it’s payback for embarrassing Obama on the border. National Guard and all that.
    (please ignore partial comment. My fat fingers hit the enter key)

    Rayc (73c7b7)

  80. 79. RDM (69c0a4) — 8/17/2014 @ 5:38 am

    From the reading … Isn’t there a better case that the DA SHULD be indicted? It sure looked like she was trying to use the power of her office to influence the sherif/deputy sherif in the course of their duties in a much more direct manner than perry …

    Yes, but Rick Perry can’t speak to a grand jury.

    Sammy Finkelman (dbec95)

  81. 80. Jim Sweet (213cff) — 8/17/2014 @ 6:13 am

    I know that a grand jury is meant to be protected by anonymity, but I think this one needs to be smoked out of hiding. Let the public know WHO is abusing their power.

    I think the grand jury may very well have refused to return the kind of indictment the Travis County DA wanted, so they had to resort to this. (The DA is after all, the only legal adviser the grand jury has)

    Sammy Finkelman (dbec95)

  82. 81. MD in Philly (f9371b) — 8/17/2014 @ 6:14 am

    if the jurors were not particularly educated on how government works in the first place he could have gotten them to indict a legislator for “trying to change the law” by proposing a piece of legislation.

    Maybe even that.

    Sammy Finkelman (dbec95)

  83. Sounds like the government officials in Austin are very much like California. Are you sure this is not Austin, CA? They would fit right in.

    CB (13da28)

  84. so if the jurors were not particularly educated on how government works in the first place he could have gotten them to indict a legislator for “trying to change the law” by proposing a piece of legislation.

    Beyond that, I wouldn’t be surprised if just about all those jurors are the same types whose philosophy/ideology will make them gladly bestow, as one example, an enormous award to a plaintiff who’s claiming that his lung cancer was caused by, say, R.J. Reynolds, even though the plaintiff started smoking over 40 years ago and didn’t quit his habit until, for instance, 2010. That’s why trial lawyers must smile big and broadly when they can pack a jury with I-love-Obama-, I-love-Hillary-type of people.

    Mark (a847d2)

  85. Re: State v. Hanson …

    In Texas, the chief executive of a county is the “County Judge”. The County Judge does not hear court cases. The County Judge is not a member of the judicial branch at all. Very confusing, I know. It took me nearly a decade of being a Texas resident to figure this out.

    Coog (c514a3)

  86. Did somebody say mugshots? Here is a posed picture of McCrum. http://www.mainjustice.com/2014/08/16/michael-mccrum-special-prosecutor-of-texass-rick-perry-and-the-road-not-taken/ When I first saw it, I thought it was one my “businessmen” clients. Look at those beady little eyes. That weak chin. Those reptilian lips on a cousin-marrying-cousin mouth. Most of all, check out that “is it good to eat?” expression. That is the face of a guy who would sell smallpox-inflected blankets to the Mandans. That he had stolen off dead smallpox victims.

    nk (dbc370)

  87. …here is a tweet from Debbie Wassermann-Schultz.

    https://twitter.com/DWStweets/status/500709661595926528
    Michael Ejercito (becea5) — 8/16/2014 @ 6:12 pm

    Drunk-Driving authority abusing Rosemary – keeping that public trust.

    SarahW (267b14)

  88. Some democrats in Texas are really nice people, but then you also run across the dhimocraps (same ilk as harry reid, nancy pelosi, etc)

    John (decb3d)

  89. 91. Some democrats in Texas are really nice people, but then you also run across the dhimocraps (same ilk as harry reid, nancy pelosi, etc)
    John (decb3d) — 8/17/2014 @ 8:31 am

    This is certainly true of Democrats everywhere, not just Texas. But the thing I find about the nice Democrats is they generally aren’t clued in to what their party is up to. They certainly aren’t in the driver’s seat. The people who are running the party are vile. And I don’t say that because I’m partisan. I started out as a registered Democrat. Once I found out what kind of crowd I had gotten involved with, I recoiled in horror and became partisan.

    I think the current Wendy Davis campaign provides a practical example of what I’m talking about. The only reason she caught the eye of the national party was because of her catheter-aided and futile filibuster for infanticide. Or, late term abortion. But that is the one thing she has to keep a secret from her own natural constituency. Because when the nice Texas Democrats find out about her views on abortion, i.e. it should be legal right up to the moment a woman is about to deliver, they’re turned off.

    The kingmakers in the Democratic party would not have chosen Wendy Davis to be their candidate if it weren’t for her extremist position on abortion. Yet she can not be a viable candidate if the nice Democrats know about it. So they have to lie to their own party members about it.

    Nice Democrats are the ultimate LIVs.

    Steve57 (5f6c2a)

  90. Rosemary Flehmberg
    an ugly drunk just last night
    same state in morning

    Colonel Haiku (c1e551)

  91. Stupid question here–has anyone taken a look at Texas pardon law? If it is constructed conveniently, Perry could basically say: “F*** you lawless SOBs–I hereby pardon myself of this bogus offense you have concocted. Don’t like it? Then you can impeach me, losers. Good luck with that.”

    Oh, and gotta love how Debbie the D****it is dragging the DNC down into this mess when prominent liberals are running away from it as if it were radioactive and on fire.

    M. Scott Eiland (8d3966)

  92. Donna Brazile says that this is not a partisan action… “Just Texas politics”… is she as clueless as her boy Al Gore?!?! #WakeUpSmellCatFood

    Colonel Haiku (f8c86d)

  93. That was a rhetorical question…

    Colonel Haiku (f8c86d)

  94. #68 above, I would suggest moving the state capital to Waco. Former Gov. Ann Richards -D, would approve.

    #73, 74, 77… I would think more to denigrate Texas republicans as the Clintonista’s begin to cozy up to former San Antonio mayor Julian Castro, soon to be Sec. HUD.

    LiberTexian (03766d)

  95. Additionally, was Perry trying to influence the prosecutor in the exercise of her “official “duties? Do Texas statutes expressly create a duty of a prosecutor to resign under certain circumstances? Do they expressly create a duty not to resign but to continue to serve under circumstances? If not, how were Perry’s actions attempts to influence the prosecutor in the course of her official duties pursuant to the language in the Texas statute cited in this article?

    Additionally, the statute in question includes language about “specific” duties or exercise thereof. Even if there Is an “official” duty of a prosecutor to either resign or continue to serve under Texas law, would that also be the type of “specific” duty referenced in the statute? Rather, wouldn’t it be a general duty?

    Bryan Evenson (a8141d)

  96. 94. …Oh, and gotta love how Debbie the D****it is dragging the DNC down into this mess when prominent liberals are running away from it as if it were radioactive and on fire.

    M. Scott Eiland (8d3966) — 8/17/2014 @ 9:57 am

    DWS is smarter than you think, because she knows she’ll suffer no consequences. It reminds me of the time when she told CNN that they didn’t see what they just saw at the Democrats national convention. The conventioneers were booing and jeering when when Villaraigosa announced a motion had passed when it clearly hadn’t. A CNN reporter asked DWS about what had taken place, and DWS denied it had taken place. They had no idea what to do. Anderson Cooper said she was living in an alternate universe. Once. His guest panel laughed it off. Cooper brought it up once again (as far as I know; I don’t usually watch CNN unless I’m waiting to catch a plane) but eventually he seemed to drop it and he still deals with DWS as if she can be believed. It was just all water under the bridge.

    So if you’re DWS and you know you’re going to catch these kinds of breaks, what is the downside?

    Steve57 (5f6c2a)

  97. Would someone with a good grasp of both Texas law and Texas politics do a brief primer on the technicalities of how this all came to pass. …. but going back to even calling the grand jury in the first place. Does the drunk have authority to name a special prosecutor for any reason any time she wants–not to mention a specific special prosecutor in McCrumm, and can she alone sign off on the whole shebang and spend the state’s money without anyone else being consulted and authorizing it?

    Texans For Public Justice filed a complaint with the Travis County DA’s office. Since there was the appearance of a conflict of interest the DA went before a District Judge to have a special prosecutor appointed. This is not uncommon, especially in the smaller jurisdictions where everyone knows everyone else. The DA usually recommends to the judge who should be the special prosecutor. A lot of times this person will be an attorney in private practice. Once he has been appointed by the judge he has all of the immunities and powers of an elected DA. The special prosecutor then conducts an investigation and if warranted will present the evidence to the grand jury or seat a special grand jury. Due to the conflict of interest the elected DA should not have any control or have any input on the special prosecutor’s decisions.

    Robert (12c17e)

  98. I see a Republican attack ad (or several) coming on this, and Debbie the D****t’s endorsement of the indictment gives them a legitimate reason for tying the national party to it that even the liberal-slanted “fact checker” sites are going to find impossible to dismiss (they’ll hem and haw and mention all the liberals running away from the indictments, but “cheered on by the head of the DNC” is absolutely “TRUE”).

    M. Scott Eiland (8d3966)

  99. I assume that before a grand jury the case is pretty one sided, that the prosecutor gets to pick and chose the evidence and how to instruct the jurors,
    so if the jurors were not particularly educated on how government works in the first place he could have gotten them to indict a legislator for “trying to change the law” by proposing a piece of legislation.

    And yet it took Earles three tries before he could get a grand jury to indict Tom DeLay on that ridiculous charge.

    Milhouse (9d71c3)

  100. Never mind on the pardon power thing–Texas has a board for that:

    http://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html

    If the board is friendly to Perry, the following ruling should be within their powers and forthcoming:

    “We issue a pardon to Governor Perry on the above described indictment on grounds of innocence, because you corrupt morons haven’t described a crime for him to be guilty of. Go away, idiots.”

    M. Scott Eiland (8d3966)

  101. Interesting legal analysis, but the personal attacks against the prosecutor Michael McCrum were unnecessary and unwarranted. Don’t hate the player, hate the game.

    Johnny Law (161b20)

  102. 101. I see a Republican attack ad (or several) coming on this, and Debbie the D****t’s endorsement of the indictment gives them a legitimate reason for tying the national party to it that even the liberal-slanted “fact checker” sites are going to find impossible to dismiss (they’ll hem and haw and mention all the liberals running away from the indictments, but “cheered on by the head of the DNC” is absolutely “TRUE”).

    M. Scott Eiland (8d3966) — 8/17/2014 @ 10:22 am

    Is it really fair to call it an attack ad? Nobody outside of the Texas Democratic Party apparatus has been able to discern a crime. Is it an attack to point that out?

    I don’t see this as a a partisan issue. Client no. 9 shouldn’t be locking up johns. I don’t care if he’s a D or an R.

    Steve57 (5f6c2a)

  103. Because when the nice Texas Democrats find out about her views on abortion, i.e. it should be legal right up to the moment a woman is about to deliver, they’re turned off.

    “Up to”? Is she on record as supporting a ban on unnecessary abortion once labor has begun?

    Milhouse (9d71c3)

  104. Stupid question here–has anyone taken a look at Texas pardon law? If it is constructed conveniently, Perry could basically say: “F*** you lawless SOBs–I hereby pardon myself of this bogus offense you have concocted. Don’t like it? Then you can impeach me, losers. Good luck with that.”

    In Texas the governor has no power to pardon anyone. There’s an independent pardons commission that has this power. All the governor can do is delay a sentence for 30 days to give the pardons commission time to decide what to do.

    Milhouse (9d71c3)

  105. Interesting legal analysis, but the personal attacks against the prosecutor Michael McCrum were unnecessary and unwarranted.

    How so?

    Don’t hate the player, hate the game.

    Why? There’s nothing wrong with the law.

    Milhouse (9d71c3)

  106. I see a Republican attack ad (or several) coming on this

    Is it really fair to call it an attack ad? Nobody outside of the Texas Democratic Party apparatus has been able to discern a crime. Is it an attack to point that out?

    Yes, of course it is. That’s what attacks are. Some attacks are unfair, of course, while this one would be very fair, but it’s still an attack.

    Milhouse (9d71c3)

  107. Caught that in #103, Milhouse–revised suggestion there. Though it does help explain as to why the LBJ wannabes felt they could get away with this in Texas–a governor with the pardon power probably *would* give them the back of his hand with a pardon and dare the corrupt scum to impeach him.

    M. Scott Eiland (8d3966)

  108. There’s no guarantee the pardons commission would do as you suggest. They are independent.

    Milhouse (9d71c3)

  109. Milhouse, I didn’t keep track of everything she said during her stupid filibuster. Nor do I hold her accountable for everything her “hail Satan” proponents said. But she most definitely on record for supporting unnecessary abortions.

    By that I mean killing the kid after 20 weeks gestation. The kid has a shot at survival, if you want to terminate the pregnancy. What woman’s “health issue” demands that you know an otherwise viable child is deader than dead?

    But if you’ve been following the Wendy Davis campaign, you’ll know not even she knows what she’s going to say from one minute to the next. So excuse me for not being clear on her positions. Which she can’t articulate.

    What I do know is this; if people find out about what it was she was filibustering, they don’t like it. And by people, I mean nice Democrats. Republicans already despise her.

    http://washingtonexaminer.com/wendy-davis-filibuster-against-late-term-abortion-ban-repels-texas-hispanics/article/2545357

    I’m amazed at the difference between how the national parties reacted to Wendy Davis’ stated position on abortion as opposed to Todd Akin’s position on rape. The Republicans were disgusted, even though he didn’t say anything worse than Whoopi Goldberg excusing Roman Polanski because he was a good director.

    The Democrats on the other hand said, “We like the cut of her infanticidal jib, let’s do our best to bury her comments.”

    Steve57 (5f6c2a)

  110. I’m amazed at the difference between how the national parties reacted to Wendy Davis’ stated position on abortion as opposed to Todd Akin’s position on rape. The Republicans were disgusted, even though he didn’t say anything worse than Whoopi Goldberg excusing Roman Polanski because he was a good director.

    Were they? Could you please explain why? What did he say that was disgusting, as opposed to merely factually incorrect? He repeated a once-plausible medical theory that once circulated, but has since been discredited. OK, so he was wrong, and he was imprudent in citing it without having someone check that it was valid. But what was disgusting about it? Had his science been correct, what would have been wrong with his statement?

    Milhouse (9d71c3)

  111. I think you’re missing the point, Milhouse. The Democrats knew Wendy Davis’ views were unacceptable to Texas Democrats and tried to hide them from their own voters. I cited to the Barone article to show that when Texas Democrats learn about her views, they reject them. So the last thing the Democrats can let happen is for their voters to learn who their candidate is.

    But the only reason the Democrats bankrolled Wendy Davis is that she held those unacceptable views.

    Steve57 (5f6c2a)

  112. Contrarian… on the march.

    Colonel Haiku (5de7c8)

  113. Yes, but what about what you wrote about Akin?

    Milhouse (9d71c3)

  114. That the Republicans at least had a problem with it.

    Steve57 (5f6c2a)

  115. You wrote that they were disgusted, I wanted to know why. As far as I can see the only thing wrong with what he said was that it was medically incorrect, and he should have checked before saying it.

    Milhouse (9d71c3)

  116. You are really missing the point. The point is that the Democrats have official party positions that, if Democratic voters knew about, they wouldn’t vote Democrat. This is why Wendy Davis is the Democratic nominee for governor in the state of Texas. And the last thing the national Democrats want is for the the nice Texas Dems to find out why.

    Steve57 (5f6c2a)

  117. She used her official power to try to get away with a crime, or to be handled differently from other criminals. I don’t get to call the sherrif or even my best friend on demand when I’m falling down drunk from drinking vodka all night.

    If you ask any jailer or police officer who has arrested a drunk or DWI it is common for them to drop names when they are arrested. It is usually made by the businessman who contributed to the sheriff’s campaign. Those who believe they are the “elite” think they deserve special treatment and try to demand it. THese comments are so common that the jailers would just document it in their paperwork and not even think of adding any charges. The jailers treated the DA like anyone else who was acting the way she did. Actually they were probably nicer to her. They also made sure there was video of everything so that they could protect themselves later on.

    If the DA had acted differently during her arrest and booking (no demands for the Sheriff, etc) I do not think Perry would have called for her resignation. Her actions called into question her fitness to serve as DA. A DA demanding special treatment when they break the law and are arrested calls into question their ethics and fitness to be in charge of the state’s public integrity investigations. I have seen judges and other DA’s who have been charged with DWI who did not act like a fool survive their DWI arrest and were able to maintain their office. Although they made a mistake they kept their personal dignity and the dignity of their office intact.

    Robert (12c17e)

  118. Akin’s views on “legitimate rape” wasn’t part of the secret party platform.

    Steve57 (5f6c2a)

  119. Yes, I get that. What I questioned was not that. Is it somehow illegitimate to question anything if it isn’t the main point of the original comment?

    Milhouse (9d71c3)

  120. Akin’s views on “legitimate rape” wasn’t part of the secret party platform.

    What is with “legitimate rape”? Why are people always quoting those words? Do people deny that there’s a physical difference between legitimate rape and so-called rape? That medical facts (or in this case non-facts) might apply only to actual rape, and not to things that we call rape but aren’t really? Surely the objection to what he said was that the theory he cited isn’t true, even of legitimate rape, not that he limited it to such rapes.

    Milhouse (9d71c3)

  121. 120. …I have seen judges and other DA’s who have been charged with DWI who did not act like a fool survive their DWI arrest and were able to maintain their office. Although they made a mistake they kept their personal dignity and the dignity of their office intact.
    Robert (12c17e) — 8/17/2014 @ 11:36 am

    America is the land of second acts. If you play the “Don’t you know who I am? I know the Sheriff. I’ll have your badge” game you don’t get one. Not in my book.

    On the other hand if you say, “I gave into temptation. It was wrong. I knew it was wrong. And I should pay like anyone else,” then maybe.

    Everybody deserves to be treated as an individual.

    Steve57 (5f6c2a)

  122. Milhouse, why are you beating this dead horse?

    Steve57 (5f6c2a)

  123. #BOOM…

    Bob (f64107)

  124. UPDATE: Thanks to Instapundit, Jonathan Adler at Volokh, Eugene Volokh, Scott Johnson at PowerLine, rd brewer at Ace’s, and many others for the links.

    Volokh’s post dismantling Count One is especially interesting and scholarly, and well worth your time. I think Eugene’s points are similar to those I have made in this post, but he articulates them with considerably more legal analysis and legal specificity.

    Patterico (9c670f)

  125. Coronello @127, it was a nice bit of nostalgia to see Mr. Ed. If you’re familiar with the Oakland A’s, I used to clean out Charlie O’s stall. Which is why I’ve flipped on the whole cow v. horse thing. Maybe you weren’t aware there even is a cow v. horse thing. But then, maybe you also never had a horse try to take your head off with a double back kick. Or bite you. Holy bejeebus, that hurts even if it doesn’t kill you.

    I’ve never had a cow try to do the same things to me.

    Cattle can physically perform that act. Here’s a pic.

    http://mandan-news.com/wp-content/gallery/mandan-news/s-rodeo-cody-bullriding.jpg

    But note what’s strapped around his wedding tackle, the rope around the hindquarters. That would irk me too, like nobody’s business. I’ve never had a bad experience, though, with cattle as long as I wasn’t trying to enlist them in a bondage and discipline video.

    Here’s a video of how patient oxen can be, if you don’t abuse them.

    https://www.youtube.com/watch?v=WLITi9sZ0w8

    Riding Chevy and April 22 and Refreshment Training

    They aren’t fast, so if you need to outrace injuns they’re not probably going to be your first choice. And maybe I don’t have enough experience with cattle to prefer them over horses. But so far I find them to be less high strung.

    Steve57 (5f6c2a)

  126. Interesting legal analysis, but the personal attacks against the prosecutor Michael McCrum were unnecessary and unwarranted. Don’t hate the player, hate the game.

    He had the power of discretion, and chose poorly. To suggest he has spit for brains isn’t a personal attack, it’s a clear statement of appearances.

    Kevin M (b357ee)

  127. Patterico kicks A, takes name. Oh,yeah.

    chris muir (378ebc)

  128. Unless I’m missing something, the indictment actually has not been served yet. It is not uncommon for a DA to get an indictment from a grand jury and then leave it sitting in a file while there is some hope of dealing with the defendant as a witness. No court proceeding is triggered until the indictment is served (or service is waived by the defendant). But as best I can tell, all we have at this point is a news release of the indictment, not an actual case.

    JimB82 (8968f9)

  129. Patterico has famous friends! Hello, Mr. Muir!

    Simon Jester (b2ed17)

  130. Milhouse, why are you beating this dead horse?

    I’d just like an answer to my question.

    Milhouse (9d71c3)

  131. علوم . تكنولوجيا . مواقع التواصل الإجتماعي
    . صحة . خدمات . متفرقات من
    العالم . خذ معلومة.

    http://www.almotaharynet.com

    علوم . تكنولوجيا . مواقع التواصل الإجتماعي . صحة . خدمات . متفرقات من العالم . خذ معلومة. (899520)

  132. That exception so vindicates Perry it demands asking whether the Prosecutor ever shared the exception with the Grand Jury for them to consider in deciding whether to indict and, if not, whether his failing to do so is prosecutorial misconduct of Nifong magnitude.

    Henry (3c9c07)

  133. JimB82 (8968f9) — 8/17/2014 @ 7:48 pm

    If you are correct, it’s sort of a criminal law equivalent of a SLAPP suit in my mind,
    the indictment is there and everyone can refer to Perry as “indicted” (sort of), but if it has not been served I’m guessing that no action will be taken on it, and so in one way Perry cannot be cleared if it doesn’t go forward.

    A clever bit of lawfare (legal warfare) there, it would seem to this novice observer.

    Maybe the House could vote to impeach President Obama but not send it to the Senate,
    but I guess it really takes a conspiracy of the MSM to work, because the MSM could call the Dems on their behavior against Perry, but they won’t, and they would push the racist fanatical r-wing repubs in the House meme.

    MD in Philly (f9371b)

  134. “To describe the indictment as “frivolous” gives it far more credence than it deserves. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.”

    It seems to me that the office of the governor of Texas is not a person but a “thing,” an asset to the State of Texas, presumably. Why not execute an asset forfeiture procedure and throw the “ham sandwich” into the gallows and force the Texas Atty. General to go to court to release the asset before it gets sold and the proceeds go to the Office of Public Integrity?

    JaimeInTexas (d39fde)

  135. ……Frankly, a judge trying to interfere with a D.A.’s decisionmaking process by threatening to cut the D.A.’s salary strikes me as a bit troubling.
    You may be misunderstanding the structure of Texas County Government. The County Judge referenced is not a trial judge, it is the title given to the chief executive of the county. Most people holding the office are not even lawyers. Their job is to preside over the county commission, consisting of 1 representative of each precinct of the county.

    Robert (d30dd8)

  136. 67 County Judge (76f185) — 8/16/2014 @ 8:45 pm:

    In Texas, the County Judge is the chief administrator of the county, like a very weak governor. He or she presides over the County Commissioner’s Court, but has just one of five votes on this :court.” The County Commissioner’s Court governs the county, primarily through the power of the setting a budget. It has four other members. In some small counties, the County Judge does actually serve as a judge on a limited-basis. County Judges and County Commissioners often are not lawyers.

    Historical note: non-lawyer Harry Truman was Chief Judge of Jackson County, Missouri before his election to the U.S. Senate. As in Texas, an executive position, not judicial.

    Rich Rostrom (63a77b)

  137. @139 The governor, then, can veto funding without fear, as long as he keeps quiet?

    I can see the Public Integrity Unit being legislated out of the Austin’s DA office. A good thing. Lehmberg needs to go. Lehmberg is compromised in dealing with other drunk driving public officials.

    JaimeInTexas (d39fde)

  138. I’m a Dem, a strong liberal, and I hate Perry … but this law, and this prosecution under that law, are a joke. Amazing to me that anyone with a brain could write such a pretzel of a law, and even more amazing that this guy is trying to prosecute it in this matter. Free Perry. Stop the madness.

    Ty Emzone (883d6a)

  139. It amounts to Don’t Ask Don’t Tell for executives who want to use their veto power. Who could invent such a grotesque idea? Oh wait … it’s Texas. Never mind.

    Ty Emzone (883d6a)

  140. Who could invent such a grotesque idea, you ask? Your drunk Travis County Dems.

    JD (285732)

  141. I don’t own any dems, in Texas or anywhere else, you idiot.

    Ty Emzone (883d6a)

  142. Drive-bye’s are special.

    JD (285732)

  143. Update to #182 — the indictment is not going to be served. Gov. Perry has received a summons to appear, which apparently will be done sometime this week. Conflicting reports as to whether this will involve fingerprinting and mug shot, or just an arraignment.

    JimB82 (8968f9)

  144. I meant #132.

    JimB82 (8968f9)

  145. I wonder what effect this will have on McCrum’s career in public service going forward. There seems to be agreement across the political spectrum that this prosecution violates the U.S. Constitution, the Texas Constitution, Texas statute, and Texas judicial decisions. It also casts the power-abusing drunken DA as the victim. What was McCrum thinking?

    gts109 (a0b1a5)

  146. Governor Perry has had a lifetime appointment to the governorship sustained mostly through Texas-sized, legalized electoral fraud by comming up with new identification and redistricting laws before each of his “elections”, and massive petroleum interests. A blatant display of pirmitive Civic Public Administration from an equally primitive state, i.e. human rights police abuses and rank corruption. If he gets any more power, may the almighty creator help us, we’ll all be in the hole for another 100 years, and the world will catch hell again. Get your popcorn ready, here we go again, the petroleum cartel is on the way again ready to be the true highjackers of the once beautiful US of A. Perry has acted like a god destroying lives and not granting clemency, he made this bed, now he needs to sleep in it and enjoy it.

    Joe Wison (79c0d8)

  147. It is remarkable that you managed to type that without bleating KOCH BROTHERS and RAAAAACIST

    JD (d7747e)

  148. Jo Wison does sound a little overwrought, JD.

    elissa (360489)

  149. http://www.chicagotribune.com/news/nationworld/chi-rick-perry-indictment-turns-self-in-20140819-story.html

    Hey, nice mugshot for Rick Perry. He looks like a movie star.

    elissa (360489)

  150. Essentially, according to Perry, he was attempting to coerce the DA to resign because she is unfit to lead.

    So now what is he being charged with? . . . Coercion of a Public Servant.

    If Perry had been honest to start with and just admitted he was trying to kill the Public Integrity Unit, he NEVER would have been charged with Coercing a Public Servant.

    Dumb dumb dumb dumb

    DUMB

    Gary Ollila (762289)


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