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