I said this morning that I would try to comment on the judge’s order regarding the Rick Perry indictment. Here you go. I’m going to keep this short, but in order to do so, I am assuming your familiarity with this detailed post of mine from August 2014 in which I pulled apart the indictment piece by piece. (Thanks to DRJ for providing a link to the order, by the way.)
The order is not crazy on its face, though the prosecution is.
The judge first makes the point that settled Texas law holds that “as applied” constitutional challenges cannot be raised before trial. That may be, but I don’t understand the logic, given that specific evidence was presented to the grand jury and the indictments were based on that evidence. Why can’t Perry argue that the statute is unconstitutional as applied to the facts as presented to the grand jury? I don’t understand why he can’t.
Further: as to Count I, the judge is saying that Perry is claiming that you can’t criminalize a veto in this way — but the judge can’t rule on that question now, because the indictment doesn’t specifically say they are bringing the charge based on the veto. They are, of course, as I demonstrated last August — this is beyond rational dispute. But the judge says as a technical matter, if they didn’t allege it, he can’t rule on the question right now. He does suggest that, if that is the prosecution theory, Perry can legally demand that prosecutors specify how he misused property, and make them allege that he did so by way of a veto. Then, maybe, the judge can rule on the question of whether a veto can violate this law. (Which, of course, it can’t!) But he can’t make such a ruling yet — not until the indictment says it is targeting the veto.
(Again, I don’t understand why the judge can’t examine the evidence presented to the grand jury and conclude that their only evidence of action by Perry on the date alleged is a veto. I guess this is some procedural quirk I don’t understand.)
As to Count II, as I explained last August, there is a statutory exception that clearly applies to Perry’s conduct. Perry said the indictment needs to explain how that exception doesn’t apply, and the judge agrees — but he says the remedy for that failure is amendment, not dismissal. I don’t see how they can validly get outside the exception, as I previously explained — so maybe once they amend, this too will be ripe to decide.
There is an interesting footnote that claims that Count II is really a misdemeanor because Perry did not threaten to commit a felony. I suspect McCrum would argue that Perry threatened to commit the felony described in Count I, which (as we know) is the veto. Apparently the judge doesn’t see it that way.
This decision could be read as a road map for Perry’s lawyers to place the case in a procedural posture where it can be dismissed. Once the indictment clearly says Count I is based on a veto, and makes its pathetic attempt to show how Count II survives the statutory exception, the judge may be saying, I can then finally toss this puppy.
But maybe not. As DRJ reminds us, this judge is the same judge who appointed McCrum to begin with — after McCrum gave him a donation (narciso reminds us) — and what’s more, the judge had to get special permission to rule on this motion, because he has been elected to an appellate court. To me, that all sounds wrong, but maybe I don’t understand Texas procedure.
But to me, it sounds like Perry’s lawyers should can the appeal, and get busy writing the new motions the judge has suggested they should write.