Perry files habeas corpus motion to dismiss case

posted at 3:21 pm on August 25, 2014 by Ed Morrissey

Well, what fun is that? Many were hoping to munch popcorn and see Rick Perry’s attorneys spend the next few months ripping Travis County DA Rosemary Lehmberg to shreds over her blatantly political effort to get the Texas governor indicted for cutting off her funding. Accusing Perry of being drunk with power is rather amusing, under the circumstances, but apparently Perry has better things to do with his time:

The writ claims the charges of abuse of power and coercion filed against Perry are unconstitutional and that Perry was simply exercising his constitutional veto powers when he vetoed funding for the Public Integrity Unit last summer.

“By seeking to criminalize not merely the veto itself, but the Governor’s explanation for it as well, this prosecution also violates the Governor’s rights under Free Speech Clauses of the United States and Texas Constitution…” the writ says in part.

The writ also says the indictment violates the constitutional separation of powers and the speech or debate clause in the Texas Constitution.

Note that this is not a motion seeking to quash the indictment, but for the court to rule in essence that there is no there there by dismissing the entire case with prejudice. As the page count indicates — sixty in all — Perry’s attorneys are bringing the kitchen-sink approach to the motion. It specifies in detail all of the ways in which the two counts violate the Texas constitution, the First Amendment, and the separation of powers. The veto acts as a check on legislative power, and nothing in the constitution or case law allows for the judiciary to become an arbiter on the exercise of that power, according to the motion.

The indictment also defies common sense, as the motion argues, because it is based on the novel assumption that Perry misused government property, when Perry never had the funding in his possession in the first place. Budgets do not come into being until the governor signs it into law, and the Texas constitution gives the governor plenary veto power, including on a line-item basis.

The motion also raises a novel defense of its own, too. The Texas constitution, like the US Constitution, protects the legislative branch’s ability to freely debate issues and bars the executive and the judiciary from policing such actions. Noting that the veto is considered by both state and federal courts to be a legislative action (as exercised by the executive under the prerogative of the office), then the “speech or debate” clause applies to the governor when discussing vetoes. A veto threat is almost always part of the political debate between the executive and the legislature to mold bills in particular ways.

That argument has its own charm and may well be supportable, but it would be surprising to find it become the nucleus of a habeas corpus dismissal. Besides, there is a veritable smorgasbord of good arguments why this indictment should be summarily dismissed, let alone why it should never have been brought in the first place. The question shouldn’t be whether the court gives Lehmberg’s political attack the boot, but how many boots should be applied to it.

Read it yourself, courtesy of William Jacobson:

Rick Perry writ of habeas corpus.pdf

Perry traveled to New Hampshire this week, and gave an in-depth interview to WMUR yesterday to discuss the “politically-motived indictment,” calling it “prosecutorial abuse.” Perry spends his time on this topic reminding people that Lehmberg’s behavior made funding her leadership as a watchdog on the use and abuse of authority and power utterly ridiculous. “I’d do it again,” Perry tells WMUR before moving on to the issues of border security and immigration:

Perry also told WMUR that Barack Obama didn’t know that the Border Patrol was stationed miles away from the border when Obama finally came to Texas to deal with the border crisis. He claimed that he had to tell Obama where the Border Patrol was stationed, and urged him to move them right to the border to stop illegal entries rather than trying to round them up later. If that’s the case, it demonstrates yet again how disengaged Obama has become in his job, since the border crisis was a high-profile issue for weeks — and still is.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Well, what fun is that?

Not fun, but the next step.

cozmo on August 25, 2014 at 3:27 PM

In Austin, should have filed Habeas Cannibis…

hillsoftx on August 25, 2014 at 3:30 PM

If that’s the case, it demonstrates yet again how disengaged Obama has become in his job, since the border crisis was a high-profile issue for weeks — and still is.

Tell me again when he was ever actually engaged in the job.

Bitter Clinger on August 25, 2014 at 3:31 PM

Perry also told WMUR that Barack Obama didn’t know that the Border Patrol was stationed miles away from the border when Obama finally came to Texas to deal with the border crisis. He claimed that he had to tell Obama where the Border Patrol was stationed, and urged him to move them right to the border to stop illegal entries rather than trying to round them up later. If that’s the case, it demonstrates yet again how disengaged Obama has become in his job, since the border crisis was a high-profile issue for weeks — and still is.

No shat, Sherlock !!
It sure as H does !!!
*smh*

pambi on August 25, 2014 at 3:32 PM

Good thing there are only two words in habeas corpus or he might have forgotten the last one.

antisense on August 25, 2014 at 3:33 PM

Quote fail, but I don’t know why … LOL

pambi on August 25, 2014 at 3:34 PM

I want the judge to dismiss the whole shebang so I can read from Noah “Make no mistake, this is bad for Perry”.

JK JK

Marcus on August 25, 2014 at 3:35 PM

It’s filed in Travis County? I don’t think he has any chance of winning in loony Travis..

Raquel Pinkbullet on August 25, 2014 at 3:36 PM

I want the judge to dismiss the whole shebang so I can read from Noah “Make no mistake, this is bad for Perry”.

JK JK

Marcus on August 25, 2014 at 3:35 PM

Noah is a leftist tool.

Raquel Pinkbullet on August 25, 2014 at 3:37 PM

Good thing there are only two words in habeas corpus or he might have forgotten the last one.

antisense on August 25, 2014 at 3:33 PM

Teleprompter Obama would have pronounced it..

habeas corpus….

Well…

Even Obama can’t screw that one up…..

Electrongod on August 25, 2014 at 3:37 PM

Raquel Pinkbullet on August 25, 2014 at 3:36 PM

If the case is not dismissed out of hand, a change of venue will be filed next.

cozmo on August 25, 2014 at 3:37 PM

The veto acts as a check on legislative power, and nothing in the constitution or case law allows for the judiciary to become an arbiter on the exercise of that power, according to the motion.

It’s beyond me how they could get an indictment, considering the above. Don’t they have to show that Perry acted beyond his authority, or for some kind of personal or illicit gain?

LashRambo on August 25, 2014 at 3:39 PM

antisense on August 25, 2014 at 3:33 PM

Electrongod on August 25, 2014 at 3:37 PM

If that is what the foolish trolls have been reduced to, enjoy their feeble attempts to try to be relevant.

cozmo on August 25, 2014 at 3:40 PM

If the case is not dismissed out of hand, a change of venue will be filed next.

cozmo on August 25, 2014 at 3:37 PM

You’d think a motion to quash the indictment for lack of merit would follow next. But you know Travis County being the asylum of crazy it is…

Raquel Pinkbullet on August 25, 2014 at 3:41 PM

It’s beyond me how they could get an indictment, considering the above.

LashRambo on August 25, 2014 at 3:39 PM

Ever spent time in Austin?

cozmo on August 25, 2014 at 3:42 PM

I will submit that 95% of the democrat populace in Texas, or anywhere for that matter, have no idea what habeas corpus is, or why it is used, but will glance over this and determine that Perry is hiding something because he wants the case dismissed.

leftamark on August 25, 2014 at 3:46 PM

Ever spent time in Austin?

cozmo on August 25, 2014 at 3:42 PM

For Austin libs this was the ultimate faux pas. Now next time the legislature in session, it’s almost certain their little investigative power will be taken away and given to the State’s AG office.

And Travis County will be irrelevant, as they should be.

Raquel Pinkbullet on August 25, 2014 at 3:50 PM

Good thing there are only two words in habeas corpus or he might have forgotten the last one.
antisense on August 25, 2014 at 3:33 PM
Teleprompter Obama would have pronounced it..
habeas corpus….
Well…
Even Obama can’t screw that one up…..

Yea of little faith. How about “Corpusman”?

Bill-Republic of Texas on August 25, 2014 at 3:52 PM

While things don’t look good for Texas Democrats on this, they’re not giving up on having some narrative to work with — this was the lead story Monday morning across the state on the CBS-owned Texas State News network — a three-day-old story on Perry using the word ‘bribery’ in New Hampshire while discussing the charges against him (link goes to ABC’s Friday version of the story).

There’s really no reason to lead with a nearly 72-hour-old story on something completely immaterial to the case itself, except that with the “Rick Perry Is A Crook” narrative not doing so hot with Rosemary Lehmberg still free to terrorize Travis County liquor store vodka aisles, they’re falling back to the “Rick Perry Iz Dum” narrative from the 2012 campaign. They’re going to get some sort of anti-Republican talking points out of this, even if it’s just a re-hash of the talking points from 2 1/2 years ago.

jon1979 on August 25, 2014 at 3:56 PM

Noah is a leftist tool.

Raquel Pinkbullet on August 25, 2014 at 3:37 PM

But he’s OUR leftist tool. =)

portlandon on August 25, 2014 at 3:59 PM

Noah is a leftist tool.

Raquel Pinkbullet on August 25, 2014 at 3:37 PM

He is not a leftist tool. He is a GOPe tool.

Well, maybe he is a leftist tool.

NOMOBO on August 25, 2014 at 4:00 PM

Teleprompter Obama would have pronounced it..

habeas corpus….

Well…

Even Obama can’t screw that one up…..

Electrongod on August 25, 2014 at 3:37 PM

HayBeyonce Corpus

/URKEL

Key West Reader on August 25, 2014 at 4:01 PM

But he’s OUR leftist tool. =)

portlandon on August 25, 2014 at 3:59 PM

Then you get to clean up after him.

cozmo on August 25, 2014 at 4:01 PM

Good thing there are only two words in habeas corpus or he might have forgotten the last one.

antisense on August 25, 2014 at 3:33 PM

mean but funny.

That three departments faux pas is on video and much stronger ammunition against Perry than this could ever be.

I am cautiously optimistic that the case will be dismissed with prejudice.

talkingpoints on August 25, 2014 at 4:01 PM

Wasn’t Lehmberg guilty of abuse of power when she was threatening the jailers, by saying that they would hurt their careers if they didn’t let her go? She should be charged and indicted, not Perry.

mydh12 on August 25, 2014 at 4:05 PM

Don’t forget the law-breaking grand jury members .. Speaking out, utterly biased, etc.

pambi on August 25, 2014 at 4:13 PM

Oddly enough, I don’t even care what happens to Perry.

“What difference at this point does it make?”

Dr. ZhivBlago on August 25, 2014 at 4:26 PM

Next step prosecuting the prosecutors.

Iblis on August 25, 2014 at 4:31 PM

In Austin, should have filed Habeas Cannibis…

hillsoftx on August 25, 2014 at 3:30 PM

Now, that’s not fair, not all of them are dope smokers.

Some of them drink to excess instead.

Dolce Far Niente on August 25, 2014 at 4:32 PM

I’m still not convinced the local Democrats consider this thing a mistake.

Fenris on August 25, 2014 at 4:32 PM

This is the appropriate motion to file. There is no crime here. Even if Perry STIPULATED to all the allegations in the indictment, it is NOT a crime for a Governor to veto funding REGARDLESS of why he did it.

It is a PLENARY power of the governor. You can’t indict a legislator for voting against a funding bill for the same reason.

ConstantineXI on August 25, 2014 at 4:36 PM

Teleprompter Obama would have pronounced it..

habeas corpus….

Well…

Even Obama can’t screw that one up…..

Electrongod on August 25, 2014 at 3:37 PM

HayBeyonce Corpus

/URKEL

Key West Reader on August 25, 2014 at 4:01 PM

Habeas Corpus Christi

Hey Your Azz is Corpulent

Hobby Azz Corpse Man

Many, many possibilities for Urkel…

Dolce Far Niente on August 25, 2014 at 4:36 PM

Wasn’t Lehmberg guilty of abuse of power when she was threatening the jailers, by saying that they would hurt their careers if they didn’t let her go? She should be charged and indicted, not Perry.

mydh12 on August 25, 2014 at 4:05 PM

Exactly. There is the actual crime.

ConstantineXI on August 25, 2014 at 4:37 PM

Teleprompter Obama would have pronounced it..

habeas corpus….

Well…

Even Obama can’t screw that one up…..

Electrongod on August 25, 2014 at 3:37 PM

Habeus CORPSE-US.

ConstantineXI on August 25, 2014 at 4:38 PM

They need to move the capital of Texas out of Austin AND Travis County. Maybe use a “Roland Freisler” bill to start the proceedings to move. This is Dan Rather country – his daughter probably runs it, and they make Roland Freisler look like Mother Teresa.

Karmi on August 25, 2014 at 4:52 PM

They need to move the capital of Texas out of Austin AND Travis County. Maybe use a “Roland Freisler” bill to start the proceedings to move. This is Dan Rather country – his daughter probably runs it, and they make Roland Freisler look like Mother Teresa.

Karmi on August 25, 2014 at 4:52 PM

I think the US Capitol should not be a permanent location either. It should follow the President to his home state. Lease a convention or meeting center for Congress to meet. Borrow a courtroom for the Supreme Court. If we were actually living under the Constitution there wouldn’t be a massive millions strong bureaucracy.

ConstantineXI on August 25, 2014 at 4:55 PM

It should follow the President to his home state. Lease a convention or meeting center for Congress to meet. Borrow a courtroom for the Supreme Court.

Uh uh, no way.

Many, many states’ facilities would lack attached bowling alleys, free barbering services, the really good hookers and other items necessary to legislatin’ and presidentin’ in the 21st.

Dolce Far Niente on August 25, 2014 at 5:02 PM

Next step prosecuting the prosecutors.

Iblis on August 25, 2014 at 4:31 PM

The Texas Bar Association will undoubtedly be receiving several complaints from several sources. The only question is how many will be required to defend their license to practice law in the state.

Definitely the drunk DA Rosemary Lehmberg will be one who will have to defend her actions at a hearing, and she is the most likely to be disbarred, or at least suspended. Depending on rulings from the bench, the judge in the case, and the one who oversaw the Grand Jury that issued the indictment, may have to answer for their decisions as well.

s1im on August 25, 2014 at 5:17 PM

I think the US Capitol should not be a permanent location either. It should follow the President to his home state. Lease a convention or meeting center for Congress to meet. Borrow a courtroom for the Supreme Court. If we were actually living under the Constitution there wouldn’t be a massive millions strong bureaucracy.

ConstantineXI on August 25, 2014 at 4:55 PM

Interesting idea. Only problem I can see is people voting against a good man/woman just to keep 475 and entourage out of their state.

wifarmboy on August 25, 2014 at 5:17 PM

Uh uh, no way.

Many, many states’ facilities would lack attached bowling alleys, free barbering services, the really good hookers and other items necessary to legislatin’ and presidentin’ in the 21st.

Dolce Far Niente on August 25, 2014 at 5:02 PM

And just think of all the new letterhead and stuff we’d need to buy.

leftamark on August 25, 2014 at 5:21 PM

Wow- this filing is going to have Rosemary buyin’ big at the drive through Vodka store on her way home tonight. She is so screwed!

Look at all those pages she’s supposed to read! She cannot be expected to read sixty pages! That’s just not going to happen.

Maybe she should call Greg for some help…

MTF on August 25, 2014 at 5:56 PM

Hope the judge dismisses this bogus indictment and saves Texans money.

God Bless Texas!

Gig em’

workingclass artist on August 25, 2014 at 6:30 PM

Tell me again when he was ever actually engaged in the job.

Bitter Clinger on August 25, 2014 at 3:31 PM

Only when “job” was followed by “blow” and it involved a certain “body man”.

#BuckFarack

Nutstuyu on August 25, 2014 at 8:35 PM

Noah is a leftist tool.

Raquel Pinkbullet on August 25, 2014 at 3:37 PM

At least he freed the poor rock people so they could fly back into heaven.

#BuckFarack

Nutstuyu on August 25, 2014 at 8:37 PM

Gov. Perry hires Sarah backstabbing Steve Schmidt (my title:-)

Steve Schmidt joins Rick Perry’s legal team
Politico ^ | 08/26/2014 | MAGGIE HABERMAN

http://www.freerepublic.com/focus/f-news/3197191/posts

Just shaking my head here……

bluefox on August 26, 2014 at 12:39 PM