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:
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.