Three reasons why the Rick Perry indictment must be dismissed

posted at 5:21 pm on November 11, 2014 by Jazz Shaw

A lot of us among the uneducated hoi polloi found the original indictment of Rick Perry over the use of his veto powers to be silly and unlikely to do well in the courts. But at least in my case, I couldn’t quantify exactly why. It didn’t sound right, but I’m not a lawyer and the courts often get up to all manner of monkey business which makes no sense to me. But this week, constitutional scholar Eugene Volokh has done the hard work for the rest of us and identified three entirely separate reasons why this indictment isn’t worth the paper it’s printed on. Let’s take a quick look at each.

It Violates the Constitutional Doctrine of Separation of Powers

The Texas Constitution vests in the Governor the absolute authority to veto appropriations bills. See Tex. Const. art. IV, § 14. The Governor is entitled to decide which laws he “approv[es]” and which he disapproves — without any constraint from the Legislature, or from special prosecutors. Id.

The Texas Constitution also includes an explicit separation of powers provision that sets forth the structure of Texas government

Cannot Be Prosecuted for His Veto, Because He Is Entitled to Absolute Legislative Immunity for Any Exercise of His Veto Power

Legislative immunity is a common law doctrine that flows from the Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (citing U.S. Const. art. I, § 6; Tex. Const. art. III, § 21). It declares that “individuals acting in a legislative capacity are immune from liability for those actions.” Id.

The reason for this legislative immunity is simple, as the U.S. Supreme Court has explained, and the Texas Supreme Court has endorsed

Criminalizes Speech Protected by the First Amendment of the U.S. Constitution

Count II of the indictment alleges that Governor Perry violated the law by “threatening” to use his veto powers if a government official did not resign her post. But he has every right to do just that. Criminalizing Governor Perry’s threat to veto legislation violates his right to freedom of speech under the Texas and U.S. Constitutions. This Count must also be dismissed.

A political official has the right to threaten to engage in an official act in order to persuade another government official to engage in some other official act. That is not a crime — it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (“What is a threat must be distinguished from what is constitutionally protected speech.”).

For those of you with the skill to navigate the terminology I’ve included links to each of the three articles. In each you will find links to the pdf files of the full briefs which Volokh has filed in the case.

I’m still not up to the task of translating all of this, but from the brief summaries he provides, one thing seems apparent. The unwashed masses may have had this one right from the very beginning in at least one regard. How can you take the Governor to court for performing a function of the job which is specifically spelled out in his duties? In Volokh’s learned opinion, you still can’t.


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Comments

I’m sure the AG will do the right thing.

acyl72 on November 11, 2014 at 5:25 PM

How can you take the Governor to court for performing a function of the job which is specifically spelled out in his duties? In Volokh’s learned opinion, you still can’t.

You can if you have a smooth talking political lawyer and an even more politicized and legally ignorant grand jury.

See Tom DeLay, or Kay Bailey Hutchison.

cozmo on November 11, 2014 at 5:30 PM

All you need is some emasculated traitorous judge to declare it a tax and — voilà! — the indictment is constitutional.

I believe there’s now a precedent for this …

ShainS on November 11, 2014 at 5:31 PM

If only the GOP had the chutzpa to use these same tactics against Progs.
I can always dream…

Pelosi Schmelosi on November 11, 2014 at 5:31 PM

Has the judge ruled on whether the “special” prosecutor was lawfully sworn in or not?

Dolce Far Niente on November 11, 2014 at 5:31 PM

Pelosi Schmelosi on November 11, 2014 at 5:31 PM

Can’t. There ain’t that many republicans in Travis county.

cozmo on November 11, 2014 at 5:35 PM

It MUST be turned around, and those that are using the legal system to harass someone should be PROSECUTED for OFFICIAL OPPRESSION.

TX-96 on November 11, 2014 at 5:40 PM

We need to focus on other Rick Perry stories, like this one from this morning.

listens2glenn on November 11, 2014 at 5:41 PM

Can’t. There ain’t that many republicans in Travis county.

cozmo on November 11, 2014 at 5:35 PM

always with the excuses.

how about you find one chuck full of republicans and get a judge there.

but i guess for you “romney in a landslide” folks thats one hill too many.

lol

renalin on November 11, 2014 at 5:41 PM

renalin on November 11, 2014 at 5:41 PM

Time for your Ritalin renalin. You are projecting, again.

Travis county is the only county in the state that can prosecute corruption by a state official state wide.

cozmo on November 11, 2014 at 5:46 PM

Pelosi Schmelosi on November 11, 2014 at 5:31 PM

.
Can’t. There ain’t that many republicans in Travis county.

cozmo on November 11, 2014 at 5:35 PM

.
Ohhh . . . . . . . . . you mean this “Travis County.”

listens2glenn on November 11, 2014 at 5:48 PM

The indictment is a disgrace, but it’s always an excuse to share some terrific Lehmberg photos.

forest on November 11, 2014 at 5:48 PM

cozmo on November 11, 2014 at 5:46 PM

you think its a coincidence?. romneyites flip over and show their soft bellies when community organizers walk in the room.

renalin on November 11, 2014 at 5:51 PM

Even as a hard core Texas conservative, I was impressed with the 100% shellacking that Texas Republicans handed to statewide Dem candidates, Battleground Texas and OfA (and Harry Reid’s little minions). Texas Reps did an exceptional job in maintaining discipline and in going after new ground.

This Perry indictment episode had been rolling around for quite sometime and is part of the “indict all potential 2016 POTUS Contenders” in order to make them toxic. Fortunately, it seems Dems overplayed that hand and as every Governor is cleared, they are retaining their popularity and numbers. That requires good public relations and legal discipline.

That being said…. Perry’s legal and PR team has 100% owned this entire episode. Instead of running from it, he’s running into it and forcing the judges and prosecutors to publicly act as the political operatives they are in front of the public. My suspicion is that if the Dems continue their show trial much longer that Perry’s team will publicly humiliate them and destroy many careers as an example of what should happen to people who want to practice political lawfare.

2nd Ammendment Mother on November 11, 2014 at 5:51 PM

wonder if the perpetrators of the grand jury realize they can be held to the same standard.

RonK on November 11, 2014 at 5:54 PM

listens2glenn on November 11, 2014 at 5:48 PM

Yes, this Travis county.

NSFW

renalin on November 11, 2014 at 5:51 PM

I have no idea what you are even trying to spout.

Have you gone completely off the rails?

cozmo on November 11, 2014 at 5:54 PM

I’m sure the AG will do the right thing.

acyl72 on November 11, 2014 at 5:25 PM

I’m not absolutely sure this is the way it works in Texas, but in many states it wouldn’t be up to the state Attorney General. Unlike federal US attorneys who work for the US Attorney General (and therefor are bound by his/her decisions), the local/county prosecutors work for the people of the county or municipality. They are, in many ways, beyond the direction of the state AG when deciding who or who not to prosecute.

Atlantian on November 11, 2014 at 5:57 PM

I would hope Perry’s legal team is framing these charges as frivolous and sanction-worthy. It would be fun to see the principal prosecutors gored by their own ox.

Jazz on November 11, 2014 at 5:58 PM

Atlantian on November 11, 2014 at 5:57 PM

Yep, a judge now controls the case.

I would like to see him do what the judge in the KBH case did.

Forced the DA to take the case before a jury so the judge could slap him publicly.

Jazz on November 11, 2014 at 5:58 PM

That too.

cozmo on November 11, 2014 at 6:08 PM

I’m sure the AG will do the right thing.

acyl72 on November 11, 2014 at 5:25 PM

If you’re talking about the Texas State Attorney General, he was just elected Governor, so that after he takes office, he can always pardon Perry…

That might be politically unwise, since it would bring back memories of Ford pardoning Nixon, and the indictment might be dismissed before Governor-elect Abbott takes office. But this possibility is always there as a last resort.

Steve Z on November 11, 2014 at 6:29 PM

Some part of me thinks that finally Texans are going to have enough of this tripe and flip Travis County, like they had enough of Abortion Barbie and blew away the Democrat choice by 22 points.

I don’t have any doubt that part of Abbott’s numbers were individuals who remembered this Travis County stupidity on election day.

itsspideyman on November 11, 2014 at 6:57 PM

itsspideyman on November 11, 2014 at 6:57 PM

Flip Austin Travis county?

Dude, what have you been smoking?

Got any more?

cozmo on November 11, 2014 at 7:03 PM

cozmo on November 11, 2014 at 5:30 PM

or Ted Stevens

jlw on November 11, 2014 at 7:08 PM

Tell Wendy Davis this is why she lost… the prosecutor will of course be found with a noose dangling from a ceiling… is it murder to tell someone else something that will cause 1 million abortion barbie followers to harrass someone to suicide? If so then I revoke my comment ;)

OregonPolitician on November 11, 2014 at 7:12 PM

jlw on November 11, 2014 at 7:08 PM

Ted Stevens wasn’t prosecuted by the Travis county public integrity unit.

cozmo on November 11, 2014 at 7:20 PM

Bipartisan Group Of Lawyers Calls For Charges Against Rick Perry To Be Dismissed
“To turn political disagreement into criminal prosecution is disturbing.”

A bipartisan group of attorneys is calling for charges against Texas Governor Rick Perry to be dismissed, filing an amicus brief Monday.

The outgoing Texas governor was indicted in August by a grand jury in Harris County, Texas (which includes Houston), for threatening to veto $7.5 million in funds for a statewide public integrity unit after the local district attorney, Rosemary Lehmberg, refused to resign for driving under the influence of alcohol.

Baylor University President Kenneth Starr, who served as independent counsel during the impeachment of President Clinton, and Paul Coggins, a former U.S. attorney appointed by the 42nd President, write in an amicus brief with a group of several other attorneys on either side of the aisle that the prosecution of Perry is “disturbing,” according to Reuters.

“Reasonable people can disagree on the political tactics employed by both Governor Perry and his opponents. But to turn political disagreement into criminal prosecution is disturbing.”
It continues, “Both counts of the indictment are unconstitutional and must be dismissed.”

Notable signers of the brief include former Solicitor General Ted Olson, Alan Dershowitz, Floyd Abrams, former Texas Supreme Court Justice Raul Gonzalez, and Jeff Blackburn, founder of the Innocence Project of Texas, according to The Texas Tribune….”

Read more at http://www.westernjournalism.com/bipartisan-group-lawyers-call-charges-rick-perry-dismissed/#1T8PefXCyMpUyDEG.99

workingclass artist on November 11, 2014 at 7:31 PM

I’m sure the AG will do the right thing.

acyl72 on November 11, 2014 at 5:25 PM

If you’re talking about the Texas State Attorney General, he was just elected Governor, so that after he takes office, he can always pardon Perry…

That might be politically unwise, since it would bring back memories of Ford pardoning Nixon, and the indictment might be dismissed before Governor-elect Abbott takes office. But this possibility is always there as a last resort.

Steve Z on November 11, 2014 at 6:29 PM

I doubt it’ll come to that…the case will likely be dismissed.

The democrats thought it would impact the election…but democrats are stupid that way.

workingclass artist on November 11, 2014 at 7:35 PM

workingclass artist on November 11, 2014 at 7:31 PM

That article has been out for a while. The lib/progs ain’t likin’ it.

The best comments about the article are over at HuffPo.

cozmo on November 11, 2014 at 7:37 PM

Some part of me thinks that finally Texans are going to have enough of this tripe and flip Travis County, like they had enough of Abortion Barbie and blew away the Democrat choice by 22 points.

That is like saying that San Francisco will happily outlaw sodomy.

Unfortunately, there are way too many communists moving in from the north east who find a home in austin and make it even worse.

I’m watching WilCo slowly transform from solid red to purple as the overflow bleeds into Cedar Park, Leander and Georgetown.

Reuben Hick on November 11, 2014 at 7:38 PM

Every time I hear this argument from a liberal, I ask the exact same question:

So you’re telling me that if Perry had not asked her to step down and save face, but instead merely had her arrested for *her* abuse of power and de-funded her office without warning, as he has the unquestionable legal authority to do, you’d have been good with it?

I have yet to get an answer to that question.

Gee, I wonder why.

GrumpyOldFart on November 11, 2014 at 7:40 PM

I would hope Perry’s legal team is framing these charges as frivolous and sanction-worthy. It would be fun to see the principal prosecutors gored by their own ox.

Jazz on November 11, 2014 at 5:58 PM

“The man behind the indictment of Texas Gov. Rick Perry (R) was accused of witness tampering earlier this year by a Texas District Attorney. Mike McCrum, a special prosecutor in Texas, secured a two-count grand jury indictment of Perry last week alleging the long-time governor had abused his office. But McCrum’s past, which includes extensive work as a defense attorney, cast shadows over his current crusade against alleged abuses of power.

In March of this year, Bexar County District Attorney Susan Reed asked the Texas Court of Criminal Appeals to allow a complaint she filed against McCrum in a lower court in January to move forward. Reed alleges that McCrum tried to suppress evidence damaging to one of his clients by telling a key witness to refuse to show up in court.

McCrum originally asked the witness to appear in the case, but when prosecutors wanted to examine her further about records they obtained, McCrum allegedly told her to “go get lost for a while.” Instead, she appeared in court and related the conversation to prosecutors. They now want to see McCrum held in contempt of court.

McCrum’s client was Taylor Rae Rosenbusch, who pled guilty to killing two men while driving intoxicated.

According to the Texas Court of Criminal Appeals website, documents in the matter have been submitted as late as July 29 and the case appears to be open.

Despite the intense media scrutiny focused on McCrum as a result of the Perry indictment, the allegation that he suppressed a witness in a different case earlier this year has gone mostly unnoticed. The conservative website NewsBusters featured a blog post that mentioned the matter in passing, and a blogger summarizing McCrum’s background also mentioned it on Monday afternoon.

It is also a bit of an irony that McCrum would be the man picked to serve as special prosecutor in a public integrity case. Since leaving his job in a U.S. District Attorney’s office in 2000, he has worked as a defense attorney. Among his clients are numerous government officials accused or found guilty of misconduct in office.

McCrum defended Bexar County Sheriff Ralph Lopez in a 2007 criminal case that alleged he took a free trip out of country paid for by the company that benefited from a new jail contract he rushed into effect. Lopez plead no contest to the criminal charges and left office in disgrace.

In 2002, McCrum defended one of four men – two of whom were San Antonio City Council members – in a bribery case. When news of the case broke, McCrum went to bat for his client declaring, according to The Dallas Morning News, “This whole thing is just out of character for Jack. Jack’s an honest man, an honorable man, and it’s inconceivable that the government would suspect him of bribery, much less accuse him.”

In September of 2004, Jack Pytel, the man whose character McCrum defended, pled guilty to “one count of conspiracy to commit bribery as well as a substantive bribery charge.” He also “admitted to paying Martin $5,000 to vote for the Heard, Linebarger, Goggan, Blair, Pena & Sampson bid and to secure Sanders’ vote for the bid.”

While McCrum has secured a grand jury indictment of Perry, the governor has vowed to defend himself. Perry is not the first Republican governor to face harassment from prosecutors recently. Democratic prosecutors in Wisconsin investigated government employees hired by Gov. Scott Walker in a case Democrats theorized would ultimately lead to the governor’s indictment. It never did….”

http://www.redstate.com/2014/08/19/perry-prosecutor-accused-witness-tampering/

workingclass artist on November 11, 2014 at 7:43 PM

Every time I hear this argument from a liberal, I ask the exact same question:

So you’re telling me that if Perry had not asked her to step down and save face, but instead merely had her arrested for *her* abuse of power and de-funded her office without warning, as he has the unquestionable legal authority to do, you’d have been good with it?

I have yet to get an answer to that question.

Gee, I wonder why.

GrumpyOldFart on November 11, 2014 at 7:40 PM

Initially Gov. Perry offerred to appoint another democrat in her office to replace her if she’d just resign.

workingclass artist on November 11, 2014 at 7:48 PM

workingclass artist on November 11, 2014 at 7:31 PM

That article has been out for a while. The lib/progs ain’t likin’ it.

The best comments about the article are over at HuffPo.

cozmo on November 11, 2014 at 7:37 PM

Gig Em’

workingclass artist on November 11, 2014 at 7:50 PM

“”I want the next governor and the next governor and the next governor to be able to know that they can govern, they can veto any piece of legislation for whatever reason,” Perry said. And that you are not going to have some outside group or some rogue group somewhere basically saying oh you can’t do that.”

Gov. Perry has not said he is running for President, but hasn’t ruled it out either. He’s the first potential candidate to hit the key election states since the midterms….”

– See more at: http://austin.twcnews.com/content/news/306031/gov–perry-visiting-new-hampshire/#sthash.phwpv1YB.dpuf

workingclass artist on November 11, 2014 at 7:54 PM

It MUST be turned around, and those that are using the legal system to harass someone should be PROSECUTED for OFFICIAL OPPRESSION.

TX-96 on November 11, 2014 at 5:40 PM

Are the laws and mechanisms in place to allow this sort of prosecution to happen? Or even a very expensive civil suit?

If not, I think that needs to be remedied. There seem to have been too many of these sorts of abuses lately, and the perpetrators do it because there aren’t any consequences. That could be one thing for the GOP Congress to work on. Since any bill would apply just as equally to Republican prosecutors abusing the process against Democrats, I’d think it would be hard for the Democrats to filibuster this kind of bill, or Obama to veto it, without tacitly admitting that they want this kind of behavior to continue. I’d also want the bill to provide a remedy in case prosecutors abuse their discretion not to prosecute colleagues in their own party, the way DOJ seems to have sat on its hands about prosecuting wrongdoers in the IRS. We’ve reached a point where we can no longer trust that prosecutorial discretion will be exercised wisely, but what’s the solution?

ajb3 on November 11, 2014 at 7:58 PM

“This week alone, Gov. Rick Perry spent two days in New Hampshire, the first presidential primary state, and two days in South Carolina, the second primary state.

And his frequent references to a future presidential campaign means new hints shouldn’t come as a surprise. But he did inch even closer to an announcement on Tuesday.

At a lunch sponsored by the Myrtle Beach Area Chamber of Commerce, he told the crowd on Tuesday that, “I’ve got about 60 more days of being the governor of the state of Texas and then I’m going to do something different.”

He concluded with, “You’ll see me again,” according to the Myrtle Beach Sun News.

Over the past year, Perry has said he’s been getting prepared for his next step, especially after his disasterous first run for the Republican presidential nomination.

Perry has been in frequent discussions with foreign and domestic policy wonks from the George W. Bush administration and from Mitt Romney’s campaign.

He’s talked about America being a country of second chances and he’s visited Iowa, the first caucus state in the nation, more than any other potential contender in the past year.

In January 2012, after finishing fifth in Iowa and New Hampshire, Perry chose to drop out of the race a few days before the South Carolina primary.

He appears ready to erase that memory….”

http://trailblazersblog.dallasnews.com/2014/11/rick-perry-moving-on-to-something-different.html/

workingclass artist on November 11, 2014 at 7:58 PM

workingclass artist on November 11, 2014 at 7:58 PM

Aw dude c’mon.

Leave that kind of fawning to the Perrygirls…and jetboy…and honestlib.

cozmo on November 11, 2014 at 8:06 PM

cozmo on November 11, 2014 at 8:06 PM
‘…Perrygirls…’
You rang?

annoyinglittletwerp on November 11, 2014 at 8:29 PM

You rang?

annoyinglittletwerp on November 11, 2014 at 8:29 PM

Not intentionally.

cozmo on November 11, 2014 at 9:15 PM

workingclass artist on November 11, 2014 at 7:58 PM

Aw dude c’mon.

Leave that kind of fawning to the Perrygirls…and jetboy…and honestlib.

cozmo on November 11, 2014 at 8:06 PM

*snicker*

workingclass artist on November 11, 2014 at 9:22 PM

This is for you Cozmo…

Fighting Texas Aggie Band

https://www.youtube.com/watch?v=NgP0UPvOKXk

God Bless Texas!

workingclass artist on November 11, 2014 at 9:25 PM

My suspicion is that if the Dems continue their show trial much longer that Perry’s team will publicly humiliate them and destroy many careers as an example of what should happen to people who want to practice political lawfare.

2nd Ammendment Mother on November 11, 2014 at 5:51 PM

And that’s good. Failing at hardball politics should be lethal. Those involved should be ruined politically and financially and the blasted earth where they stood salted for generations to come. Those passing by Austin should be astonished when they see the smoking crater.

Immolate on November 12, 2014 at 1:54 PM