The indictment announced Friday of Texas Republican Gov. Rick Perry may sound explosive, but it looks very weak on paper.
There are two felony counts, both stemming from Perry’s public battle to veto funds for a local prosecutor. Yet under the Texas Constitution, the governor has explicit authority for such vetos. And under the U.S. Constitution, politicians have wide authority to talk about their vetoes and votes – it’s a core example of protected political speech.
So before even wading into the details, the indictment already looks fishy. Simply put, it’s hard to imagine sending a governor to jail for talking about why he issued a veto.
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Now under the indictment’s theory, Perry’s words crossed into illegal coercion of a public servant because he “threatened” an explicit trade at the prosecutor – basically resign or lose the funding.
The indictment states that Perry spent about four days last June “threatening to veto” funding for the prosecutor, Rosemary Lehmberg, unless she resigned. That veto threat is the basis for the coercion charge. The actual veto is the basis for the charge of abusing the governor’s office by misusing “government property.”
The coercion charge is the core of the case, and it boils down to motive. The idea is that even though the governor has the power to veto, he cannot wield or threaten that power for illegal ends.
By trying to force an official out of office, and particularly an independent official with responsibilities for investigating the executive branch, the indictment alleges Perry crossed into illegal coercion. So prosecutors can argue that the case turns only on Perry’s intent to undermine the Public Integrity office – not whether he pursued that intent with otherwise lawful means.
Perry’s detractors can emphasize that abuse of office cases usually involve an official’s misuse of otherwise acceptable authority. For example, former Illinois governor Rod Blagojevich certainly had the authority to fill the Senate seat vacated by President-elect Barack Obama in 2008. He was convicted of misusing the authority because he tried to sell the seat.
Even if the logic of that analogy helps prosecutors, however, the facts still help Perry. Imagine a brazen, Blagojevich-style veto threat here – it would be something like demanding an illegal, personal bribe for the veto. That’s miles away from Perry, who was vetoing funds over a staffing dispute.
Then there is the felony charge based on the veto itself. Prosecutors often pile up several charges based on related events and conduct, but the charge for the veto is especially odd and tendentious.
First, it charges that Perry’s June 14 veto amounted to a misuse of government property – of money “approved and authorized by the Legislature” to fund the prosecutors’ office. But that money was not legally available to the office unless the governor approved it. On its face, the indictment suggests that simply disagreeing with the legislature’s funding choice was itself a “misuse” of funds – a crime. That is absurd. The premise also gets Texas law backwards – it’s a line-item veto state – and seems to criminalize policy differences.
More broadly, corruption laws are not typically applied this way. %22The%20grand%20jury%20has%20approved%20serious%20corruption%20charges%20with%20very%20little%20evidence%20of%20corruption.%22′ Bans on misusing government property are usually for combating graft – embezzlement, bribes, secretly misdirecting funds – not for policing routine budgeting. One can imagine hypothetical vetoes that would be prohibited under law, like a governor rejecting funding only for female dorms at a state university because he wanted to discourage women from campus. (Courts could overrule the move as an equal protection violation, though it still wouldn’t involve criminal charges.) Again, Perry was nowhere near that kind of violation. His veto statement from last year was pretty clear: “Despite the otherwise good work the Public Integrity Unit’s employees, I cannot in good conscience support continued State funding for an office … at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence. This unit is in no other way held accountable to state taxpayers, except through the State budgetary process.” Finally, even if you stretch the law to include veto negotiations and find improper motives on Perry’s part, Texas law would require that Perry had legal custody of the funds in order to misuse them. Since he rejected them with the veto, it’s hard to see how prosecutors could prove he ever had them in the first place. (This kind of technical shortcoming draws less attention, but it can reveal whether the prosecutor is especially careful and diligent.) There are many other controversies surrounding this case – the drunk driving prosecution of the local prosecutor, her office’s investigations into Perry’s allies, hardball politics in Texas and Perry’s interest in another presidential run. Very few of those issues should matter in a fair judicial proceeding, because they are unlikely to determine when a veto threat is illegal. Voters may also look at this drama and conclude that some of these activities shouldn’t be allowed – maybe line-item veto authority shouldn’t extend into prosecutors’ offices, maybe Texas needs tougher rules for prosecutors who get in trouble with the law, maybe the governor shouldn’t automatically get to appoint so many officials. As always, a trial could also change everything. New evidence about Perry’s conduct might support the coercion charge more than the two-page indictment. (It’s hard to see the abuse of office charge prevailing at all.) So far, however, the grand jury has approved serious corruption charges with very little evidence of corruption.
Ari Melber
Ari Melber, an Emmy Award-winning journalist, writer and attorney, is the host of “The Beat with Ari Melber” airing nightly at 6 p.m. ET on MSNBC. He also serves as MSNBC’s chief legal correspondent and an NBC News legal analyst. Before joining MSNBC, Melber practiced First Amendment law and served as a legislative aide in the U.S. Senate. He received a J.D. from Cornell Law School and is a member of the New York Bar. Recommended
