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Don’t Get Too Excited by Perry Indictments

The moment I heard about the indictment of Rick Perry for abuse of power and read what the case was, I had doubts about the strength of the case. The legal theory of the case seemed pretty flimsy and liberal columnist Jonathan Chait agrees, calling the charges “unbelievably ridiculous.”

They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. The conventions of reporting — which treat the fact of an indictment as the primary news, and its merit as a secondary analytic question — make it difficult for people reading the news to grasp just how farfetched this indictment is…

Perry stands accused of violating two laws. One is a statute defining as an offense “misus[ing] government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” The veto threat, according to the prosecutor, amounted to a “misuse.” Why? That is hard to say.

The other statute prohibits anybody in government from “influenc[ing] or attempt[ing] to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influenc[ing] or attempt[ing] to influence a public servant to violate the public servant’s known legal duty.”

But that statute also specifically exempts “an official action taken by the member of the governing body.” The prosecutors claim that, while vetoing the bill may be an official action, threatening a veto is not. Of course the threat of the veto is an integral part of its function. The legislature can hardly negotiate with the governor if he won’t tell them in advance what he plans to veto. This is why, when you say the word “veto,” the next word that springs to mind is “threat.” That’s how vetoes work.

Chait is hardly alone. Matthew Yglesias said on Twitter, “Hard for me to imagine these Rick Perry charges sticking” and added, “Does anyone think this Perry indictment makes sense?” Even David Axelrod, President Obama’s campaign manager and adviser, said the indictment “seems pretty sketchy.” Liberal legal scholar Alan Dershowitz says he’s outraged by the indictment and calls it a bluntly political act.

Not only do I doubt they can get a jury to convict Perry on this, I have my doubts it will ever get to trial. Pretrial motions may well be enough to get the charges dismissed.

Comments

  1. Doc Bill says

    Please, people, get clear about the indictment! It’s not that he used the veto to defund the investigative unit, it’s that he tried to coerce an elected official to resign by threatening to defund the unit. Then he followed through on the threat. That’s the abuse of power: coercion.

    Second, Perry offered the DA the promise of a “better job” if she stepped down and to restore funding to the unit. That’s the bribery charge.

    Those little details seem to get lost in all the hoopla.

    However, all this is “business as usual” in Texas. Perry slings around a HUGE AMOUNT of government money and it finds its way into the pockets of his friends and supporters. Yet nobody seems to care about that because, you know, it doesn’t affect the price of diapers in Dallas.

  2. colnago80 says

    Re DocBill @ #2

    DocBill is absolutely correct and accurate. Perry was being investigated for malfeasance by the investigative unit which reported to the DA and Perry was trying to force the DA to resign in order to appoint one of his lackeys to replace her who would undoubtedly deep six the investigation or he would zero out the funding by vetoing the bill which provided said funding. That’s called blackmail where I come from. The crime was not vetoing the bill, the crime was trying to blackmail the DA into resigning under threat of vetoing the bill. Dirtwitz and these other clowns don’t know what the fuck they are talking about.

  3. Kevin Kehres says

    @2…No kidding, I’m about as “not a fan” of Governor Goodhair as anyone … but when I saw the indictments, I thought “bullshit”.

    There’s zero chance of these things sticking. Zero chance of these damaging his political ambitions. Might even improve them.

    Find another reason to despise Perry. These are just political shenanigans.

  4. abb3w says

    @2, Doc Bill:

    Please, people, get clear about the indictment! It’s not that he used the veto to defund the investigative unit, it’s that he tried to coerce an elected official to resign by threatening to defund the unit. Then he followed through on the threat. That’s the abuse of power: coercion.

    Second, Perry offered the DA the promise of a “better job” if she stepped down and to restore funding to the unit. That’s the bribery charge.

    The 36.02 bribery charge might stand — the DA being a public servant, resignation being an exercise of discretion, the job being a consideration of value, and… um, its offer being an offer. However, given that the Texas coercion statute includes 36.03(2)c, “It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body“, I currently see no way that can fly unless someone can argue that a Governor is not a member of the governing body of the state of Texas.

    The nearest direct parallel seems James E. Ferguson’s retaliatory defunding of the University of Texas back in 1916 — but in that case, the governor was impeached.

  5. Doc Bill says

    Even though I wrote “Perry did this” and “Perry did that” he did have an insulating layer. Like me telling my two business associates, Vinnie and Vito, that Ed has real nice windows in his house. Expensive and real elegant. Be a crying shame for anything to happen to those windows, right boys?

    I’ll need to watch the Godfather movies again to see if that sort of plausible deniability actually works. As for Governor Good Hair, he’s been lining his pockets for years and nobody seems to give a rat’s ass. This is the same guy who has zero advocation for a water policy other than praying for rain.

    They say Perry’s not a flight risk but I have a hunch he’s going to be gone by January. Mark my words!

  6. Evan Brehm says

    While I agree that this is largely a political ploy against Perry (the evidence of his wrongdoing is rather flimsy) I have to object to you calling Alan Dershowitz a liberal legal scholar. Dershowitz is a pretty hardcore neocon, a defender and apologist for the Iraq War and Bush/Cheney violations of the Rule of Law, and a columnist for David Horowitz’s HARD-Right FrontPage Magazine.

  7. Doc Bill says

    Four words just brightened my day:

    “Rick Perry’s mug shot”

    No glasses. I figured they wouldn’t let him wear glasses in a mug shot, but I don’t know if that’s a rule or not.

  8. Pierce R. Butler says

    Oops – now I notice that D. C. Sessions provided in # 7 the same link that I did in # 11.

  9. chilidog99 says

    This is all a wedge issue. The real crime is Perry’s use of a nonprofit cancer research agency to funnel money to his supporters.

    More will come out on this.

  10. grendelsfather says

    And not only the cancer fund, but also a couple other funds ostensibly designed to support Texas companies or attract companies to Texas. While these are serious and somewhat viable charges, the real benefit is bring national attention to the sleaziness of whole situation.

  11. Childermass says

    #15: “It discusses the other DAs and a couple of state legislators who have been arrested for drunk driving without causing Perry to get upset.”

    Hypocrisy is not a crime.

    Even Perry-sized Hypocrisy.

    Yeah which crooks in power that he goes after depends on their party and ideological affiliation.

  12. abb3w says

    @7, D. C. Sessions

    A slightly different perspective, with (gasp!) factual details:

    That article gives the bare declaration about the veto that This is abuse of the power of his office, without ever mentioning 36.03(2)c of the Texas code.

  13. mudpuddles says

    @abb3w, #17
    Except in this case, the Special Prosecutor (who has repeatedly said that this is a clear-cut case) is a Republican. He was appointed to this case by a Republican senior judge, who himself was appointed to the case by a Republican senior judge who was appointed by Perry. They so dar all agree that Perry has committed crimes warranting indictment. So, if Perry is being persecuted, it’s by his own party.

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