Rick Perry Arrested for Vetoing Appropriation


Darrell Hougen

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I'm not going to give all the background on this. It is available on the web. But, Eugene Volokh has put forth some interesting arguments in Perry's defense.

1. The veto power is a power of the governor, but it is more than that: It is a check on the power of the legislature. If Texas legislators want to prohibit some conduct, or appropriate money, or levy a tax, or enact any other law, they have to get a majority vote in both housesand the consent of the governor (unless they can get a 2/3 supermajority vote in both houses).

It follows, then, that the legislature generally cannot criminalize gubernatorial vetoes, because any such restraint on the governor’s power would be an increase in the legislature’s own power — an increase imposed by a mere statute that cuts back on the constraints on the legislature imposed by the constitution. To give the most obvious example, say the legislature enacts a law saying, “The Governor may not veto any bill that protects gun rights, and it shall be a felony for him to do so.” That would be an unconstitutional attempt to allow the legislature to enact gun rights laws without fear of gubernatorial veto. Even if such a law can pass at some point, either because the legislature has a 2/3 majority in each house for the law, or because the governor at the time wants to constrain his successors, it would be unconstitutional to enforce such a law against a future governor.

BTW, I'm not a big fan of Perry. I don't think he's very bright (to put it mildly). But, it seems like prosecutors down in Texas take their orders from the DNC, so I hope he beats the rap on this. If he doesn't, I think we've seen the end of constitutional government.

Darrell

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BTW, I'm not a big fan of Perry. I don't think he's very bright (to put it mildly). But, it seems like prosecutors down in Texas take their orders from the DNC, so I hope he beats the rap on this. If he doesn't, I think we've seen the end of constitutional government.

Darrell

Darrell:

As you are probably aware, these are County District Attorneys who are elected by County electorates.

This piece of humanity, the DA of Austin County (?) is overwhelmingly Democratic.

So she is the exception to the rule in Texas.

I believe this is the same county that went after Tom DeLay, destroyed the man financially and his conviction was overturned on appeal.

A...

Darrell

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Also Kay Bailey Hutchinson in 1994. It was a disaster for the prosecution and for Ann Richardson, the governor who was behind it all. The failure of the case against Hutchinson was one of the main reasons Richardson was voted out that year in favor of Bush. If she hadn't been so crooked he might have ended up as nothing more than a guy who once ran for governor and lost.

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Henry Mark Holzer blogs on the subject in detail and advocates that his blog be spread far and wide:

SUNDAY, AUGUST 17, 2014
Ham sandwich time in Texas: The Perry Indictment

It is said that grand juries are so much in thrall to the power of prosecutors, the latter could indict a ham sandwich. Well, on Friday a special prosecutor didn’t indict a ham sandwich but instead charged Texas governor Rick Perry with the commission of two state crimes. However, when all is said and done, when the political vendetta is exposed and over with, the prosecutor will have choked on his sham indictment.

First, a quick lesson in Criminal Law 101’s prosecutorial burdens. The prosecutor must convince [1] a unanimous jury, [2] beyond a reasonable doubt, [3] overcoming the presumption of innocence, [4]with the criminal statutes’ meaning strictly construed against the State,[5] of every essential element of each crime charged.

Please put aside all the premature, and much erroneous, commentary that’s been generated in the last 48 hours, and follow me into the sketchy, bare-bones, superficial, unprovable, less-than-two-page indictment to see what those essential elements are under Texas law.

Count I: Perry “intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property contrary to the oath of office he took as a public servant . . . which were approved and authorized by the Legislature . . . to fund the continued operation of the Public Integrity Unit [of the Travis County District Attorney’s Office]”

Translation: Perry vetoed the appropriation.

Though not cited in the indictment, this sounds like the Texas law entitled “Abuse of Official Capacity.”

V.T.C.A., Penal Code § 39.02
§ 39.02. Abuse of Official Capacity

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:

(2) misuses 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.

Although much of the preliminary commentary about the indictment seems to believe that Count I charges Perry with the threat to veto (surely not a crime, even in Texas), the language quoted above—“dealing with such property”—albeit somewhat opaquely, alleges that he violated Section 39.02 by his actual veto. I’ll get to the threat in Count II.

Proper analysis of the statute begins, and ends, with what it actually says. (Even though it will become clear later in the judicial proceedings that the legislature never intended either section charged in the indictment to apply to a governor’s threat to veto, and then actual veto, that intent is irrelevant. The statute says what it says, and there is no need to go beyond it.)

First, the section requires [1] a specific “intent.” Since this is the defendant’s state of mind, almost always it must be proved by circumstantial evidence.

That specific intent must be to “obtain a benefit,” which is not charged, or to [2] “harm another,” which has been charged. Presumably, here the “harm” was Perry’s veto of a legislative appropriation, and the “another” was the Public Integrity Unit (which may or may not be considered “another” under the statute).

That specific intent to harm another must manifest itself in a [3]“misuse,” a standard definition of which is “to use improperly.” In other words, the indictment charges Perry with improperly usingappropriated funds by line-item-vetoing them. A novel kind of “misuse,” to put it mildly.

All three of these essential elements of the Section 39.02 crime the prosecutor must prove.

Count II: Perry “by means of coercion, to-wit: threatening to veto legislation . . . to provide funding for the . . . Public Integrity Unit . . . unless [the] . . . District Attorney . . . resigned . . . “intentionally or knowingly . . . attempted to influence [her] . . . in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities . . . .”

Translation: Perry threatened to use his line-item veto unless the DA resigned. Why did he want her to resign? Because she was a drunken, abusive, irresponsible, literally unethical law enforcement public servant who, in Perry’s sound judgment as Governor of the State of Texas, had necessarily lost his confidence and that of the public, bench, and bar of Travis County, Texas.

Though not cited in the indictment, this sounds like the Texas law entitled “Coercion of Public Servant or Voter.”

V.T.C.A., Penal Code § 36.03
§ 36.03. Coercion of Public Servant or Voter


(a) A person commits an offense if by means of coercion he:


(1) [A]ttempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servantto violate the public servant's known legal duty....

What are the essential elements of this crime?

Per Section 36.03, the prosecution would have to prove that Perry’s threat to veto the funding sought to influence the DA’s [1] specific [2]exercise [3] or performance or [4] violate her known legal duty. Putting aside the policy absurdity of this count because threatening to veto is what mayors, governors, and presidents do every day of the week, and putting aside the unacceptable democratic and separation of powers implications of every county DA in America holding a criminal charge over the heads of elected executives who threaten to, or actually, veto, the fatal problem with Count II is that the prosecutor must prove[1] and either [2], [3] or [4] of these essential elements of the Section 39.02 crime.

But he can’t, unless the jury is as corrupt as he is.

Focusing on the alleged threat, and even accepting for the sake of argument that under Texas law it could be considered coercive, it was not aimed at any of the DA’s specific exercise or performance, or sought to coerce violation of any of her legal duties.


Perry did not want to influence the DA. He wanted her gone. The governor of Texas was commendably trying to coerce the drunken, abusive, irresponsible, literally unethical DA to resign—a far cry from what Section 36.03 expressly makes a crime (and from what the intent of the Texas legislature must have been when it enacted the statute).

The indictment’s express allegations that Perry’s coercion was aimed at a specific aspect of the DA’s exercise or performance, or sought to cause her to violate her legal duty, is as sham as the entire indictment itself.

One last—but crucially important—point. Regarding Count I—Section 39.02, Abuse of Official Capacity—there are a mere 4 reported cases:Goldsberry, Campbell, Megason, and Trevino. Not a single one of them is relevant to the facts of the Perry case. Regarding Count II—Section 36.03, Coercion of Public Servant or Voter— there are only 2 reported cases: Tobias and Philipps. As with Count I, neither one is relevant to the facts of the Perry case. In other words, there is no Texas case-law precedent, none, to support either criminal charge that has been brought against Governor Perry for his threat or his veto.

The indictment—which should be an embarrassment to every fair-minded member of the Texas bench and bar—deserves to be promptly quashed.


Please forward this blog far and wide.

Professor Emeritus
HENRY MARK HOLZER
Brooklyn Law School
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A few days ago, I covered Rosemary Lehmberg here in the thread, "The Face of Naked Evil Power."

She's a real piece of work. That link includes her arrest video and her behavior in jail.

Irrespective of all the legal wrangling, I can't see how this would not influence a jury about the wisdom of Perry wanting her out of office and the impropriety of her remaining. And I think it will be included in the trial.

Michael

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Irrespective of all the legal wrangling, I can't see how this would not influence a jury about the wisdom of Perry wanting her out of office and the impropriety of her remaining. And I think it will be included in the trial.

Michael

Sad part is that it is not about the trial.

This is tactical.

Perry, potentially, can be wrapped up in this trial for three (3) years.

His Presidential campaign is damaged which could be part of the tactic.

I wonder what options his defence team has to accelerate the process?

A...

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Irrespective of all the legal wrangling, I can't see how this would not influence a jury about the wisdom of Perry wanting her out of office and the impropriety of her remaining. And I think it will be included in the trial.

Michael

Sad part is that it is not about the trial.

This is tactical.

Perry, potentially, can be wrapped up in this trial for three (3) years.

His Presidential campaign is damaged which could be part of the tactic.

I wonder what options his defence team has to accelerate the process?

A...

Aint Democracy wonderful????

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  • 3 weeks later...

What can I say? Up here in Canada we have Toronto mayor/crackhead clown ford actually running again!(if the mass in his big fat gut doesn't kill him first.

Rob Ford did not fill out his papers to run for Mayor of Toronto. He has a health issue. His brother Doug is going to run instead, sort of in his place. But Rob Ford will run for that brother Ford's council seat (and another Ford for School Board). Perhaps Rob and Doug will get to keep the keys to the city ...

From Global News (Canada):

The poll from Forum Research Inc. conducted the day Rob Ford dropped out shows Doug Ford at 34 per cent with more than one third support, seven points behind front-runner John Tory who sits in the lead at 41 per cent. Third place contender Olivia Chow has 19 per cent support, the poll says.
Edited by william.scherk
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Perry is being railroaded but the whole thing has backfired making him an even more potent candidate for the Presidency. If you think things are bad with Obama, Perry is going to be a whole another kind of bad. His conduct as governor of Texas is quite horrible, thank you, for which I can adduce some facts if anyone here cares about this.

--Brant

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I'll bite, Brant. How might the criminal charges make Perry a more viable candidate, let alone a potent candidate for the GOP? He consistently polls lowest rung among the possible candidates for 2016. I wonder how you measure a candidate's potency anyway ...

I'd say Perry has zero chances of getting on the next Presidential ballot in the first place.

But all that aside, yes, let's hear some material on Perry's gaffes, blunders, Christ-based legislation, abortion curbs and other acts of a prudent and ethical leader.

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Because those criminal charges are politically motivated out of a quirk in Texas law that enables the prosecutor in one county to bring them. Perry is throwing them back in that guy's face. This prosecution is being condemned even by liberals.

As for the rest, I'll go look 'em up. They're on a paid site so I can't link.

--Brant

edit: Perry tried to ram through The Texas Corridor in spite of abuse of eminent domain. Imposed a renewable energy mandate on Texas driving up electricity costs and destabilizing the electrical grid. Responsible for the Gross Receipts Margin Tax (I need to look more into this for my information). The Cancer Prevention Research Foundation used as a conduit to funnel public money to a major campaign contributor and is now defunct. (I need to look this up.) State power given over to Federal power through advocacy of constitutional amendments to ban abortions and gay marriage traducing the 10th Amendment.

Qua politician he seems to be a big crony capitalist.

(I think I'm on William's shit list)

Edited by Brant Gaede
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(I think I'm on William's shit list)

You are on my Do Not Ignore list, Brant. I am glad you are around and active. I may disagree with your calls to bomb Canada, but that does not dim my respect for you. You as a wise old hand on things Objectivish. You as a sensitive and caring man. You as a nice nagging constant on OL.

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(I think I'm on William's shit list)

You are on my Do Not Ignore list, Brant. I am glad you are around and active. I may disagree with your calls to bomb Canada, but that does not dim my respect for you. You as a wise old hand on things Objectivish. You as a sensitive and caring man. You as a nice nagging constant on OL.

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