[EL] The Charges Against Governor Perry

[David A. Holtzman]

State v. Perry is not an election law case, but I appreciate the chance 
to discuss it here.

To start, it's important to note this: We wouldn't be having this 
conversation if the line-item veto was unconstitutional at the state 
level, as it is at the federal level.
/Since the chief executive at the federal level doesn't have line-item 
veto authority, I'm worried that federal courts might botch this case, 
like they fumbled standing and Proposition 8, showing ignorance of the 
state-level-only initiative power.
/
It's also important to note that the governor's veto is not alleged to 
have been a crime.The crime is his coercive attempt to get an official 
to resign.As coercion, Gov. Perry used a threat to veto her office's 
funding.The eventual veto is irrelevant (and legal).

And please also note that anything you think she may have done to 
*deserve it* is irrelevant too.The alleged crime was an offense against 
the state as much as an offense against her.It is State v. Perry.

The alleged crime is particularly heinous because Gov. Perry allegedly 
demanded that a prosecutor who could investigate him or his friends 
leave her job.It's reminiscent of President Richard M. Nixon's Saturday 
Night Massacre, except Gov. Perry didn't have direct hiring and firing 
authority over the prosecutor's superiors.It sure looks like Perry 
reached outside of his authority and violated a clear, specific law.

Perry used a veto threat as a weapon.A specific Texas law makes it 
illegal for almost anyone to use any of a variety of threats to try to 
influence a public official's exercise of official power or performance 
of legal duty.The exception?Members of "the governing body of a 
government entity" (e.g., state legislators), who may use their official 
actions, including deliberations by the governing body, to influence 
public officials.

The New York Times and others have noted that horse-trading happens as 
governors try to get what they want.But getting legislation to sign, or 
nominees confirmed, is not the same as getting people to quit their 
jobs.I've never heard of a governor demanding that a legislator resign 
to spare his favorite program from a gubernatorial veto!And before last 
week, I'd never heard of a like threat against any other type of elected 
official or civil servant.Texas was right to outlaw such threats.

[The opposite of a threat, *an inducement*, intended to make someone 
take (or not take) official action -- may be illegal too.Anybody?Is that 
bribery?Resign and I'll double the budget for your program?Donate to 
your favorite charity?]


Anyway, here's more analysis:
There are two parts to an illegal coercive threat: (A) the demand, and 
(B) the threatened consequence of failing to meet the demand.'Do (A), or 
I'll do (B)!'

A federal case is at the heart of one of Prof. Volokh's WaPo/Volokh 
Conspiracy posts on Perry 
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/16/is-the-indictment-of-texas-gov-rick-perry-inconsistent-with-a-texas-court-of-appeals-precedent-as-to-the-coercion-count/>.Called 
Wurtz <http://openjurist.org/719/f2d/1438/wurtz-v-risley-t>, it 
concerned a charge of "intimidation" against a man who declared his 
intention or desire to rape a woman.A Ninth Circuit panel noted that the 
charge was unfounded because the man didn't give the woman a demand she 
could fulfill to avoid his threatened behavior.Nevertheless, the Ninth 
Circuit panel decided it would go on to declare the law unconstitutional 
because the law could be read to prohibit threatening civil disobedience 
such as a sit-in.(Yay, Ninth Circuit!)

The Texas decision, Hanson 
<http://scholar.google.com/scholar_case?case=13334114033535556636>, upon 
which Prof. Volokh based his analysis so totally misapplied Wurtz as to 
be laughable.

The Wurtz panel did not examine the part (A) piece in any detail.The 
only two hypothetical (not alleged) part (A)s mentioned in the Wurtz 
opinion were 'reduce parking fees' (do it, city council!) and 
'desegregate your restaurant' (which in 1982 the panel found "not unduly 
hypothetical").Nothing as drastic as 'quit your job!'Or as civically 
repulsive as 'quit your job so you can't investigate or prosecute my 
friends.'

Again, The Wurtz panel was mainly concerned with allowing threats of 
civil disobedience to be part (B).It said the Constitution protects 
making such threats.

Perry's part (A) is about as bad as can be. Could Rick Perry have 
constitutional protection to tell a D.A., 'make all your court 
appearances in this hear tight dress, with one hand tied to your bra 
behind your back, or else I'll veto your office's funding!'?'Spend half 
your time in rehab, or else I'll veto!'? 'Use only LEXIS, not Westlaw, 
or else I'll veto!'?'Hire my relative's friend using your office's 
budget or else I'll veto!'?'Drop your investigation of my friend X, or 
else I'll veto!'?

Really, what Gov. Perry said was '(A) drop *all* your investigations 
(quit your job]) or I'll (B) veto your office's funding, thereby 
blocking your investigations, using your drunk driving/unpopularity as a 
pretext.'[Win-Win!]He may have had every right to do (B), but to attempt 
to coerce (A) by threatening to do (B) is different from simply doing 
(B).The Texas law is clear that no one --- public official or not --- 
may attempt to coerce a public official to [part (A)] abandon or alter 
her performance of her legal duty (here, her job).That's true even if 
the instrument used in the attempt is a political power conferred by the 
people (the veto power conferred via the state constitution).In fact, 
threats to use such powers are explicitly included in the definition of 
coercion, which is not impermissibly vague, despite the Hanson decision.

The court in *Hanson* got a basic thing wrong at least twice:
Hanson Quote ONE: "Threats may portend either lawful or unlawful action. 
First Amendment protection is extended to the former but not the 
latter." Note: what is portended is part (B) of a threat.But with 
blackmail, for example, even if part (B) is lawful, threatening part (B) 
to coerce a part (A) doesn't have First Amendment protection.
Hanson Quote TWO: "Coercion of a lawful act by a threat of lawful action 
is protected free expression. See [Wurtz v. Risley, 719 F.2d 1438, 1441 
(9th Cir.1983)]."*In no way did Wurtz establish that proposition.*That 
would legalize blackmail!And Wurtz examined threats of unlawful (not 
lawful) action.Wurtz found First Amendment protection for some threats 
of unlawful action, which is another reason Hanson Quote ONE, above, is 
wrong.

So, despite Hanson, threats of lawful action are not automatically 
protected.And contrary to Hanson, a statute that does not prohibit only 
threats of "unlawful" action is not necessarily impermissibly vague.

So I think Mr. Perry shouldn't get his conviction, when and if it comes, 
overturned on appeal.

That's my basic analysis.

On 8/20/2014 2:35 PM, Jon Roland wrote:
> There are two offices involved. Travis County DA, an elected position, 
> and head of the Public Integrity Unit, which the statute assigns to 
> the Travis County DA, so there was no way to remove Lehmberg from 
> being head of that agency without also removing her as DA.
>
> One might make a case that threatening to veto funds for an agency is 
> a kind of coercion of a official, but that is not a crime, nor could 
> it be, in a case of this kind. If it were the law would not grant him 
> the discretion to do that. The statute on which the indictment is 
> based is for unlawful  coercion, such as a threat of violence.
>
> The governor does replace DAs that leave office before their term 
> expires, but there is no indication that Perry had a Republican in 
> mind to replace her. If he follows past practice, he would probably 
> pick a Democrat with stature in Travis County, such as Charlie Baird 
> <https://www.facebook.com/events/131597693574078/>, her opponent in 
> the last election. He would want someone who could win the next 
> election, and that would be a Democrat.
>
> Partisan politics is not as polarized in Texas as it is on the 
> national level. It is common for members of each party to support 
> members of the opposite party for appointed positions, as a way to 
> promote collegiality, which is still the tradition here, despite the 
> battles on issues like redistricting.
>
> But what it will come down to is whether people, when they watch the 
> videos 
> <http://www.statesman.com/news/news/crime-law/as-lehmberg-heads-to-jail-new-details-about-bookin/nXRjb/> 
> of Lehmberg's behavior the night she was arrested, think someone who 
> behaves like that should hold any office of public trust. Perry was 
> willing to let her stay on as an ordinary prosecutor. Frankly, I don't 
> think, after watching the videos, she should be trusted with that job 
> either, or even a job in animal control.
>
> By way of disclosure, I am not a Republican or a Democrat. I am a 
> Libertarian, although I supported Lehmberg's opponent in the last 
> election. So did a lot of other people who want good government.
> -- Jon
>
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> Constitution Societyhttp://constitution.org
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> Austin, TX 78750 512/299-5001jon.roland at constitution.org
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> -- 
> David A. Holtzman, M.P.H., J.D.
> david at holtzmanlaw.com
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