[EL] The Charges Against Governor Perry
Samuel Bagenstos
sbagen at gmail.com
Thu Aug 21 06:01:09 PDT 2014
As happens maybe once a year, I completely agree with Brad.
On Thu, Aug 21, 2014 at 8:29 AM, Smith, Brad <BSmith at law.capital.edu> wrote:
> So presumably threatening to campaign against her would have been a
> crime, too? Indeed, under David's analysis, it would be illegal for the
> Governor to tell a person whom he has the right to remove from office to
> either resign "to pursue other opportunities" or risk being fired.
>
> To David's par (A) "horror hypos," the easy answer to all of them is
> "yes." My own sense is that if Rick Perry told a prosecutor to "‘make all
> your court appearances in this hear [sic] tight dress, with one hand tied
> to your bra behind your back, or else I’ll veto your office’s funding!’?"
> his political career would be in much greater danger than it is from this
> abusive prosecution.
>
> That's why we have elections.
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> * Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of David A.
> Holtzman [David at HoltzmanLaw.com]
> *Sent:* Thursday, August 21, 2014 5:02 AM
> *To:* [EL]
> *Subject:* Re: [EL] The Charges Against Governor Perry
>
> 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
>
> ----------------------------------------------------------
> Constitution Society http://constitution.org
> 13359 N Hwy 183 #406-144 twitter.com/lex_rex
> Austin, TX 78750 512/299-5001 jon.roland at constitution.org
> ----------------------------------------------------------
>
>
>
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> --
> David A. Holtzman, M.P.H., J.D.
> david at holtzmanlaw.com
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--
Samuel Bagenstos
sbagen at gmail.com
Twitter: @sbagen
My University of Michigan homepage:
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
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