[EL] The Charges Against Governor Perry
David A. Holtzman
David at HoltzmanLaw.com
Thu Aug 21 13:28:54 PDT 2014
Quick responses:
Campaigning is not an official action. Threatening to campaign one way
or another would not violate the Texas coercion law.
If the (part (B), threat) statement is you'll "risk being fired," then
it's nothing new: the employee always risks being fired. If it's "I'll
fire you," then yes it would be a violation. The proper procedure is to
ask for a resignation, then to fire the employee after some time if the
resignation is not tendered. The time in between gives the employee
time to make her case, for interested parties to weigh in, and for the
official in charge (the Governor) to consider all available information
before committing himself to perform the discretionary act of firing.
The Governor can always announce that he asked for the resignation.
When a governor wants to get rid of an employee, he either wants a
resignation or he doesn't. There's no need to threaten to fire the
person if he can do it any time.
When a governor commits to vetoing a bill, he commits to perform a
discretionary official act. A coercive threat to veto makes a similar
commitment; the only difference is that it's conditioned on the failure
to meet a demand (a demand is part (A) of a coercive threat). The
threat cuts off or chills any of the other input a governor should
consider before vetoing a bill. When I wrote bill analyses for a
California state agency, the executive branch position was always of the
form Oppose, Oppose Unless Amended, Neutral, Support With Amendments, or
Support. The position was never officially "Will Veto," and conditions
other than suggested amendments were never included. If a bill passed
and the official public position was "Oppose" we still had the
opportunity (or obligation) to submit an "Enrolled Bill Report" arguing
that the governor "Sign" or "Veto." The public could still weigh in, too.
I'll admit that the hypo about that their [sic] dress is ridiculous, but
my question was about constitutional protection, not voter sentiment.
Take the other "horror hypos" and change the threat, "or else I'll
veto," to an inducement, such as "and I'll triple your office's funding"
or "and I'll sign bill you want signed," and I think you'll see that
they're inappropriate, plausible, and worthy of criminal penalty. - dah
On 8/21/2014 6:01 AM, Samuel Bagenstos wrote:
> 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
> <mailto: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 <tel:614.236.6317>/
>
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>
> [law-election-bounces at department-lists.uci.edu
> <mailto: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 Societyhttp://constitution.org
>> 13359 N Hwy 183 #406-144twitter.com/lex_rex <http://twitter.com/lex_rex>
>> Austin, TX 78750512/299-5001 <tel:512%2F299-5001> jon.roland at constitution.org <mailto:jon.roland at constitution.org>
>> ----------------------------------------------------------
>>
>>
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>> David A. Holtzman, M.P.H., J.D.
>> david at holtzmanlaw.com <mailto:david at holtzmanlaw.com>
>>
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> Samuel Bagenstos
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> david at holtzmanlaw.com
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