[EL] The Charges Against Governor Perry

[David A. Holtzman]

Thanks, Jon.
Quick responses:
1.  There is no need for such evidence.  It's the appearance of a 
potential conflict that matters.
2.  Like you say, there are ways prescribed by law to remove a D.A. from 
office.  Assassination would accomplish the purpose too, but the D.A.'s 
bad behavior wouldn't justify or legalize it.
3.  Irrelevant.
4.  Irrelevant (see 2, above).
   - dah


On 8/21/2014 9:46 AM, Jon Roland wrote:
> Your argument below does not work, for several reasons:
>
> 1. There is no evidence that the demand for Lehmberg to resign was 
> tied to investigation of some favored project or associates of the 
> governor, which investigation could continue no matter who headed the 
> agency. If it had been, there might be some merit to this argument, 
> but it is not even plausible, because any such investigation does not 
> depend on state funding, and the Public Integrity Unit continues to 
> this day with county funding. Nor is it an exclusive prerogative of 
> Travis County. Any DA of any of the 254 Texas counties could conduct 
> such an investigation.
>
> 2. What Lehmberg may have done to deserve removal is highly relevant, 
> because the law provides for removal of officials for bad behavior, 
> and specifically for things like conviction of DWI or abuse of 
> authority. When the corrupt Travis County courts thwarted such 
> removal, that duty fell on the governor or the attorney general. 
> Withholding funding was one way to do it. Arguably a better way would 
> have been to prosecute her for abuse of authority, but it would have 
> to be done outside Travis County.
>
> 3. Others have argued that correction of prosecutorial misconduct has 
> not been a high priority for state or local officials in Texas, but 
> that is changing. Voters, and thus many state elected officials, have 
> become aroused and prosecutions are being subject to more scrutiny 
> than they have been in years past. Texas is no longer safe for abusive 
> prosecutors.
>
> 4. Even the people who voted for Lehmberg are turning against her. She 
> could not be re-elected today.
>
>
> On 08/21/2014 04:02 AM, David A. Holtzman wrote:
>> 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.
>
>
> -- 
>
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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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