I have some serious objections to the legal reasoning behind Rick Perry’s indictment, which have nothing to do with the Rick Perry (or Rosemary Lehmberg, for that matter). I am concerned because the underlying legal theory seems dangerously open-ended. The proposed remedy seems worse than the disease.
I yield to no one in my contempt for Rick Perry as a politician and as a human being. As I mentioned in this post, my son literally burst into tears when he saw Rick Perry announcing his presidential candidacy. And as I mentioned in this post, I think Rick Perry is a moron. I have no doubt that, among the many terrible things Rick Perry has done, he has committed crimes. My question is whether it’s possible to charge and convict him of this particular crime without doing violence to certain basic constitutional principles.
I’ve been informed, at every possible opportunity, that the special prosecutor is a Republican. This may shock you, but Republican prosecutors are sometimes overzealous and insufficiently sensitive to constitutional rights. The prosecutor’s partisan affiliation might be relevant to someone claiming that the indictment is partisan, but that’s not my claim. I believe that the prosecutor’s legal analysis is (1) nonpartisan and (2) dangerously wrong. It is possible for both of those things to be true.
The crux of this is the fact that Rick Perry may have been seeking to disrupt or delay an investigation into his cronies. I say “disrupt or delay” because any Perry appointee to the DA’s office would have been up for election in 2016 and would likely have been replaced by someone who would pursue the investigation aggressively. But for purposes of this argument, let’s stipulate that the evidence will show that Perry’s veto threat was motivated in whole or in part by a personal desire to kill the ongoing investigation.
I am completely in favor of a criminal statute that prohibits elected officials from intentionally hindering criminal investigations. It would have to be crafted with some care to make sure that constitutionally protected activity was not affected, but I think such a statute would be viable. Texas does not have such a statute. So the question is whether existing laws can be reinterpreted or extended to cover Perry’s conduct here. As venal as Perry’s actions may be, the effort to stretch the existing law to reach them poses some very real threats to principles of due process, free speech and separation of powers.
The essence of due process in a criminal case is that a defendant of ordinary intelligence (omit obvious joke about Perry’s intelligence here) must be able to determine in advance that his conduct is illegal, based solely on the text of the penal statute. When, as here, the actions are all legally authorized (no one disputes that Perry had the constitutional right both to veto the Public Integrity Unit’s funding to threaten such a veto), the statute must give the defendant fair notice of what element makes a particular action criminal. Under Texas law, that means an indictment must not merely repeat the words of the statute, it must explain in clear language why the conduct at issue is criminal.
The first count against Perry is “Abuse of Official Capacity,” which charges that the Governor “misused” the funding for the Public Integrity Unit by vetoing it or threatening to veto it while it was in his “custody or possession.” The statute defines “misuse” as using property in a way “contrary to an agreement under which the public servant holds the property” or “contrary to the oath of office he took as a public servant.” The indictment does not identify any applicable “agreement,” so one must assume that the theory is that the veto violated Perry’s oath of office. Here is his oath of office, in its entirety:
I, Rick Perry, do solemnly swear that I will faithfully execute the duties of the office of Governor of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.
What exactly is the theory here? (Incidentally, we are guessing because the indictment never explains, it just cuts and pastes the text of the statute, which is in itself a potential reason to quash the indictment for lack of fair notice). I suppose you could argue that the terms “faithfully” and “to the best of my ability” is broad enough to cover any sort of improper motive on the part of a public official, but that seems like an impossibly vague and shaky foundation for a criminal prosecution.
Is each prosecutor in Texas just going to have to make his or her own determinations about whether elected officials are living up to their oaths of office? Over the summer the Dallas County judge courageously offered to let refugee children stay in government facilities. A lot of his constituents considered this a failure to execute his duties faithfully, a virtual invitation to people entering the country unlawfully. By what standard do we hold that his conduct was lawful but Rick Perry’s was not? It doesn’t matter to me that in one instance you approve of the conduct and in the other instance you don’t. Criminal law requires a clear, objectively understandable dividing line between what is lawful and what is not.
The second count is “Influencing a Public Official,” which suffers from all the due process problems as the first count, plus a bonus First Amendment problem. Under normal circumstances, “influencing public officials” is not only lawful but constitutionally protected. The right to petition and persuade government officials is the essence of living in a free society. In very narrowly defined circumstances, involving things like bribery or physical threats, we limit the types of “persuasion” citizens can employ. Even in those extreme cases, we take care to exempt legitimate activity, rather than outlawing campaign donations or violent rhetoric across the board.
In the case of elected officials, most of what they do is designed to influence other public officials. Public officials promise or threaten to exercise their authority in the hopes of getting colleagues, opponents, regulatory agencies and other officials to do what they want. Although I know a lot of people find the whole political process distasteful, there’s nothing intrinsically dishonorable about it, and it’s generally the best way to meet the difficult demands of self-government.
The claim in the indictment is that Rick Perry sought to “coerce” the DA into resigning. “Coercion” is defined to include, as well as threats of bodily harm, a threat “to take or withhold action as a public servant,” which is presumably the provision the indictment seeks to apply. The problem, as Eugene Volokh discusses in great depth here, is that most actions by a public official can be characterized as threats to do something or not do something. Many of these threats are directed at other public officials, seeking to entice or pressure them into doing or not doing something. Obviously that’s not all illegal, so what is the distinguishing factor that would put Rick Perry on notice that he was violating the law? No one has a clue.
Perhaps this example will make the absurdity clear: If the special prosecutor went to Rick Perry’s lawyer tomorrow and said “We will reduce the charges to a misdemeanor if Governor Perry resigns” (a fairly common practice in such cases), the special prosecutor would be guilty of a crime under his own theory.
Not only does this create a due process problem based on lack of notice, it creates intolerable uncertainty about virtually any attempt to persuade elected officials. The statute applies not only to direct actions by public servants but to those who may “cause a public servant to take or withhold action,” which would include constituents, advocacy groups or lobbyists who have influence with public officials. Even if no one is ever successfully prosecuted, the threat of legal action (and the need for legal advice) represents a huge threat to freedom of association and freedom of speech.
Does anyone think that Greg Abbott (or his right-wing successors in office) could not wreak havoc on Planned Parenthood or environmental groups or any other ideological opponents if this provision is left open-ended? Once again, it’s not even necessary for the prosecution to succeed. The mere fact of an indictment can dry up fund-raising, frighten off supporters and damage reputations (as Rick Perry’s critics have observed, with varying degrees of unseemly elation, over the last few days).
Finally, both counts of the indictment seem to suffer from a very serious problem rooted in the separation of powers. The veto, along with the pardon power, is one of the key checks and balances available to the executive branch. Everyone would agree that the Legislature could not simply pass a law making it a crime to veto (or threaten to veto) legislation. That would be using a penal statute to nullify a constitutional provision.
It’s not at all clear to me that the Legislature could criminalize a veto under any circumstances, but I’m willing to concede that it’s conceptually possible. But it would require much clearer statutory guidance than the statutes involved here. If the Legislature is authorized to place limits on such a fundamental executive power, it should do so clearly and in a way that acknowledges the separation of powers. The ad hoc invocation of broad statutory provisions is not a good way to go about it.
Lawyers are fond of citing an exchange in Robert Bolt’s play A Man For All Seasons, in which Sir Thomas More scolds his son-in-law for saying that to get the Devil he would “cut down every law in England”:
And when the last law was down, and the Devil turned round on you — where would you hide, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
I give Rick Perry the benefit of law, for my own safety’s sake.