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The ‘unbelievably ridiculous,’ ‘sketchy’ and farcical Perry indictment will not stand

Rick Perry at McAllen Homeland Hearing

It is not coercion to threaten to do something you are lawfully permitted to do. I successfully used this legal principle in court early in my legal career. This well-established legal principle is not some obscure legal concept, except perhaps in Travis County, Texas. I am unaware of any other jurisdiction in the United States that might agree with the Travers County Grand Jury and special prosecutor Michael McCrum.

Gov. Perry vetoed funding for the public integrity unit headed by District Attorney Rosemary Lehmberg, who was arrested and pled guilty to charges of driving while intoxicated. Not a good thing for anyone to do, but especially so for the head of the public integrity unit. When Lehmberg did not resign after making a public spectacle of herself, as Perry had demanded, the governor made good on his promise and exercised his constitutional right to veto funding for the unit. That is not coercion.

Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law, relying on the appellate case of State v. Hanson (Tex. Ct. App. 1994), explains that the statute under which Gov. Perry was indicted potentially violates the First Amendment, because it is unconstitutionally vague and overbroad. Volokh concludes, “‘Coercion of a lawful act by a threat of lawful action is protected free expression,’ at least in a context such as Hanson’s — or Perry’s.”

Professor Richard L. Hasen, the Chancellor’s Professor of Law and Political Science at the University of California, Irvine, writes at his excellent Election Law Blog, Perry joins the list of other politicians caught up in the criminalization of politics — prosecuted under controversial or dubious theories, including Tom DeLay, John Edwards, Scott Walker, Don Siegelman, and Ted Stevens. Hasen goes on to make the point that “when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions:

“Better to leave the criminal cases to clear violations of the law, such as Rep. Randy ‘Duke’ Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer.”

That sounds like Perry’s, “We don’t settle political differences with indictments in this country.” Unfortunately, as professor Hasen points out, some misguided prosecutors do and it needs to stop. It is time to rein in prosecutorial immunity.

Just in case there is any doubt that the Perry indictment is anything but political, consider the fundraising email blasted out by Battle Ground Texas just after the indictment was handed down.

Professors Volokh, Hasen and I are not the only ones doubting the success of the Perry-haters farcical indictment. Former Obama campaign adviser and Senior Adviser to President Obama, David Axelrod, called the Democrats’ political indictment of Gov. Perry “pretty sketchy”:

Jonathan Chait, a self-described Liberal hawk, writes in the New York Magazine that the indictment of Gov. Perry is “unbelievably ridiculous“:

They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry.

[. . .]

I do not have a fancy law degree from Harvard or Yale or, for that matter, anywhere. I am but a humble country blogger. And yet, having read the indictment, legal training of any kind seems unnecessary to grasp its flimsiness.

[. . .]

The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves.

In the Houston Chronicle, Mike Ward cites several legal experts and writes that prosecutors may have a tough time making Perry indictment stick:

  • Jonathan Turley, a constitutional law scholar at The George Washington University says, “One of the laws being used is hopelessly vague, the other really doesn’t appear to fit. [. . .] That’s going to be problematic, and there is a real danger when you allow such an ambiguous standard to be used,” said Turley, who said the Perry case also raises serious separation-of-power issues. “If this case succeeds, it would be chilling for future Texas governors. … It’s clear to me that neither of these provisions fit.”
  • Jennifer Laurin, a University of Texas law professor, questioned whether the manner in which Perry vetoed the funding constituted an abuse of office and whether prosecutors can prove that Perry intended to harm Lehmberg and knowingly violated state law in doing so.
  • Ed Mallett, a highly-regarded Houston attorney who has served as president of both state and national criminal-defense lawyers associations, also questioned how the governor could be held liable for exercising his clear veto authority authorized in the Texas Constitution.

Is what Gov. Perry did as bad as what Democrat Gov. Richards did when she said she wanted the Texas insurance commissioners to resign and told them if they didn’t she would to put the commission into receivership? I think not. Was she indicted?

Is what Gov. Perry did as bad as what New York’s Democrat Gov. Andrew Cuomo is being investigated for concerning the scandal surrounding his administration’s alleged interference with an ethics commission, which a U.S. Attorney is now investigating? I think not.

The sooner Perry’s attorney, David Botsford of Austin, files a motion to dismiss the indictments the better. Lets end the criminalization of politics now.

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