Rick Perry, scourge of frivolous litigants, has just become the victim of one of the worst and most insidious variety: the runaway prosecutor. Perry was indicted this afternoon on charges of abuse of power by a grand jury at the behest of special prosecutor Michael McCrum. The basic facts of the case appear not to be in dispute – Travis County DA Rosemary Lehmberg, an influential Democrat, pled guilty to DWI and served 45 days in jail. After serving her jail sentence, Lehmberg returned to her office and refused to step down. Perry announced that he would veto a bill that funded the Public Integrity Unit, a division over which Lehmberg was supervisor, unless she stepped down because he felt that she had lost the public’s trust. Later he followed through and did veto the bill.
The indictment is clear that Perry is not accused of abuse of power for actually vetoing the bill – presumably, everyone accepts both legally and factually that a Governor has the absolute privilege to veto a bill for any reason he wants to or no reason at all – but rather for announcing beforehand his intention to veto the bill.
Announcing plans to veto a bill before doing so is so fundamental to the duties of a governor that ordinary people, including prominent leftists, are incredulous that this prosecution is going forward:
My *very* preliminary reaction to the Rick Perry news: I don’t understand what law he broke. http://t.co/gWE28flLqg
â€” Jonathan Chait (@jonathanchait) August 15, 2014
It is also worth noting that although I am not an expert in this area of the law, it would seem facially obvious that the statement “I plan to veto this bill,” when uttered by a sitting Governor, constitutes core political speech entitled to the highest levels of protection under the First Amendment, quite apart from any issues under Texas law with respect to privileges afforded to the Governor acting in his official capacity. I would not be surprised to find in short order an order from a Federal judge declaring that Perry’s activities as described cannot be a violation of Texas law, and if they are, they are protected by the Constitution in any case.
This entire exercise is so shocking to the sensibilities of ordinary people with respect to what a Governor is and what he does that I would ultimately not be surprised to see it blow up in the face of all concerned who latch on to it. It’s a pity that Rick Perry has to divert his time and attention from his actual duties to confront it, and it sets a worrisome precedent. Will liberals feel comfortable when Republican county DAs indict Democrat governors every time they threaten to veto a bill on these exact same grounds?