RSS
Rick Perry is a terrible governor. But his indictment is a politically motivated farce.
The attempt to criminalize a run-of-the-mill political dispute is part of a disturbing trend
 
Free Rick Perry.
Free Rick Perry. (Bob Daemmrich/Corbis)

Rick Perry, the Republican governor of Texas, is one of the more odious figures in American public life. His record as a governor has been abysmal. The fact that he actively supported the execution of an almost certainly innocent man under his watch says a great deal about him as both a person and a public official, none of it good. His well-funded campaign for the Republican presidential nomination in 2012 also revealed a farcically in-over-his head figure, unable to perform even the simple task of reciting rote talking points.

It is thus very tempting for liberals to react with glee to the news that he has been indicted by a grand jury on charges of abuse of power. But they shouldn't. The basis for the indictment is exceptionally weak, and reflects a disturbing trend towards criminalizing garden-variety political actions.

The controversy is rooted in a partisan dispute over a scandal in Texas' Public Integrity Unit. Rosemary Lehmberg, the Democratic district attorney, was convicted for driving under the influence of alcohol. This wasn't a case of knocking back a few beers, either — her blood alcohol level was roughly three times the legal limit several hours after her arrest. This is a very serious criminal offense, one for which Lehmberg was arguably not punished severely enough.

Having both partisan and principled reasons to do so, Perry repeatedly called for Lehmberg's resignation. Lehmberg, backed by Democrats, has refused, over fears that she will be replaced by a Republican. This conflict culminated in Perry threatening to veto funding for the Public Integrity Unit if Lehmberg refused to resign, and then carrying through on that threat.

Perry's action was probably not the ideal way of resolving the situation. To veto funding for a state agency over the behavior of a single person is a potentially dangerous precedent from a political standpoint. But is it illegal?

Probably not. The prosecution's argument, summarized well by Olivia Nuzzi, is that both Perry's veto and the threat of a veto represented an improper attempt to coerce a public official. The argument that the veto itself is illegal has virtually no chance of success. The relevant precedent suggests that the statute being used by prosecutors did not intend to include a veto.

Even if it did, it would almost certainly be a violation of the separation of powers established by the state constitution. The legislature cannot negate the use of a power explicitly given to the executive.

Finally, the statute contains an explicit exemption for "an official action taken by the member of the governing body." Even if the legislature could constitutionally criminalize the use of the veto to leverage an official to resign, it's plain that in this case it didn't.

The argument that the threat to veto was illegally coercive seems similarly implausible. This argument at least avoids the problem of being explicitly preempted by the text of the statue. But it remains doubtful that the statute was intended to criminalize a veto threat, and the constitutional problems remain. As Jonathan Chait observes, the threat to veto is itself an integral part of the veto power. Barack Obama has vetoed only two laws in nearly six years in office, and his predecessor vetoed only 12 in two full terms.

This doesn't mean that the veto has become irrelevant; rather, the power of the veto is expressed in threats intended to influence the content of legislation. If Congress were every to try to make such a threat illegal, I think it's obvious that this would violate the separation of powers.

The indictment against Perry, in short, is irresponsible and nakedly political. The chances that any conviction of Perry under this theory could survive the appeals process are roughly comparable to the chances that Rick Perry will be the Democratic nominee for president in 2016.

Furthermore, this attempt to criminalize a run-of-the-mill political dispute is part of a disturbing trend. The worst recent case is former Alabama Gov. Don Seigelman (D), who remains in prison based on a theory that would criminalize utterly banal political behavior if applied uniformly. But too many politicians of both parties have been subject to what Rick Hasen accurately describes as "politically motivated charges brought by overzealous prosecutors."

Whatever Perry's demerits as a public official, the remedy for them is at the ballot box, not the prosecutor's office. That is not to say that elected officials are above the law; if Perry took a bribe to veto legislation, he would deserve to be indicted. But he can't be indicted for using the veto power to gain leverage in a political dispute. That's the way the veto works.

 
Scott Lemieux is a professor of political science at the College of Saint Rose in Albany, N.Y., with a focus on the Supreme Court and constitutional law. He is a frequent contributor to the American Prospect and blogs for Lawyers, Guns and Money.

THE WEEK'S AUDIOPHILE PODCASTS: LISTEN SMARTER

Subscribe to the Week