In the days since Rick Perry’s indictment on charges of abuse of official capacity and coercion of a public official, many prominent Democrats have condemned the move by a Texas special prosecutor. As Perry’s attorneys announced on Friday, August 22, that he would seek to have the charges dismissed on constitutional grounds according to the El Paso Times, a large number of Democrats around the country agree with Perry that the governor’s actions were not criminal and were protected under the Constitutions of Texas and the United States.
Although Perry’s indictment was initially applauded by many on the left, the flimsy nature of the charges quickly led many liberals and Democrats to condemn what USA Today called a “bid to criminalize politics.” Even the New York Times called the indictment “the product of overzealous prosecution” and opined that “bad political judgment is not necessarily a felony.”
The indictment stems from a dispute between the governor and the Travis County District Attorney. The DA, Rosemary Lehmberg, was arrested for drunk driving in April 2013 with a blood alcohol content almost three times the legal limit. While in custody, Lehmberg had to be restrained. Video of her arrest was posted online by KOKE, an Austin radio station. When Lehmberg was convicted, Perry argued that she had lost public confidence and should resign. When she refused, Perry ultimately vetoed $7.5 million in state funding for Lehmberg’s office in June 2013. Lehmberg is still serving as the Travis County DA, but is not planning to seek reelection in 2016.
The fact that Lehmberg’s office had investigated the Cancer Prevention and Research Institute of Texas, one of Rick Perry’s pet projects, for corruption muddies the waters. The criminal investigation into the cancer institute concluded in December 2013 without targeting Perry or his staff according to the Wall St. Journal. Although cited by Democrats as a motive for Perry’s veto, the indictment does not mention the cancer institute investigation.
First to break ranks was David Axelrod on August 16. In a tweet, Axelrod, a former Clinton advisor, called Perry’s indictment “pretty sketchy.” Three days later, Axelrod defended himself in a series of tweets after receiving “unhappy emails” from anti-Perry Twitter followers,
Lanny Davis, formerly the special counsel to Bill Clinton, joined Axelrod’s dissent a few days later with a column in The Hill. Davis called the indictment “shameful” and wrote that “whether Perry was right or wrong in vetoing that funding… is not relevant. The voters get to decide that issue.” Davis called the indictment “a perversion of the criminal justice system, a classic case of prosecutorial abuse, to indict Perry as a way of deciding the wisdom of his veto.”
Davis goes on to scold Democrats for the presumption of Perry’s guilt. “It is even more outrageous to anyone who cares about due process and civil liberties,” he writes, “to read the comments from local and state Democrats in the state Texas Democratic Party about the Perry indictment.”
“In fact, an indictment is evidence of nothing,” Davis continues. “It is literally just an accusation, not even close to proven facts.”
Self-proclaimed liberal Democrat and Harvard law professor Alan Dershowitz agrees, saying that Perry’s veto threat is “not anything for a criminal indictment” in an interview on NewsMax TV. Dershowitz called the two statutes that Perry was accused of violating “reminiscent of the old Soviet Union” and says this is “what happens in totalitarian societies.”
Mark Halperin, political analyst for Time Magazine and MSNBC and author of “Game Change,” a book about the 2008 election, called the indictment “the stupidest thing I think I’ve seen in my career” on MSNBC’s “Morning Joe.” He continued, “I hope some judge throws it out right away. It’s not just kind of funny and ridiculous; it’s an infringement on individual liberties.” Halperin noted that Perry doesn’t lose his First Amendment rights “just because he’s governor of Texas.”
UCLA law professor Eugene Volokh, author of the Volokh Conspiracy legal blog for the Washington Post points out several legal problems with the indictment for abuse of office. First, the Texas law requires that the public servant must have “custody or possession” of the property that was misused. Perry never had possession of the Public Integrity Unit funds since his veto prevented them from ever being appropriated. Second, Volokh notes that vetoing funds is not a misuse of funds or a violation of Perry’s oath of office. Finally, Volokh notes that vetoes are legal under the Texas Constitution, even to influence other officials, which Volokh calls “behavior that is commonplace in the political process.”
The Volokh Conspiracy also finds fault with the charge of coercion. Volokh cites the 1990 decision by a Texas court in State v. Hanson in which the Court noted that “Coercion of a lawful act by a threat of lawful action is protected free expression.” The decision also pointed out, “Freedom of speech must encompass the liberty of elected officials to discuss matters of public concern without prior restraint or fear of punishment. A vague statute that potentially could punish protected political debate violates due process because of its chilling effect on the exercise of that essential right.”
Perhaps USA Today summarized the problem with the case best: “The case rests on a highly dubious legal argument: Perry can exercise his rights of free speech to seek Lehmberg's resignation, and he can exercise his power of the line-item veto over use of state funds. But, supposedly, he can't do them in tandem.”