The Indictment of Rick Perry

The indictment of Governor Rick Perry seems, at first glance, to be a political lawsuit without a substantial legal basis.  The lawsuits stems from the Governor’s threatening to veto and then vetoing funds to a public corruption unit based on the head of the unit having committed the crime of driving while intoxicated.

According to news reports and the prosecutor’s statement, there are two charges in the indictment: “Grand jurors in Travis County charged Mr. Perry with abusing his official capacity and coercing a public servant, according to Michael McCrum, the special prosecutor assigned to the case.”  The first claim is that Governor Perry improperly vetoed the funds passed by the Texas legislature.  The idea seems to be that it was improper for the government to veto funds based on the head of a unit having committed a crime.  The second claim is that he attempted to coerce the head of the public corruption unit to step down after her arrest for drunk driving by threatening to veto the funds unless she resigned.

(While The New York Times merely refers to the arrest of Travis County District Attorney Rosemary Lehmberg, she actually was convicted and served time.)

At the federal level, the chief executive’s veto places him in a similar position to a legislator.  Governor Perry asserted that he could not fund public corruption unit because he believed the public had lost faith in the unit since it was headed by an official who had commited a crime.  This would certainly be a legitimate consideration for a member of Congress to consider when deciding what legislation to pass.  A legislator could decide to vote to abolish the office headed by a person who he believed had behaved improperly.  Similarly, a legislator could vote against funding the office for the same reason.  It seems clear that the President could veto a law on the same grounds.

I am not an expert on Texas law, but unless it is very different than federal law, the lawsuit against Rick Perry would appear to be a blatant action of political retaliation – for his veto of the funding of the prosecutorial unit – and an obvious attempt to undermine his possible presidential candidacy.

Update:  Eugene Volokh has more on the indictment and considers the First Amendment issues.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. john trainor says

    This follows in the “great” tradition of Ronnie Earle and Tom Delay. DeLay spent three years in prison, and was exonerated, Earle still walks free, and is admired in certain reptilian circles. There are some interesting photos of Lehmberg online, sleeping it off I think is the phrase.

    • gabe says

      Well, I suppose that since we all work for some sort of corporation, we are all corporate whores – or is it the level of compensation that makes us whores – sort of like being just a wee bit pregnant

    • john trainor says

      garry, if Obama doesn’t have his hand out to the big money boys, and raking it in, we would all be surprised. The same for the corporations, or is it only non-profits your comfortable with?
      Be careful, it is a sign of either a closed or worse, a dim mind that intelligence is the province of centralized power politics and its adherents. A true cop out.

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