More on the Indictment of Rick Perry

I have looked a bit more deeply into the Governor Rick Perry indictment.  Unfortunately, the new information I have uncovered does not quiet my concerns that the indictment was improper.  Quite the contrary.

The basis of the indictment is that Government Perry threatened to veto an appropriation passed by the Texas legislature for a public corruption unit on the ground that the head of the unit had committed a crime.  Perry wanted the head of the unit to resign before he would approve the appropriation.

There are two counts in the indictment.  The first involves the following statute:

Sec. 39.02.  ABUSE OF OFFICIAL CAPACITY.  (a)  A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:

(1)  violates a law relating to the public servant’s office or employment;  or

(2)  misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.

The indictment alleges that Governor Perry misused government property in the form of “money having a value in excess of $200,000.”  But this seems mistaken.  Perry did not have government property.  He simply had an unenacted bill passed by the legislature.  Moreover, it is by no means clear how a decision to veto a bill based on his view that the unit did not have the public’s confidence would constitute a “misuse” or would “harm another” within the meaning of the statute.

The second count involves a different statute:

Sec. 36.03.  COERCION OF PUBLIC SERVANT OR VOTER.  (a)  A person commits an offense if by means of coercion he:

(1)  influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty;  or

(2)  influences or attempts to influence a voter not to vote or to vote in a particular manner.

(b)  An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.

(c)  It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body.  For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.

While Perry did attempt to influence a public servant – attempting to have the prosecutor resign – he did not attempt to get the servant to violate their known legal duty (or it seems in a specific exercise of his official power or duty).  More importantly, section (c) clearly exempts the governor who “is a member of the governing body of a governmental entity.”

There are other problems here.  First, criminal statutes are supposed to be construed narrowly in favor of the defendant, but they are not being construed that way here.  Second, another canon of interpretation is that statutory provisions should not be construed to raise questions of constitutionality, which these would if interpreted to cover Perry’s conduct.

(I should note that this post is indebted to a number of posts on a list serve of which I am a member.)

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. libertarian jerry says

    It is obvious that the indictment of Republican Gov. Perry is a political move as the indictment is coming from a heavily Democrat district. With that said one of the most abused and corrupt judicial processes in America is the Grand Jury. The Grand Jury,originally,was to act as a bulwark against prosecutorial abuse. It was set up to review the law and its application to specific cases. Nowadays it is nothing but a rubber stamp to indict anyone for any reason. Its the old story that “in today’s world a prosecutor can indict a ham sandwich” if he or she so desires. Or as L.Beria,who was the head of Stalin’s secret police,stated “you find me the man and I’ll find you the law to hang that man.” As long as there is Grand Jury abuse in America the American people can look forward to tyranny if not down right terror.

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