The prosecutors in Austin, Texas thought they had one over on Texas Governor Rick Perry when they convinced a grand jury to issue an indictment accusing Perry of abusing his veto power.  A copy of the indictment is here.

That alleged criminal abuse of power related to Perry’s threat to issue a budget veto regarding a unit of the prosecutor’s office if Travis County District Attorney Rosemary Lehmberg did not resign after a DWI conviction.

Not just any conviction, Lehmberg was videotaped attempting to pull rank over the booking officers by mentioning they needed to make sure the Sheriff was aware of her predicament. It’s not hard to see what she was doing — hoping the Sheriff would intervene on her behalf.

Her field sobriety test is here, and she again kept mentioning her political career.  She was abusive and violent in the police station:

Yet she got away with a mere 45-day sentence, of which she served about half.

For all that, Perry sought to protect the public from this prosecutor by demanding she step down, or risk a veto of part of her budget. Perry followed through on the threat and issued the veto.

Law Professor Jonathan Turley has a legal analysis of the indictment. Short version, it’s hard to understand how there is a crime here, unless one considers the “threat” of a veto to be the crime, since exercising the veto clearly was lawful. Turley writes:

From what I can see, these provisions are rarely used and prosecutors have waited for the strongest possible grounds for such charges. Indeed, such laws are written broadly in reliance on prosecutorial discretion. In this case, the special prosecutor seemed to pound hard to get these square facts into these round holes. A bit too hard for such a case.

Indeed, Governors in Texas have a long history of issuing vetoes, so it’s hard to see how telling people in advance you will issue the veto is a crime.

The concept that threatening a veto is a crime is novel.  The law is vague on the issue, perhaps because no one ever thought that threatening to do something you lawfully could do would be a crime.

It’s also important that the criminal inquiry was initiated following a complaint from a liberal group, Texans for Public Justice, in what clearly was a political move.

The prosecutors, having the Grand Jury all to themselves without the benefit of a counterveiling argument, secured the indictment.

As Professor Glenn Reynolds has pointed out, the ease with which prosecutors can obtain indictments of just about anyone on just about anything, requires the cautious exercise of prosecutorial discretion.

In a politicized case involving a political battle, that discretion must be exercised even more cautiously.

Yet the interview given by the special prosecutor demonstrated that this was a reach, and how the indictment merely means there was “probable cause to believe [Perry] committed two felony crimes.” Very low bar. The prosecutor acts as if he’s a mere bystander to the indictment, insisting that since “the Grand Jury has spoken” he will follow up. But the only reason the “Grand Jury has spoken” is that the prosecutor, in complete control of the process, convinced the Grand Jury to so speak.

Texas Democrats immediately started fundraising off the indictment, as Amy pointed out in Rick Perry indictment looks, walks and quacks like political power play:


In this obvious political drama, some unlikely voices are defending Perry from the get-go.

David Axelrod, close advisor to President Obama and other Democrats, immediately voiced skepticism via this tweet:

There’s good reason for Axelrod not wanting the threat of a veto to be a criminal offense, considering how often Obama issues such threats to coerce Congress to act one way or another:

Obama Threatens Veto Video Search Result

Liberal law professor Alan Dershowitz also spoke out:

Harvard Law Professor Alan Dershowitz calls himself a “liberal Democrat who would never vote for Rick Perry,” but he’s still “outraged” over the Texas governor’s indictment Friday on charges of abuse of power and coercion.

The charges are politically motivated and an example of a “dangerous” trend of courts being used to affect the ballot box and politics, he told Newsmax on Saturday. 

“Everybody, liberal or conservative, should stand against this indictment,” Dershowitz said. “If you don’t like how Rick Perry uses his office, don’t vote for him.”

Liberal writer Jonathan Chait of New York Magazine proclaimed the indictment to be “unbelievably ridiculous“:

Rick Perry Indictment Unbelievably Ridiculous New York Mag Chait

Even Think Progress, that bastion of Republican bashing, is skeptical.

California prosecutor Patrick Frey has more analysis and a round-up of skeptical opinion (h/t Instapundit):

Words truly fail to describe what an outrageous and unsupportable abuse of prosecutorial power this is. The special prosecutor, Michael McCrum, has no business being given prosecutorial authority — and the fact that Obama considered him for a U.S. Attorney position should deeply frighten anyone who cares about the integrity of the criminal justice system.

The indictment clearly was intended and timed to damage Rick Perry’s presidential hopes, and maybe as a back-handed help to Wendy Davis and other Texas Democrats.

But it may backfire, as unlikely allies come together to oppose this abuse of prosecutorial power.

Democrats know full well that what goes around, comes around.

The criminalization of routine politics threatens everyone.

This contrived indictment may be the best political thing that’s ever happened to Rick Perry.


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