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Only one felony charge stands against Rick Perry

Only one felony charge stands against Rick Perry

One down, one to go

Score one for the good guys—an appeals court in Texas has dropped one of two felony charges currently pending against former governor and presidential candidate Rick Perry.

Last August, a grand jury indicted Perry on two separate counts of abuse of power and coercion of a public servant after it was revealed that Perry used his veto power to address corruption in the Travis County District Attorney’s office. Perry’s political opponents cried intimidation, and managed push forward with the case. Earlier this year, Perry’s team suffered a setback when an attempt to get the entire indictment dismissed proved futile; but last week, Perry scored a win on appeal, and overcame count 2—the coercion charge.

The court cited the First Amendment right to free speech in their opinion, saying that “[t]he statute on which the ‘coercion of a public servant’ is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.”

More via Politico:

The lead attorney for Perry’s team, Tony Buzbee, said in a statement that Friday’s decision “is a clear step towards victory for the rule of law.”

“The only remaining count we believe to be a misdemeanor, and the only issue is whether the governor’s veto — or any veto in the absence of bribery — can ever be illegal. The appeals court made clear that this case was questionable,” he added.

“The remaining charge is hanging on by a thread, and we are confident that once it is put before the court, it will be dismissed on its face.”

So, down goes count 2.

Count 1 could still pose problems for Perry. The court was unable to dismiss the abuse of power charge because, under Texas criminal procedure laws, “as applied” challenges have to be brought to trial and cannot be adjudicated during the pre-trial phase. Still, leading attorneys believe that the statute upon which that charge is based is unconstitutional.

Eugene Volokh explains:

Count I of the indictment essentially alleges that Governor Perry violated Section 39.02(a)(2) of the Texas Penal Code when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office. The prosecution alleges that Governor Perry exercised this veto “with intent to harm another” — namely, District Attorney Rosemary Lehmberg and the Public Integrity Unit.

But this count suffers from two independently fatal flaws: (1) the legislature is not allowed to criminalize the governor’s exercise of his veto power, and (2) Governor Perry is entitled to absolute legislative immunity for any exercise of his veto power.

There are, of course, constitutional limits on the governor’s veto power. The legislature can override a governor’s veto with a two-thirds vote. The legislature can threaten not to enact laws that the governor supports if he continues to exercise his veto in a manner with which it disagrees. The legislature even has the power to impeach a governor for a veto. And of course, the people of this state could always vote a governor out of office because of a veto.

The legislature can also criminalize acts of political corruption, such as the acceptance of a bribe in exchange for a veto. Notably, however, the illegal act in that circumstance is the acceptance of the bribe — not the veto itself. So a bribery prosecution would not trigger any of the separation of powers issues that plague this prosecution. See, e.g., United States v. Brewster, 408 U.S. 501, 526 (1972) (“There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.”).

None of these constitutionally permissible acts authorizes criminal prosecution for the governor’s exercise of his constitutionally prescribed veto power.

We will keep you posted on how Perry’s team looks to challenge the remaining felony charge.

You can read Legal Insurrection’s coverage of Rick Perry here.

Amy Miller is on Twitter @ThatAmyMiller

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Comments

The socialist leaders of Austin, who backed the drunk DA, managed to find a RINO attorney that wanted his 5 minutes of fame. Nothing in either indictment is reasonable. But it let a few butthurt socialists get “revenge” on Perry.

    It’s the only way the Dims know how to play politics. They know that in the long run they can never win on the merits of their ideas, so they use dirty tricks. They even do it against their own.

    The irony is that she wasn’t just a “drunk DA.” She was a blindly drunk DA who was driving down the road with an open bottle of vodka in her car, putting the lives of dozens (perhaps hundreds) of people at risk. And then, when she got caught she tried to use her influence to get off. When that didn’t work she began to threaten the officers arresting her.

    And the prog borg has the nerve to accuse Perry of abusing his power. Typical prog projection. Disgusting.

Heh!

What appears to have happened is this hackery in Austin got the PIU killed off as a Travis County power-base.

“Suggestions: It could go to the AG’s office, a special prosecutor at the AG’s office, refer back to the DA in the district that you’re from, the county that you live. Again the Senators will make these decisions,” [Dan] Patrick said.

There’s just no support for funding the damn thing any more. The Texas Senate is not expected to even bring it up.

If “coercion of a public servant” with official acts were in fact a crime, the jails would be filled with most all of our politicians.

Nobody does a better job of criminalizing politics than Democrats. Come to think of it, nobody except Democrats criminalizes politics. The target in Texas is Rick Perry. Remember shortly after “the people” put Barack Hussein Obama into office, he ordered his “justice” department to investigate the attorneys who had advised GWB on enhanced interrogation? The objective of the investigation being to indict the attorneys for the professional advice they had given?

Thank you, Democrat voters.

    DaveGinOly in reply to FrankNatoli. | July 27, 2015 at 2:48 pm

    How often has Obama threatened Congress with a veto if they didn’t give him what he wanted? Veto threats are not criminal. They’re not even extraordinary. What’s the difference between issuing a veto threat and just vetoing legislation and stating why it was vetoed? Does that not send the message, “If and when you consider this again, I’ll do the same, until you make the changes I want”?

      Paul in reply to DaveGinOly. | July 28, 2015 at 7:46 pm

      Yeah, I seem to remember this “separation of powers” thingy-ma-bob and wasn’t the veto one of the explicit powers granted to the executive?

Wouldn’t Rosemary Lehmberg be guilty of the same offense for using her power to bring charges so as to harm Rick Perry?

    Ragspierre in reply to pdxnag. | July 27, 2015 at 12:29 pm

    If you could make that connection, sure.

    What she’s dead-bang guilty of is being a fat, old, ugly (in every possible way) Collectivist bitch.

    Too bad that isn’t a capital offense…

      Valerie in reply to Ragspierre. | July 27, 2015 at 1:26 pm

      Driving drunk is a capital offense: all you have to do is try to violate a law of physics. And if you do, there is a strong possibility you will take an innocent person with you.

      Gremlin1974 in reply to Ragspierre. | July 27, 2015 at 7:28 pm

      I would have thought that her threats against the police officers would at least lead to action by the Bar, but I don’t claim to know really anything about such things.

        Ragspierre in reply to Gremlin1974. | July 27, 2015 at 7:52 pm

        The Texas Bar and most others are very tender on the subject of lawyers with substance abuse problems. They offer a lot of support to rehabilitate them, and cut them a lot of slack.

And here’s how we tolerate the GOP playing:

Boehner Cries During Golf Channel Interview:
http://www.huffingtonpost.com/entry/john-boehner-cries-golf-channel_55b65c20e4b0224d8832e682

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