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


Donations tax deductible
to the full extent allowed by law.