Vindication is bittersweet, coming too late to help his presidential campaign
Wednesday morning, the Texas Court of Criminal Appeals, the state’s highest criminal court, dismissed the remaining charge against former Gov. Rick Perry.
Perry had been indicted in 2014 by a Travis County grand jury for abuse of official capacity and coercion of a public servant, stemming from his threat and then veto of funding for the Public Integrity Unit of the Travis County District Attorney’s Office. Perry had said he was vetoing the funds after then-Travis County District Attorney Rosemary Lehmberg, a Democrat, was arrested for drunken driving and caught on video being abusive and disrespectful to the law enforcement officers.
Because of Lehmberg’s conduct, said Perry, she had lost the public’s confidence and was unfit to be running an “integrity” unit. She served a short jail sentence but refused to resign, and Perry carried out his veto threat.
The coercion charge had been tossed out by the Third Court of Appeals in Austin last year on First Amendment grounds, and this dismissal now puts the rest of the case to an end.
It’s a victory, but a bittersweet one, coming months after Perry suspended his presidential campaign. This has been a tough year for any candidate to get traction against Donald Trump, but pending criminal charges made it even more difficult for Perry to get traction with donors and supporters. A pro-Perry PAC covered his hefty legal bills, but still, those were resources that weren’t able to help his campaign.
The court’s opinion can be read here. Eight of the nine Court of Criminal Appeals judges decided the case. Judge Bert Richardson, elected to the court in 2015, was appointed the trial judge and was still serving in that capacity, so he was not part of the arguments, deliberations, or rulings, as reported by the Austin-American Statesman.
Pretrial appeals allowed for charges against elected officials
As noted above, the lower court had dismissed the coercion charge, a decision that was affirmed by Wednesday’s ruling. The Third Court of Appeals had also declined to dismiss the abuse of official capacity charge. As Amy Miller wrote for Legal Insurrection:
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.
Here, however, the higher court noted that some claims are appropriate to address in the pretrial phase when “the rights underlying those claims would be effectively undermined if not vindicated before trial,” such as constitutional rights regarding double jeopardy and bail. The court added that “facial constitutional challenges” were also able to be adjudicated during pretrial.
The opinion cites several cases where elected officials were permitted to make a pretrial appeal of criminal charges, on the basis that the threat of criminal prosecution can have a detrimental effect on their ability to perform their “constitutionally assigned duties.” The court quoted language from a Third Circuit case, United States vs. Helstoski:
We must recognize that the mere issuance of an indictment has a profound impact on the accused, whether he be in public life or not. Particularly for a member of Congress, however, publicity will be widespread and devastating. Should an election intervene before a trial at which he is found innocent, the damage will have been done, and in all likelihood the seat lost. Even if the matter is resolved before an election, the stigma lingers and may well spell the end to a political career. Far from being hyperbolic, this evaluation of an indictment’s effect is coldly realistic. It cannot be doubted, therefore, that the mere threat of an indictment is enough to intimidate the average congressman and jeopardize his independence.
Based on this reasoning, the opinion explains, it was appropriate to address the final charge against Perry during pretrial:
If a statute violates separation of powers by unconstitutionally infringing on a public official’s own power, then the mere prosecution of the public official is an undue infringement on his power. And given the disruptive effects of a criminal prosecution, pretrial resolution of this type of separation of powers claim is necessary to ensure that public officials can effectively perform their duties.
Legislature cannot limit a Governor’s veto authority based on the reason for the veto
Turning to the merits of the case, the court noted there were some appropriate limits on a Texas Governor’s veto power, such as time limits for making the decision, restrictions on the authority to veto only part of a bill, and the ability for the Texas Legislature to override a veto with a two-thirds vote of the members present in each House.
In contrast to those reasonable and accepted limits that were codified in the Texas Constitution and laws, attempts by a legislature to limit a governor’s veto authority based on the reason for the veto were inappropriate. Citing a United States Supreme Court case, the court noted the veto’s “importance” to our system of government:
The Constitution in giving the President a qualified negative over legislation—commonly called a veto—entrusts him with an authority and imposes upon him an obligation that are of the highest importance, in the execution of which it is made his duty not only to sign bills that he approves in order that they may
become law, but to return bills that he disapproves, with his objections, in order that they may be reconsidered by Congress. . . . The power thus conferred upon the President cannot be narrowed or cut down by Congress, nor the time in which it is to be exercised lessened, directly or indirectly.
This reasoning also applies to Texas law, said the court. “The Legislature cannot directly or indirectly limit the governor’s veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.” Furthermore, it was inappropriate for courts to “examine the motives behind a veto or second-guess the validity of a veto.”
Vindication, but at what cost?
From the beginning, Perry was adamant that the charges against him were politically motivated and expressed confidence that he would ultimately prevail, even going so far as to say that he would veto the funds all over again, given the chance. On the day he was booked and fingerprinted, he held a press conference outside the criminal justice building that was closer in tone to a pep rally. His mugshot, the featured image on this post, went viral on social media because of Perry’s confident winking smile, and he then went with his attorneys to a local hamburger place, Sandy’s Hamburgers, for some soft-serve ice cream.
Perry has been vindicated today, but at a high cost. Again, it’s impossible to predict what would have happened, but there were multiple reports of donors “keeping their powder dry” waiting to see if Perry would be able to beat the rap. If both charges had been dismissed instead of just one back in July, it might have been a different story.
Travis County, containing the city of Austin, has skewed more liberal than the rest of the state for a long time, and many conservatives have expressed concerns about the power wielded by Democrat-dominated grand juries over the mostly-Republican elected officials who represent Texas in the state capital and in Congress.
Former House Majority Leader Tom DeLay was another Republican who found himself in the cross-hairs of a Travis County grand jury. Indicted in 2005 on criminal charges of conspiracy to violate election laws, DeLay resigned as Majority Leader and then announced he would not seek re-election. He was convicted in 2011, sentenced to three years in prison, but allowed to remain free on bail during the appeals. Eventually, an appellate court overturned DeLay’s conviction and the Texas Court of Criminal Appeals affirmed that decision in 2014.
As the Helstoski court wrote regarding criminal charges against elected officials, “the stigma lingers and may well spell the end to a political career.” DeLay wasn’t exonerated until nearly a decade after his political career was ended. Perry’s vindication came quicker, but not soon enough.
UPDATE: Governor Perry will hold a press conference in downtown Austin at the Texas Public Policy Foundation at 2:00 p.m. Central Time. Livestream can be viewed here. We will update this post once video is available.
This post has been updated.
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