Indicted! Rick Perry and Abuse of Power
Texas Governor Rick Perry has been indicted this afternoon on charges of abuse of power. The basic facts of the case appear not to be in dispute.
What Happened
Travis County DA Rosemary Lehmberg pled guilty to DWI and served 45 days in jail. After serving her jail sentence, Lehmberg returned to her office and refused to step down. Perry announced that he would veto a bill that funded the Public Integrity Unit, a division over which Lehmberg was supervisor, unless she stepped down because he felt that she had lost the public’s trust. Later he followed through and did veto the bill.
Politics As Usual
On its face, this is a relatively ordinary political dispute. Perry urged Lehmberg to resign in hopes of replacing her with a Republican of his own choosing. Democrats resisted out of fear that Perry would replace her with a Republican. The indictment is clear that Perry is not accused of abuse of power for actually vetoing the bill which he both legally and factually has the absolute privilege to do for any reason he wants to or no reason at all – but rather for announcing beforehand his intention to veto the bill.
Protected Speech
I would think The statement “I plan to veto this bill,” when uttered by a sitting Governor should qualify as political speech entitled to First Amendment protection even if there are issues under Texas law with respect to privileges afforded to the Governor acting in his official capacity. Admittedly, I do not know much about this area of the law.
Precedent
There is precedent for this type of action as 20 years ago, a grand jury indicted the newly elected Kay Bailey Hutchison on charges of misusing her prior office of state treasurer. (The Travis County district attorney’s office runs the Public Integrity Unit, which enforces ethics laws for all state officials, and Austin is the county seat.) Hutchison was accused of using state employees and her state offices to conduct personal and political business and then ordering records of her activities to be destroyed. Among the specific accusations was that she used state employees to plan her Christmas vacation in Colorado and write thank-you notes. Hutchison was acquitted of all charges.
The Charges
According to the prosecutor, Perry’s veto threat amounts to a “misuse” violating a statute defining as an offense “misus[ing] 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.” Also, Perry’s threat of a veto is in violation of a statute prohibiting anybody in government from “influenc[ing] or attempt[ing] to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influenc[ing] or attempt[ing] to influence a public servant to violate the public servant’s known legal duty” because threatening to veto is not an official action. That statute also specifically exempts “an official action taken by the member of the governing body.”
Is the threat of a veto an integral function of officially governing? I would say yes, but that’s for courts to decide.
Caveats
I think like Hutchison, Perry will most likely be acquitted though there are some pitfalls. Perry has no direct control over Lehmberg’s job, a locally elected position, and a grand jury rejected a former opponent’s attempt to have Lehmberg removed from office.
Perry’s own words may do him in also. When Perry decided to cut off the $7.5 million (over two years) in state funding for the watchdog unit with a line-item veto, he stated “Despite the otherwise good work the Public Integrity Unit’s employees,” a Perry statement said after the veto, “I cannot in good conscience support continued State funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.” By publicly tying his veto of the unit’s funding to his effort to push Lehmberg from office, Perry may have run afoul of state rules that prohibit coercion or bribery of public officials.
Public Integrity Unit
The unit dates back to the 1980s and watches state politicians to make sure they don’t violate election and anti-corruption laws. One of the highest-profile investigations by the unit is the ongoing criminal case against former Rep. Tom DeLay, who has been accused of money laundering to hide corporate donations to state GOP candidates.
Most public officials in Texas are Republicans meaning the unit frequently investigates Republican officeholders. The fact that the people responsible for the unit are the liberal voters of Austin makes it about as popular with Texas Republicans as ebola.
Effects of the Veto
The Public Integrity Unit didn’t close shop after Perry cut off funding. The local county decided to fund a reduced operation for this year, but that still meant layoffs for two employees, reassignment or early retirement for 18 others, and strict limitations on taking new cases.
