When the national trend seems to be that of raised eyebrows and tut-tuts about Governor Perry being an accused felon, I’m as much at fault for following that trend as anyone. In rebuttal to the generally pessimistic view of the efficacy of criminal charges against Perry, Charles Kuffner, the Texas Tribune, and others have offered more nuanced and balanced coverage of this story than what is being provided by the media at large. See, e.g., http://offthekuff.com/wp/?p=62320 and http://www.texastribune.org/2014/08/19/group-behind-perry-indictment-previously-pursued-d/.
As Mr. Kuffner points out, in order to accurately report on this story, one must bear in mind that the original criminal complaint against Perry was filed before there was any veto of the funding for the Public Integrity Unit at the Travis County D.A.’s office.
I can understand why disreputable “experts” such as the editorial staff of the Wall Street Journal and Breitbart are insistent on presenting this story as one about a poor, beleaguered Texas Governor being unfairly abused just because he vetoed something. The focus of Perry’s defenders is all on the undisputed authority of the Governor to veto bills. The veto itself is irrelevant. The important thing isn’t the veto, its the brass-knuckles and arm-twisting that Governor Perry engaged in prior to the veto that is the thing to focus on.
The State isn’t complaining that it was victimized by the veto. The State argues that it was victimized by the Governor’s bloody-toothed threat against the continued maintenance of public order and the legal welfare of its citizens. That’s where the criminal outrage occurred.
Unlike the Governor’s most ardent supporters, legal experts like Professor Rick Hasen aren’t making the mistake of focusing all their attention on the veto. Instead, they (and by reflection, me) are tending to criticize the Governor’s indictment on technical grounds, arguing that notwithstanding the Governor’s obvious bullying, such bullying is not necessarily criminal. http://www.slate.com/articles/news_and_politics/jurisprudence/2014/08/the_perry_indictment_is_one_more_example_of_criminalizing_politics_watch.html
So (to engage in a little hyperbole), why are all these law professors giving aid and comfort to the enemy? Professor Hasen goes so far as to imply that many ethics-related criminal investigations are infirm, and he makes use of a phrase that has suddenly become very popular among a certain set of talking heads by decrying the “criminalization of politics.”
That’s a catchy phrase that belies a somewhat facile argument, given that politicians can and sometimes do actually commit crimes. And no one in Texas would be particularly shocked or surprised if in the end it turned out that Perry had committed crimes, given that many of us strongly suspect that he’s been playing things pretty fast and loose for as long as he’s been in politics. I suspect Rick Hasen’s underlying fear isn’t that Perry is innocent, but that conservatives might take advantage of any legal misstep on the part of the special prosecutor to justify launching an all-out retaliatory nuclear strike of criminal charges against liberal politicians.
The problems that I’m having as a reader of Texas criminal statutes is that I’m worried that the Texas Legislature has kept the door open to the commission of political crimes by failing to adequately address such criminal acts with effective laws.
It’s not that I think Perry is innocent, but that I’m afraid he might be taking advantage of loopholes in Section 39.02 of the Texas Penal Code that are wide enough to allow no end of truly reprehensible criminal acts to be conducted without consequence.
As a parting thought, here’s a hypothetical situation to consider if you are having trouble imagining any circumstance in which the threat of a veto might be a criminal act.
Suppose a Governor had spent a fair amount of time building and promoting the transfer of taxpayer money from the State Treasury to various trust accounts, knowing that those trust accounts were designed in such a way as to discourage public oversight and facilitate the funneling of money to private interests for the benefit of the Governor and his or her friends. For the sake of the scenario, call one of these funds the “XYZ Fund.”
In other words, assume for the sake of argument that the Governor had engaged in straight up simple theft, a plain-old regular everyday sort of crime no different in nature than a purse snatching, a smash and grab or a burglary, except on a much larger scale.
Now suppose that after years of dogged legwork, criminal prosecutors had started to put the pieces together, tracing through all the shell corporations and dummy accounts, figuring out where hundreds of millions of dollars of the State’s money that had been “lost” actually ended up.
Assume for the sake of argument that the Governor in question began to have a dawning awareness that his or her tracks hadn’t been covered perfectly, and that the game of cops and robbers was drawing to a close. Further assume that fortuitously, and at about the same time as the criminal investigation was going on, the nominal or titular supervisor of the agency conducting the criminal investigation was arrested while very, very drunk, and was videotaped while being embarrassingly belligerent.
Assume in this scenario that the Governor then placed a few phone calls to the people conducting the criminal investigation, in which he or she said, “You need to shut down your ongoing investigation of the XYZ Fund, or I will shut you down.”
Most criminals who fear being caught don’t have the luxury of actually possessing any leverage over the investigators pursuing them. But the Governor occupies an unusual position, one in which it actually is possible to strong-arm law enforcement by threatening to withhold funding.
I don’t share Professor Hasen’s fear that the criminal prosecution of political acts is fraught with problems associated with the separation of powers among the judicial and executive branches of government, or that the prosecution of statements made by officials acting in the course and scope of their duties raises insurmountable First Amendment free speech concerns.
I agree that the structural constitutional and legal problems of criminal prosecution can sometimes run afoul of other important political doctrines in the abstract, but context counts for everything. I (and anyone with an imagination, really) can construct scenarios in which the whispered threat of a veto isn’t an official act, but a private and wholly illegal extortion.