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Monthly Archives: February 2016

Soft On Crime: The Governor’s Indictment Thrown Out

The blaring above-the-fold headline in many Texas papers today (February 25, 2016) describes how the Texas Court of Criminal Appeals determined that former Governor Rick Perry committed no crime when he used his government position to coerce local law enforcement into shutting down hundreds of pending criminal investigations into official misconduct.

His defense team did a masterful job of convincing the public generally that he was being prosecuted for having exercised his constitutional authority to veto line-item budget appropriations, when in fact the criminal charges against him had absolutely nothing to do with the actual act of vetoing a legislative appropriation.

I’ve written about this before. The crime wasn’t the veto. The crime was the coercive threat. It is a crime to abuse public authority, using threats to suborn criminal investigations and thereby attempt to induce a public official to act against their own and the public’s best interests.

Here’s some relevant coverage:

https://www.texastribune.org/2016/02/24/texas-high-court-dismisses-rick-perry-indictments/

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/24/charges-against-rick-perry-dismissed-by-texas-high-court-on-constitutional-grounds/

More significant than the outcome is the decision by the Court of Criminal Appeals (influenced by amicus briefing on First Amendment free-speech issues provided by Eugene Volokh and others) that the coercion statute (Texas Penal Code Section 36.03) itself is overbroad as written, and therefore unconstitutional. Here’s a copy of the Texas Court of Criminal Appeals decision in .pdf format: Ex Parte Perry, No. PD-1067-15, Texas Crim. App. (February 24, 2016).

It is a tricky, difficult thing to successfully draft a criminal statute that addresses communication. If someone foments armed revolution, are they committing a crime, or are they just behaving like an average Twitter account holder?

If someone passes a note to a bank teller that reads, “This is a hold-up,” is that someone robbing the bank, or are they just complaining about how long they’ve been waiting in line? Sure, that someone’s wearing a ski mask, but it’s cold outside. And they’re carrying a gun, but maybe that’s just to celebrate their Second Amendment open-carry rights.

I believe the coercion statute was constitutional — it  had a chilling effect only on public expression to the extent that it criminalized credible abuses of office. The statute didn’t prohibit a public official from expressing an opinion, making a case, or shouting from the rooftops. It prohibited a public official possessing the actual capacity to abuse office from holding the public hostage with the threat to exercise that capacity.

 

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Some Unsolicited Advice For the Clinton Campaign

I’m not a political operative. I’m just not. I’m not some K Street whiz with my finger on the pulse of America. I know a lot about the fussy internal machinery of elections, and the nasty realpolitik of voter intimidation, injunctions, election contests, and so on.

But I’m not a marketing guy.

However, just as one does not need to be a cobbler to know what an uncomfortable shoe feels like, one does not need to be a political marketing genius to know when a fundraising email campaign is DOING IT WRONG.

So, for months now, I’ve been on Hillary Clinton’s fundraising email list. Interestingly, I’m not on Bernie Sanders’s list. My being on one candidate’s list or another is in my view pretty much an accident of fate — at present, I don’t have any money to give anybody, and I’m not wildly enthusiastic about any specific candidate.

I certainly haven’t endorsed anybody. I’m a Eugene Debs man, myself, but he isn’t running this year. I would note in passing that the statement made by Mr. Debs upon being sentenced for sedition (for supporting unions, fair wages, good working conditions—e.g., simple human decency) is one that should be endorsed by any thinking person, and that I would be more inclined to support any current candidate who echoed its sentiment. He said,

Your honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, and while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.

But, be that as it may. Hillary Clinton is running for her party’s nomination, and her campaign office is sending me what seems to be around 30 emails a day asking for money. Here’s one I got today from “Robby Mook” (actually the real name of a real, and probably very nice and very competent, person) her campaign manager:

More of Bernie Sanders’ supporters have stepped up to donate to his campaign than ours have.

I know that. You probably know that. And holy cow does Bernie Sanders’ campaign know that.

And here’s another one by Huma Abedin, the vice chairwoman of Hillary for America:

Last night, Bernie Sanders said this to the Washington Post: “What this campaign is about, and I’m seeing it every day, is an excitement and energy that does not exist and will not exist in the Clinton campaign.”

I am so tired of Hillary’s team being dismissed and written off like this. On the road with Hillary every day, I see countless women, men, girls, and boys of all colors and creeds who are inspired by Hillary, and excited to make her vision a reality.

Well, I’m just a simple big-city lawyer, but I can tell you that these are great fundraising appeals.

For the Sanders campaign.

Email after email, going on and on about how Bernie is raising more money; Bernie has more energy; Bernie is ahead in the polls; Bernie is kicking ass. Bernie, Bernie. BERNIE!

Gosh, Robby and Huma, why would I give any money to your candidate? This Sanders fellow sounds like a real barn-burner. Apparently he’s quite the savvy fundraiser and campaigner. He hasn’t asked me for a penny, and seems to be doing quite well nonetheless. Meanwhile, your candidate keeps jamming up my inbox with wheedling, self-pitying emails about how desperately behind she is in the Iowa caucus, and what a terrible tragedy it would be for America if Bernie got the party nomination instead of her.

There is an additional narrative in the emails, but it isn’t being pushed very hard. The narrative is suggestive that (1) if we don’t nominate a woman to run for President, then (2) the vast unwashed horde won’t be motivated to vote for some grandpa-socialist in November 2016, and (3) in 2017, President Trump will declare “Year Zero,” round us all up, and send us off to the re-education camps.

I’ll buy part of that narrative. As a progressive rational human being, I totally agree that “President Trump” would bring about the end of Western civilization. Actually, I’d say that if any of the GOP candidates for 2016 that have thus far poured out from the clown-car of our collective nightmares were to win the presidency, it’d be the end of Western civilization.

But none of Hillary Clinton’s fundraising emails have managed to tout why she’s fundamentally a better candidate than Bernie Sanders, or (beyond her desire not to lose) why I should pony up some money for her. (I will say that the overall Clinton fundraising does show a bit of K Street razzle-dazzle by asking for only one dollar and no more than that amount—capping the request at a single dollar is an inspired PR move that helps defuse the argument that Clinton is the “big money” chosen one.)

A fundraising email should not provide free publicity for one’s opponent by touting how badly one is faring against said opponent. A fundraising email should express how confidently one is striding forward to win the New Hampshire primary and Iowa caucus, as stepping stones to the inevitable nomination for party candidate, and fated, fêted, victory in November.

One should perhaps instead say,

“We are going to make history. Would you like to join us?”