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.