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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:
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.
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.
One way to stir up excitement and interest in public law is to get a grand jury indictment of a sitting Texas Governor – it’s the sort of thing that happens every 97 years or so, and it certainly gets people’s attention. And one cannot help but enjoy a bit of schadenfreude when the target of such an indictment happens to be a former Aggie cheerleader who has made a career of Louisiana-style cronyism while espousing appallingly bad political ideas in order to attract support from people who thought George W. Bush was too cerebral.
But I have to reluctantly agree with a number of legal critics that the indictment (http://www.scribd.com/doc/236935338/Rick-Perry-Indictment-via-KXAN) is a stretch, based on the history of the criminal statutes that the prosecutor has relied upon.
Governor Perry was indicted on two criminal counts, as follows:
I. COUNT NUMBER ONE – First Degree Felony – Abuse of Official Capacity
The first count (Abuse of Official Capacity) is a daring interpretation of Section 39.02 of the Texas Penal Code, which criminalizes (1) a public servant’s (2) intentional or knowing (3) misuse of government property under the servant’s control (4) when done with the intent to harm another person. Here’s the statute in question: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.39.htm#39.02
The indictment alleges that (1) Governor Perry (a public servant) (2) intentionally or knowingly (3) threatened to withhold around $7.4 million in government funds (i.e., the government property) that had been appropriated by the Legislature for the Travis County District Attorney’s Office, in order to (4) harm the Travis County District Attorney. The “intentional or knowing misuse” in this case is alleged to be the politically vindictive veto of the budget line item in the General Appropriations Act passed by the 2013 Texas Legislature.
This criminal charge doesn’t seem particularly sporting or cricket at first glance, given that the Governor’s innate and reflexive political vindictiveness has never been deemed anything other than a moral outrage before now. Why is this veto so special as to merit criminal prosecution when none of Perry’s other vetoes ever led to criminal charges?
I suspect that the prosecutor’s argument will be that this particular veto is different because (1) it was not a veto of a policy statement or change in the law, but a veto that functioned to intentionally misdirect statutorily mandated and previously earmarked State money, and that (2) this veto was the explicit execution of the Governor’s clear and plainly-stated threat to punish the voters and taxpayers of Travis County in retaliation for the Travis County D.A.s refusal to resign her elected office, and was self-interested political payback with a dual motive, because the veto not only would have punished Travis County voters, but would also have shut down the very Public Integrity Unit that is responsible for investigating crimes of official misconduct committed by Texas public officials.
(A brief explanation as to why the Travis County D.A. has jurisdiction over crimes of official misconduct may be in order for some visitors. The State of Texas is regarded as having it’s official “home” in Austin, Texas, which is in Travis County. Crimes of official misconduct are regarded as crimes committed against the State of Texas – the State is therefore the victim, and because the State “lives” in Austin, the Travis County D.A. has jurisdiction over these crimes, even when committed by officials anywhere else in Texas. By law, the State pays the cost of this extra statewide investigative work that gets imposed on the Travis County government, given that the extra work is burdensome (most counties don’t have to conduct statewide investigations) and is imposed as an incidental consequence of the county’s political geography).
Why is this crime a first degree felony?
Like a lot of property-related offenses, this crime has a range of punishments depending on the value of the misused State property in question. Because the vetoed legislative appropriation was for (a lot) more than $200,000, and that level of money determines the severity of the offense, this specific indictment is alleging the commission of a first degree felony. That’s the kind of indictment that can knock stories about Ebola epidemics and Justin Bieber’s comeback tour right off the front page of the paper.
II. COUNT NUMBER TWO – Third Degree Felony – Coercion of Public Servant
(News sources I’ve seen have indicated that the second count is described as a third-degree felony, which indicates that the prosecutor’s intent is to argue that Governor Perry threatened to commit a felony. That’s because unless the charge is enhanced by the assertion that the Governor’s threatened act (vetoing the budget line item) is a felony, this would be a Class A Misdemeanor).
The second count is an equally audacious application of Section 36.03 of the Texas Penal Code (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.36.htm#36.03), which criminalizes the (1) use of coercion (2) by a person to (3) influence, or attempt to influence (4) a public servant (5) in a specific exercise or specific performance of that public servant’s official duty or (6) to violate the public servant’s known public duty.
If you looked at the text of the statute supplied by the Texas Legislative Council, you probably noticed the last paragraph of that law. Subsection (c) provides a blanket exception to the crime of coercion of a public servant if the person doing the coercion is the member of a governing body, and if the influence is being applied in the form of an official action taken by the member of the governing body.
Gentle readers, Section 36.03(c) is going to be a huge hurdle for the prosecution to clear, given that a veto is a decidedly official act when performed by the Governor. Admittedly, the Governor isn’t a “member” of a governing body in the usual sense – he’s not one of several people co-exercising the power of the State’s executive office. But he is the titular head of the Executive Branch, and he is authorized by the Texas Constitution to veto line item budget appropriations.
Here, the prosecutor is alleging that (1) the threat to veto funding of the Public Integrity Unit (the coercion) was used by (2) Governor Perry (a person) to (3) force (influence) (4) Rosemary Lehmberg (a public servant) to (5 or 6) resign from her elected post as Travis County D.A. (specifically exercising her official duty or violating her known public duty to continue to serve as D.A.).
Well, there was definitely a threat in there, and it was definitely applied to influence the Travis County D.A. to quit her elected office. And (at least in everyday parlance) the threat was coercive – “Quit, or else.”
“Coercion” is a defined statutory term in this context (the relevant portion of the definition is found in Section 1.07(a)(9)(F) of the Texas Penal Code. http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.1.htm#1.07. Notice that in the context of Texas criminal law, the threat to take or withhold action as a public servant is automatically coercive.
So how will the prosecutor maneuver through the rocky shoals surrounding the second count? I imagine the prosecutor will argue that while the act of vetoing legislation is in general a sanctioned legal act of the Governor, that this specific veto was illegal (because it was a misuse of State funds), and therefore this veto can’t be described as an official act performed by the member of a governmental deliberative body. The veto itself needs to be an illegal act, because if the veto wasn’t illegal, than the threat of the veto would only have supported a Class A misdemeanor and not a felony charge.
And it’s felony charges that help get this lawsuit onto the front page of the New York Times.
III. THE ORIGINS OF THE PENAL STATUTES IN QUESTION
“Coercion of a Public Servant” and “Abuse of Official Capacity” are not new crimes – they have existed in roughly their current wording since the adoption of the 1973 Texas Penal Code, which was itself closely modeled on the 1925 Texas Penal Code (for the 1925 laws, see the State Law Library resources at http://www.sll.texas.gov/library-resources/collections/historical-texas-statutes-%281879-1925%29/1925/).
People tend to forget that Texas has used a formal penal code and associated code of criminal procedure since 1856, but even those who know about the 1856 Texas Penal Code are often unaware of how closely all the subsequent state criminal codes were modeled on the general organization and structure of the 1856 laws.
Although the 1856 Penal Code doesn’t contain crimes that are exact analogues of the “coercion” statute and the “abuse of official capacity” statute, the older law does encompass the two divisions of public crimes from whence the current statutes sprang, those divisions originally being referred to as crimes of office and crimes of public justice.
(The endlessly entertaining 1856 Penal Code (with whole sections devoted to dreadful punishments (whipping and castigation for poor demeanor or to aid in the instruction of children! Pillories and hanging for horse thievery!) and reminders of pre-Civil War barbarity (crimes associated with assisting escaped slaves! Disparate punishments for freedmen!) is available in its entirety through the Texas Legislative Reference Library, here: http://www.lrl.state.tx.us/scanned/statutes_and_codes/Penal_Code.pdf
“Abuse of Official Capacity” is, at its heart, a property crime – it is a malfeasance of office that materially affects things of value that are owned by the State. In that respect, the current crime is a descendant of extortion and misapplication of tax revenue, and related crimes such as embezzlement and theft of State land titles. One can see the statute begin to stretch and tear at the seams – it’s a property offense which is being repurposed from criminalizing the misuse of State property to punishing the vindictive use of gubernatorial veto power.
And “Coercion of a Public Servant” is, at its heart, a crime against public administration. It is a fraud or manipulation of public institutions for private ends, and shares textual DNA with crimes like bribery and perjury. From the indictment, one can also see this statute start to pucker and collapse as it is put to a new use categorizing a particular veto as a criminal act.
I’m popping up a big vat of popcorn and settling in for what should prove to be entertaining legal fireworks, no matter what the outcome may be.