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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.
Charles Kuffner has linked to and commented on this interesting story from the Dallas Morning News investigative blog. Briefly, members of the Texas Democratic Party have asked the U.S. Department of Justice to investigate the 2010 armed raid by the Texas Attorney General’s office on the group Houston Votes.
So, why do I say that Abbott has played the race card?
In the body of the story, there’s this press-release response from the Abbott campaign, claiming that the executive director of Houston votes admitted that the group’s members had “fraudulently signed voter registrations and illegally collected information to sell to ACORN-linked Project Vote.”
There’s no mention of race within that sentence. But there is the word “ACORN.” On the right (and especially on the extreme fringe of the far right, e.g., among white supremacists who communicate their views online), “ACORN” is understood to mean “black,” or more particularly, to refer to a defined class of poor African-American voters who bear the brunt of white supremacist hatred. Illustrations of this odd but patently successful re-branding of ACORN by racists abound, most of them too vile and profanity-laced to cite politely (the link is to a follow-up story about Abbott supporter Ted Nugent’s description of President Obama as an “subhuman mongrel ACORN community organizing gangster.”) This story describes how the ACORN slander translated into racially-motivated threats in specific instances.
The well-placed (and baseless) smearing of Project Vote with the “ACORN” slander in a press statement is deliberate – it sends a message to the more openly bigoted hardcore racists in Texas, letting them know that Greg Abbott is on their side.
For those of you making use of web readers, the cited links are: