This whole thing is absurd. Perry is being charged criminally? For vetoing a bill?
Insane.
Wow. I’m defending Perry but it is abundantly clear you haven’t read a single post in this thread.
Correct me if I’m wrong, but based on what I heard one particular prosecutor say on TV, the prosecutor is expected to perform the duties of the judge and defense in that they are not supposed to submit inadmissible evidence or commit character assassination, etc. (I know: fox, hen house; ham sandwich and all that.) The prosecutor I saw said that she would often find herself more restrictive than many judges on what she would present. Obviously depends on the prosecutor, but in theory?
I don’t know what Texas expects of its prosecutors, per se. And it’s worth noting that getting an indictment is not all that useful if you can’t turn it into a conviction. IMHO, however, the idea of prosecutors “self-policing” is pretty laughable.
No. The prosecutor in a grand jury is not expected to serve simultaneously as judge, prosecutor, and defense attorney. The grand jury is explicitly permitted to consider evidence that would be inadmissible at trial – hearsay evidence, for example. Neither in theory nor in practice.
Now, I suppose I might imagine some hyper-restrictive prosecutor who limited himself or herself in this way. But I’ve never heard of any real life prosecutor doing any such thing, and having dealt with as many prosecutors as I have, I’m going to say it’s a fairly humorous vision.
The grand jury here was certainly entitled to find that Perry committed the acts in question, and I suspect that’s why some grand jury members are reacting poorly to the accusations now that this was politically motivated. The distinction between facts and law is not clear to many people, and I’m sure these grand jurors were no exception. They honestly and fairly reached the conclusion that Perry threatened a veto and then executed one with the motive of forcing the resignation of the DA in question. They’re certainly upset to hear people claiming that politics made them reach this conclusion.
But that’s not the conclusion that is problematic. The troublesome conclusion here is that such conduct is criminal. I’m pretty convinced that it isn’t, and I cited a nearly identical case above in which the Texas appellate court ruled that it wasn’t.
Thanks. I was able to use that to look up the case, here.
Hanson does appear to be directly applicable. In particular,
The addition of subsection (c) seems to clarify that Perry’s authority as Governor (i.e. he is a member of a governing body or government entity and the action is an official action taken by his role in that government entity) makes his threat of veto and followup veto to be protected acts and not a violation of the law.
Count I of the indictment is about misuse of authority via misuse of funds. A straight reading of the indictment and McCrum’s statements suggest that vetoing the funding that was approved by the legislature is a misuse of funds and therefore illegal. That cannot be right. The only way to make sense of count I is to tie it to the attempt to force Lehmberg’s resignation, saying that use of the agency’s funding as leverage against the Travis County DA and head of the PIU is the action that is illegal.
The issue seems to revolve around whether the Governor’s political clout with his line item veto is an appropriate use to influence another elected official’s resignation. Hanson seems to support that even though he cannot fire her, he can request she resign, and he can use his line item veto under his authority as Governor.
I didn’t mean to suggest that. My point was I didn’t feel it appropriate for him to use the threat of line item veto to force her resignation. Cutting funding for the agency is within his authority as Governor using the line item veto.
Perry had already stated he wouldn’t be running again.
The complication comes because the Travis County DA has a special State authority level as head of the PIU. It is that state authority that the governor was trying to affect, and only coincidentally strikes at a county DA.
As previously mentioned, those other county district attorneys do not have a State authority equivalent to the PIU. It is Lehmberg’s power as head of the PIU that Perry was striking at, and it is only a happenstance that the head of the PIU resides with the Travis County DA that he is affecting Travis County.
One other point to note is the discussion regarding Perry’s attempts to negotiate other solutions, including Lehmberg’s stepping down but taking another role in the DA office (i.e. staying on payroll, not losing her job) and appointing a Democrat to replace her. The offer to appoint a Democrat, perhaps even her deputy, does speak to a step to appease the Democrats and counter the argument he would be trying to appoint a crony to affect investigations of the CPRIT. If Perry could be trusted.
On the flipside, these very negotiations may be part of the evidence that McCrum calls forward to try to substantiate the charges that have been laid. Especially with regards to his considering charges regarding bribery.
Then the case won’t survive a motion to dismiss, will it?
It may not. However, the outcome of any litigation is impossible to predict with 100% accuracy. My guess is that the trial court will either throw it out or a jury will acquit.
You’ll forgive me for having any doubt about your statements, but I looked into this myself.
This is what the American Bar Association has to say on the matter:
You said: “I’ve never heard of any real life prosecutor doing any such thing, and having dealt with as many prosecutors as I have, I’m going to say it’s a fairly humorous vision.” If that’s truly the case, it doesn’t speak very highly of the professional ethics of prosecutors. Perhaps Shakespeare had the right idea after all.
The ABA’s standards are (1) not binding except where adopted by state bar associations, and (2) what you might call “aspirational”. Lawyers are supposed to exercise “total candor” but every civil trial lawyer in the country lies about his settlement authority.
Do you believe these standards to be mandatory?
The race I’m talking about is the one for the Republican Presidential Nomination. This is Perry’s last term as Governor, but his actions indicate he’ll be trying for the nomination again.
I think procedurally, it’s called a motion to quash in Texas.
But I would expect that this indictment would not survive a motion to quash.
Here’s an entire law review article about the use of hearsay at the grand jury where such hearsay would be inadmissible at trial.
Shocking, huh?
Needless to say, the practice doesn’t violate ethical rules, and the ABA’s rules are not binding.
From the article:
Sorry, you’re right. I don’t think he is a contender at the national level even without this incident. Then again, we got W.
This question was not posed to me, but I’ll answer it: This hypothetical is 100% politics, 0% criminal. I would completely defend it as a permissible use of political power.
Whether it is wise, or would lead to reelection of the participants - well, now that is a different question.
(And there may be a constitutional/federalism issue in “stripping all red states of federal disaster aid,” depending on how it were done, but that’s not really material to your query.)
Perry doesn’t have the Bush Family behind him. If the Republicans want a Texan, Ted Cruz has been out-Teabagging our governor for a while. And it’s hard to forget how Ricky emerged from the last primaries covered in something other than glory…
Good news! In future, he will pay his high-powered legal team out of his campaign funds. Previously, we Texans had been paying; so far, we’re in the hole $80,000.
Call it a conspiracy theory if you want, but I’m thinking that nobody, including the district attorney, thinks that the charge has any merit. The primary purpose is to prevent Perry from running for president in 2016. Or, failing that, so the Democratic nominee can run ads screaming:
Someone should have told Perry that-- He’d have avoided this whole issue if he hadn’t tried to apply political pressure to a criminal matter that had already been settled by the criminal courts.
If I had to guess, I think the prosecutor knows the charge is legally meritless.
But I suspect he thinks that what Perry did should be illegal. And he’s willing to see how far he can push this indictment, because in his mind he’s not punishing an innocent person. He knows that at some point, sooner or later, the indictment will get quashed, or it will go to the trial court and he’ll be acquitted (a bad outcome, by the way, in terms of not setting and precedent) or he’ll get convicted and an appellate court will again have to speak to the general issue.