Traditionally, when anyone claims that a bipartisan group got together to protest anything, you can issue a snort of derision and comfortably state that if such group is bipartisan than pigs can take wing. However, in this one case Gov. Rick Perry seems to have pulled off the impossible.
Yes, somehow a bipartisan group of lawyers got together to file an amicus brief with the 390th District Court on behalf of Perry. On Monday, the group, led by former Texas Solicitor General James C. Ho, filed a brief contending that Perry's indictment was bogus and unconstitutional and that the charges should be dismissed.
The amici curiae is supposed to be a "diverse coalition of experts in the fields of constitutional and criminal law," as noted in the brief, but what's stunning in this case is that the group that signed on for this actually is diverse. There's Floyd Abrams, the lawyer who represented the New York Times in the Pentagon Papers case. Then there's Michael Barone, a resident fellow of the American Enterprise Institute. Ashutosh Bhagwat, a professor at UC Davis School of Law. Right alongside him on the list is Jeff Blackburn, founder and chief counsel of the Innocence Project of Texas. Stop and ponder that one for a minute. One of Perry's defenders is the guy who started the Innocence Project of Texas. Paul Coggins is a former U.S. Attorney appointed by former President Bill Clinton. Alan Deershowitz, the Felix Frankfurter Professor of Law at Harvard, is one of the most famous civil liberties lawyers in the country.
And we're not done yet.
Raul Gonzalez is a former justice on the Texas Supreme Court. Daniel Lowenstein is a law professor at UCLA. There's Eugene Volokh, another law professor from UCLA. Michael McConnell is a law professor at Stanford and was once a judge on the U.S. 10th Circuit Court of Appeals. John Montford is a former district attorney out of Lubbock, a former state senator and the first chancellor of the Texas Tech University System. Theodore Olson is former U.S. solicitor general and a former assistant attorney general for the office of legal counsel at the U.S. Justice Department. Then there's Kenneth Starr, the dude who not only busted Clinton for lying under oath about his affair with Monica Lewinsky during his time as U.S. solicitor general, but he was also a judge on the D.C. Circuit Court of Appeals.
It's a long list, but the thing that holds it together is this list is made up of a bunch of people that -- based on their backgrounds in First Amendment and Constitutional law at least -- are experts, and know what they're talking about. What makes their argument even more compelling is the fact that many of the people that signed on for this brief are either Democrats or come from purportedly left-leaning organizations, and they are defending Perry.
In case you somehow missed it, back in 2013 Perry announced that he would veto a bill funding the Public Integrity Unit that was overseen by Travis County unless District Attorney Rosemary Lehmberg stepped down. Lehmberg had been previously pulled over and arrested for drunk driving, which started this whole thing.
Despite the arrest and some very embarrassing video of a plastered Lehmberg, she refused to resign from her office after the incident. Perry wanted her out and used a classic political tactic to get rid of her, threatening the money. He followed through with his threat, withholding about $7.5 million from the unit. And then things got even more political, as they are want to do when money, power and politics all get stirred up at once.
In August, a grand jury voted to indict Perry on felony charges over his political acts. Perry had to surrender himself to be arrested (though the guy had a great mugshot and that glorious head of political hair looked flawless, as always) and the case has been moving forward since then. But that's where this brief comes in, laying out an argument cobbled together by some of the finest legal minds in the country on these issues, that Perry was engaging in "two ordinary political acts" and that his indictment was completely unconstitutional and the case should be dismissed forthwith.
Both counts of the indictment are unconstitutional and must be dismissed. The first count--which criminalizes Governor Perry's veto of a bill--violates the separation of powers enshrined in the Texas Constitution. The Legislature is not allowed to criminalize the exercise of powers that the Constitution specifically confers on the Governor, including the veto power.
And the second count--which criminalizes Governor Perry's threat to veto a bill if Travis County District Attorney Rosemary Lehmberg did not resign her office--violates the First Amendment of the U.S. Constitution and Article I, Section 8 of the Texas Constitution. Governor Perry "threatened" to perform an act that the Texas Constitution specifically reserved to him (a veto) in order to encourage a public official to engage in a lawful act (a resignation). That is constitutionally protected speech.
Or to translate, as governor, Perry had every right to veto the bill according to the Texas Constitution because the constitution gives the governor veto power. The state legislature can't criminalize his veto power in the first place (if the lege doesn't like it they can overrule him with a two-thirds majority vote or impeach him) and Perry is entitled to absolute legislative immunity any time he uses his veto power.
But whatever way you slice it, the Lege can't interfere with Perry this way, according to the brief. The Lege could have gone after Perry if he was caught giving or receiving bribes in relation to the veto, according to the brief, but Perry had every right to issue the veto itself and his indictment sets off all kinds of separation of powers issues.
Plus, the brief contends, Perry was within legal bounds when he threatened to veto the bill to try and get Lehmberg to let go of her office, because we all (mostly) get to say what we want thanks to constitutionally protected speech.
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So why are they doing this? Well, according to the brief, Perry's case could do a whole lot of damage even if he is ultimately acquitted.The brief even goes out of its way to note that none of this says that they approve of Perry's political tactics -- this is the state that created Lyndon B. Johnson after all, and we all know that Perry's political wrangling is par for the course in the Lone Star State, in particular -- but they argue that this is taking some basic disapproval way too far:
"Reasonable people can disagree on the political tactics employed by Governor Perry and his opponents. But to turn political disagreement into criminal prosecution is disturbing. To do so with an indictment riddled with constitutional infirmities is worse."
The whole thing winds up asking that the court dismiss this whole deal since Perry being indicted for exercising a basic political right could cause even more problems and caution in a political system that is already moves at the pace of a drugged snail.
If Governor Perry is forced to endure a criminal trial, then the damage has already been done--even if he is ultimately acquitted. The mere knowledge that an indictment can be maintained would itself chill a vast spectrum of constitutionally protected political speech by other political officials.