Bench Memos

Former Texas Governor Rick Perry Vindicated at Last

Outrageous persecution by politicized Travis County D.A.’s office finally halted by Texas’s highest criminal court.

Yesterday, the Texas Court of Criminal Appeals — the highest appellate court in Texas with criminal jurisdiction — dismissed felony charges brought against then-governor Rick Perry in August 2014. “Special prosecutor” Michael McCrum finagled a two-count indictment from a Travis County grand jury on the theory that Perry — the longest-serving governor in Texas history — engaged in illegal “coercion of a public servant” and “abuse of official capacity” when he threatened to, and did, veto $7.5 million in state funding for the Public Integrity Unit of the Travis County District Attorney’s Office, after Travis County D.A. Rosemary Lehmberg refused to resign in the wake of her highly-publicized drunk-driving arrest, during which she became so belligerent that she had to be restrained, and for which she served a jail sentence — while still in office! The Court of Criminal Appeals’ excellent 6-2 decision, written by Presiding Judge Sharon Keller, has deservedly generated widespread news coverage both locally and nationwide (including today’s Wall Street Journal and elsewhere).

The dismissal of the spurious charges came at an enormous cost to Perry: He was forced to spend millions of dollars in attorneys’ fees, the bogus indictment tainted his final term as governor, and the pendency of felony charges made it difficult for Perry to raise money for his ill-fated presidential campaign. This may have been the motivation of the Travis County D.A.’s office, which is notorious for partisan — and legally baseless — witch hunts against Republican elected officials. Lehmberg’s predecessor as district attorney, Ronnie Earle, famously brought vindictive criminal charges against then-state treasurer (and later U.S. senator) Kay Bailey Hutchison and House majority leader Tom DeLay, both of whom were ultimately exonerated.

Perry’s vindication took 18 long months, during which his liberal critics in Texas unfairly derided him as a crook, for exercising his constitutional authority to veto legislation. The Court of Criminal Appeals emphatically rejected prosecutor McCrum’s fanciful legal theories and held — on separation-of-powers grounds — that “No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.” Judge Keller’s majority opinion also ruled that threatening to veto a bill is not a crime: “[P]ublic servants have a First Amendment right to engage in expression, even threats, regarding their official duties.”

Perry’s frivolous prosecution was a shameful episode in Texas history, and perhaps the apogee of the despicable criminalization of political disputes. If the longest-serving governor in Texas history, with access to substantial resources to defend himself, can be hounded for 18 months in Javert-like fashion by a vengeful prosecutor, imagine the awesome power of the state unfairly directed at an ordinary citizen. Criminal law is not a weapon to be deployed for political purposes, and in a society governed by the rule of law it is the proper function of the courts to dismiss such groundless prosecutions.

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