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August 16, 2014

Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms

I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges.  But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges.  This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment): 

Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.

Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.

The charges set off a political earthquake in the capital city.  Democrats said the indictment underscores Perry’s insider dealing and he should step down.  Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.

The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.

Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.

In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...

The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”

State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....

A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April.  McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....

McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said.  Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”

Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.

Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew.  I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).

August 16, 2014 at 02:55 PM | Permalink


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I have never said a nice thing about Rick Perry in my life but the Democrats have seriously overplayed their hand. To the extant that the charges are even true that only proves the laws are unconstitutional. The executive has a right to wield his veto pen however he wants and most importantly for whatever reason he wants. The idea that there are checks on a core executive power not only seriously undermines the separation of powers it also seriously undermines the electoral process. Frankly, it is the prosecutor who is abusing his discretion here, not the Governor.

Posted by: Daniel | Aug 16, 2014 3:16:40 PM

My estimation of Gov. Perry falls somewhere between mass murderers and people who loot stores during natural disasters, but even I am exasperated by this blatantly political prosecution. Vetoing laws is part of being a governor. Perry did not veto the funding of the Public Integrity Unit because he was getting bribed to do so. Instead, his veto was a political decision based on a lack of confidence in an office that included a prosecutor who refused to resign after committing a crime. I disagree with his decision, but he is the duly elected governor of the State of Texas, and you don't get to put a governor in prison for vetoing laws, any more than you impeach the President for exercising his discretion over which laws he chooses to prosecute.

Posted by: C.E. | Aug 16, 2014 5:35:25 PM

the gov and his pay to play friends got caught selling seats on a state slush fund cancer research agency. he wanted the office lead gone so he could appoint his own hack and squash the ongoing investigation. his bragging has earned him an indictment. this is way more serious then a political case.

Posted by: rascalofearth | Aug 16, 2014 8:27:24 PM

End all prosecutorial, judge, jury, and legislative immunities. These are total incompetents who need to be fully deterred from their misconduct. Let these imbeciles buy professional liability coverage. The tax payer should not be liable for their carelessness. If no insurer will provide coverage, let the tax payer pay for re-electing the imbeciles.

By formal logic immunity fully justifies violent retaliation against these tortfeasors. The contrapositive of a true assertion is always also true.

Tort liability is a substitute for revenge violence after an injury.

If that is true, then this must be true.

Tort immunity justifies revenge violence after an injury.

It is also true that immunity grows the entire enterprise, not just the defendant. And, liability shrnksthe entire industry, not just the defendant. That means that anyone seeking smaller government should support the reversal of Hans v. Louisiana, 134 U.S. 1 (1890), extending state sovereign immunity to the citizens inside the state.

The truism that "government does nothing well" has no inevitability. The incompetence comes from immunity.

Posted by: Supremacy Claus | Aug 17, 2014 8:26:04 AM

Bill Otis should have disclosed that prosecutors across all jurisdictions are not civil service. They are at will employees. That means the political hack supervising them can fire them for any reason, even an unlawful reason. So they have no discretion to go after the constituency of the incumbent.

Posted by: Supremacy Claus | Aug 17, 2014 9:06:33 AM

Are Texas governors not benefitting from sovereign immunity?

Posted by: visitor | Aug 17, 2014 10:48:10 AM

Dear Visitor: The Doctrine of Sovereign Immunity only protects the government and its elected and appointed officials and employees from civil lawsuits. Sovereign immunity is not a defense to indictment and criminal prosecution. There is a famous U.S. Supreme Court decision that makes this point very clearly. A Circuit Judge in Tennessee was criminally prosecuted for getting women who were parties to civil cases (mostly divorces, child custody and visitation) to come back to his Chambers and have sex with him, in return for favorable outcomes in their cases. He actually had the audacity to assert "judicial immunity" to the criminal prosecution. The Justices on the U.S. Supreme Court ruled against him 9 to 0! I think there is a serious message to be learned, when you are a state court Judge, and the highest court in America rules against you unanimously.

Posted by: Jim Gormley | Aug 17, 2014 11:11:49 AM

I see Doug Berman engages with Bill Otis and it is ... as complicated ... as it is here.

"Not once was I asked to participate in a case I had even slight reason to suspect was politically motivated. Apparently, times have changed."

It's nice he noted how things were good under both political party control, but come on. Times didn't change THAT much. His selective focus is annoying.

Anyway, I'm no fan of Rick Perry & doubt he handled the situation in an ideal way (e.g., did he offer to replace her with a Democrat? that would have been the best solution ... but we are talking Texas politics here ... and Rick Perry). But, it sounds to me like a lousy indictment if there was any real discretion not to do it. Esp. since he leaving office soon.

Still, IF the indictment is not a violation of Perry's veto power, it is somewhat understandable given the whole situation was tainted by politics. It also raises the question of the sacred nature of broad executive discretion over vetoes, pardons and the like. If he used the veto here to pressure someone to resign and did not have the power to do so, can the veto be illegitimate? Surely a question for the courts. I also really don't know Texas law. It is different is various ways than NY law for sure.

But, I have seen some Perry opponents rather wary if not fully opposed to the prosecution, underlining that people can have some sense of fairness even involving people they don't like. That's good.

Posted by: Joe | Aug 17, 2014 11:33:41 AM

Glad to see the fight is on in ma home state, agin. Rick will win, then after he looses the presidensity, veto statehood and we'll be on our own like we should a bin all long.

Posted by: Al Ammo | Aug 17, 2014 1:37:08 PM

The special prosecutor ought to be imprisoned for life.

Posted by: federalist | Aug 17, 2014 4:44:18 PM

Do you really favor, federalist, imprisoning prosecutors for life for certain misdeeds? Supremacy Claus will be so excited to count you as a convert.

Posted by: Doug B. | Aug 17, 2014 5:29:34 PM

Professor Berman,

Not speaking for either Federalist or SC of course but I would have no problem with executing prosecutors for pursuing charges that they know (or should know) are either unsupported by the facts or are brought under an unconstitutional law. Prosecutors wield enormous power and there should be equally enormous incentives to use that power responsibly.

Posted by: Soronel Haetir | Aug 17, 2014 7:08:04 PM

Doug B., I wouldn't have a problem with it here.

Posted by: federalist | Aug 17, 2014 8:58:09 PM

Many lawyers have misunderstood my calling for the arrest, brief trial, and execution of the lawyer hierarchy. I am calling for the beginning of the enforcement of 18 U.S. Code § 2381. There are about 1.5 million lawyers, the hierarchy numbers around 20,000 internal traitors. They make 99% of policy in the three branches of government.

This prosecutor is abusing his office, and should be forced by the Bar to take lawyer ethics course. If he repeats his mistake, he should lose his job.

For example, lawyer traitors embedded in our military have cancelled orders up to four star generals. They are obeying orders. I would like to find the name of the person who embedded them, and that is a member of the hierarchy. I would like to know the name of the lawyer who prevented our warriors from executing all the Iraqis collected in our prisons, where they networked and planned the march through Iraq. That Iraqi hierarchy got professional courtesy from our hierarchy. This lawyer traitor prosecuted our warriors for pranking and degrading these prisoners.

Once this horrible hierarchy is gone, the profession can be modernized rapidly, shrunk. The income can quadruple, and the public esteem will have gone through the roof. Then we kill the criminals, ending 99% of crime. The economy shoots like a rocket to 10% year over year growth. All social pathologies evaporate, including bastardy, poor school performance. Homelessness (forcing mentally ill and addicted people who choose that life to go into institutions). Name a social ill, it will be gone through coercion of the law instead of imposed through coercion of the law.

Posted by: Supremacy Claus | Aug 17, 2014 10:09:02 PM

Yes, Supremacy Claus, the universe would be a much better place if you were God.

Posted by: Daniel | Aug 17, 2014 10:38:36 PM

SH: You are not a lawyer. So I can appeal to your intelligence. What utilitarian analysis would result in the execution of this prosecutor?

In the case of 123D, we are incapacitating a violent criminal who committed thousands of violent crimes to date, and will commit thousands more. The value of his execution may approach $hundreds of millions in prevention of real estate prices losses alone, not counting the value of the human suffering he will cause, the value of the health care costs he will generate for himself and for his victims, the costs of massive government services to him and to his family. Multiple that by the value of his not having any bastard spawns to follow in his footsteps, and the value goes into the 9 figures.

Assume the value of human life to be $6 million.

Posted by: Supremacy Claus | Aug 17, 2014 11:55:05 PM

Daniel. No. If utilitarian analysis were God. Each of the lawyer traitors generates $billions in losses a year, in actual losses and in unrealized gains.

Posted by: Supremacy Claus | Aug 17, 2014 11:58:23 PM

Daniel. I am not trying to buy you off.

But how would like no more paper work, half the taxes you are paying, and double the salary you are making, as we get your money back from the insurance companies that got it through lawyer laws and regulations? The lawyer traitor transferred $billions from your profession to the coffers of insurance companies.

Posted by: Supremacy Claus | Aug 18, 2014 12:10:44 AM


The benefit is in keeping government meet before the citizenry. Unlike you, I do accept the validity of general deterrence. Just like with other economic incentives if you increase the price of something you get less of it. I want prosecutors to be very sure that the charges they bring are well-founded.

Posted by: Soronel Haetir | Aug 18, 2014 2:18:40 AM

I also find general deterrence to exist. For example, a tort claim against a defendant shrinks the entire industry. So I support the end of all governmental immunities in torts. I also support it as an alternative to violence.

What I do not support is the argument of general deterrence in an individual death penalty trial. It violates Fifth Amendment due process right to a fair trial to punish the defendant to scare a person he has never met, to prevent a speculative future crime. That is an argument I have given to the defense bar so that I am credited with fairness and accuracy, not just bias and single mindedness. I have also proposed that the date of an execution is cruel. I have provided the strongest anti-death penalty argument ever proposed, the Werther Effect, where imitatorskill themselves or others after news of an execution. So if you found an execution results in the deaths of a dozen innocent people, I would switch sides and oppose it.

In fairness to me, I am the one who introduced the dose-response curve, an effect likely applicable to all remedies. If a dose is too low, remedy does not work, e.g. we need 1000's of executions a year, not dozens for it to provide general deterrent. If a dose is too high, the remedy becomes toxic, as in changing the character of our nation.

I think, the prosecutor in this case should be disciplined by the Bar for using his office for political vendetta. The McDade Amendment expressly made federal prosecutors subject to state disciplinary counsel oversight. There are express duties in the Rules of Conduct to not misuse the prosecution office for political purposes, and to not use actions that harass people.

Posted by: Supremacy Claus | Aug 18, 2014 5:20:02 AM

Kill all the lawyers - but, just to be safe - start with the prosecutors.

Posted by: Delores | Aug 18, 2014 10:05:32 AM


Posted by: Andy B. | Aug 18, 2014 10:10:59 AM


Widespread Support for Sending Politicians to Prison for Ninety-Nine Years

AUSTIN—Last week’s indictment of Texas Governor Rick Perry has sparked widespread bipartisan support for the concept of sending politicians to prison for ninety-nine years.

While Americans are divided about the merits of the specific charges levelled against Perry, there is near-unanimous agreement that imprisoning politicians for ninety-nine years is an idea worth exploring further, a poll released on Monday indicates.

According to the poll, eighty-seven per cent of voters from both parties agreed that sending politicians to prison for such a lengthy period would “solve a lot of problems” and “make the country safer.”

Additionally, when asked to name one politician they would like to see incarcerated for ninety-nine years, voters easily rattled off a dozen or more such candidates, with some voters naming as many as fifty.

Finally, when informed that imprisoning politicians for ninety-nine years might lead to overcrowding that would require the construction of costly new prisons, eighty-three per cent agreed with the statement, “Money is no object.”

Posted by: Andy B. | Aug 18, 2014 10:13:57 AM

The issue isn't the governor's veto right, it is his exercise of the veto for the specific purpose of quashing an investigation by an public integrity unit that was about to expose him and his cronies. Obviously the detailed facts that were presented to the members of the grand jury strongly suggested that the quashing was the true motivation, as opposed to concern about a DWI. (And I mean, come on, does anyone believe that someone's DWI was ever a real concern.)

Insider trading is analogous. It is not a crime to buy shares in a public company, but it is a crime to do so based on non-public information provided in breach of a duty of confidentiality.

Similarly it is not illegal for a governor to veto funding for something, but is illegal for governor to veto funding for a public integrity unit with the specific intent of quashing an incipient investigation of himself and his cronies.

Posted by: James | Aug 19, 2014 3:36:41 AM

"but is illegal for governor to veto funding for a public integrity unit with the specific intent of quashing an incipient investigation of himself and his cronies."

Utter nonsense. The difference between an insider trader and a governor is that one is elected by the people as an instrument of their sovereign will and the other is not. In this respect the veto power is no different than the pardon power. The executive can pardon whoever he wants for whatever reason he wants. The check on any perceived abuses of power is not the judiciary but the electorate.

The opposite of the unitary is not the oligarchy, it is the plurality.

Posted by: Daniel | Aug 19, 2014 3:04:07 PM

The will of the electorate? You must be kidding.

Undermining the will of the electorate was exactly what Perry was trying to do by forcing out the locally elected head of the Travis county public integrity unit.

Posted by: James | Aug 20, 2014 2:43:35 AM

Yes, I agree James. He was. And he that Constitutional power. A power given to him by the electorate. It is not his personal fault--which is what a crime is--if the electorate is divided against itself. That's the people's problem, not his.

Posted by: Daniel | Aug 20, 2014 1:26:22 PM

Sorry, that should read "and he HAS that constitutional power".

The fact that a Constitutional power was wielded in a way one doesn't like or for reasons one doesn't like isn't a crime.

Posted by: Daniel | Aug 20, 2014 1:28:14 PM

"The executive can pardon whoever he wants for whatever reason he wants."
-- Well, not if there is a bribe. Just like a congressman has the power to vote for whatever "he wants for whatever reason he wants", so long as he's not selling his vote. Coercion is "do what I say, or else". "Quit or I'll fire you" is coercion, but there is no personal gain. It's not bribery. This is not the spirit of the laws that Perry is said to have broken.

The governor does not have the right to: "Fire other elected officials, and/or democrats he does not like". He can't just eliminate their funding. This is a nitpicky lawsuit. I don't think he should go to jail. I do think that he definitely broke the law, and the mandatory minimums here are 2 + 5 years = 7 years in prison. There is no dispute of the facts of the case. (Outside observer)

Posted by: Rich | Aug 23, 2014 1:15:15 PM

The coercion part isn't for the threatening part. It's for sending staff to her office, after the veto failed to get her to step down, with a job offer if she would step down. His staff was questioned and I would guess that someone outed Mr Perry or that charge would not be there.

There is a reason that several scientists all walked out together from CPRIT... because they did not want to be associated with taxpayer funds going to those who finance Rick Perry's campaign instead of to cancer research.

AND... this prosecutor was asked to do this by the judge. Not because he was on some mission to get Rick Perry.

FYI... Rick Perry openly threatened her by using his power to veto. AND he acted on that threat. That is an abuse of official capacity. No matter how you look at it.

Posted by: LeeLee | Sep 12, 2014 12:02:26 PM

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