The Magazine

A Not So Grand Jury

Sep 1, 2014, Vol. 19, No. 47 • By TERRY EASTLAND
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On August 15, a grand jury in Travis County, Texas, shocked the Lone Star State when it handed up an indictment of Governor Rick Perry, a likely candidate for the GOP presidential nomination in 2016. According to the grand jury, Perry abused his power in 2013 when he attempted to get the county’s elected district attorney, Rosemary Lehmberg, to resign by threatening to terminate an appropriation for her office.

Perry

Newscom

What exactly did Perry do to win the attention of a special prosecutor and grand jury? On April 12, 2013, district attorney Lehmberg, a Democrat, was arrested for drunk driving and engaged in shameful behavior while being booked (the remarkable footage is on YouTube). In a plea agreement, Lehmberg conceded guilt and received a 45-day jail sentence. Perry (and other state leaders) said she should resign on account of the scandalous episode. That June, Perry upped the ante by saying that if she did not resign he would use his line-item veto authority to cut from the biennium budget $7.5 million that was designated to fund the unit within her office that investigates public corruption statewide. Lehmberg refused to resign, and Perry vetoed the appropriation.

According to the grand jury, Perry’s actions violate two state laws: one concerning “abuse of official capacity,” the other “coercion of a public servant.” Well, let’s see.

Under the abuse of office statute, “a public servant commits an offense”—a first-degree felony, punishable up to 99 years in prison—“if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly .  .  . misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office of employment.”

And under the coercion statute, “a person commits an offense”—a third-degree felony, punishable up to 10 years in prison—“if by means of coercion he .  .  . influences or attempts to influence a public servant in a specific exercise of his official duty or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty.”

The indictment joins the two statutes in applying them to Perry. The $7.5 million for the public corruption unit is the “government property” that “came” into Perry’s “possession by virtue of” his being governor and thus having a role in the legislative process, including the making of budgets (and thus of exercising the item-veto). Perry “misused” that property by first threatening to veto and then actually vetoing the appropriation for it in an attempt to influence a public servant, Lehmberg, in the performance of her “official duty.” There are problems here.

To be literal about it, the “government property” never “came” into Perry’s or anyone else’s “custody”—after all, Perry vetoed the appropriation. If this “government property”—this money—was in anyone’s “custody,” UCLA law professor and blogger Eugene Volokh has mused, it was in the hands of the Texas Comptroller of Public Accounts. Further, Perry wanted to get Lehmberg to quit her job, to leave. His was not an effort to get her to take some action in a particular investigation or prosecution—the circumstance the coercion statute clearly has in mind.

Significantly, Perry’s threat was a quite public one, made unawares that anyone might think it a crime, and it was certainly an attempt to influence Lehmberg to step down. Yet under the strange theory of the indictment, Perry could have vetoed the appropriation without ever threatening such action, and no grand jury would have been impaneled, since there would have been no “attempt to influence a public servant.” Thus, it is the threat, the attempt to influence, that matters and is said to be criminal in this indictment.

It apparently does not matter to the grand jury that the attempt to influence involves the use of a power vested in the governor the exercise of which does not have to be justified: The Texas chief executive may veto for any reason, or none at all.

Students of the veto power know that it is never quietly exercised, that it is always preceded by “threats” of varying degrees of intensity intended to achieve some change before a bill is passed and presented to the executive for his signature. Nor is it uncommon to see efforts to defund offices take place when budgets are made. Even so, it is not necessary to agree with Perry’s veto of the allocation for the public corruption unit to see that if the grand jury’s understanding of the law prevails, the “official capacity” of the Texas governor in the hurly burly of ordinary politics in the state capital will be narrowed considerably.

The indictment of Rick Perry does not follow the usual template in public corruption cases. That is, it is not a “prejudicial” indictment that sets forth at length a story of criminality by some especially venal public servant. Rather, the indictment is short, just two pages, spare on facts, and treats the governor with respect.

No one knows what else the special prosecutor, Michael McCrum, might have found. He says he conducted more than 40 interviews before presenting his case, and it could be that he has other information that better fits the laws he’s working with. One grand juror (a prejudicial one, you think?) told the Houston Chronicle last week that the still-favorable impression of Perry across the state would change “if and when the facts come out.”

Based on what is actually known so far, however, Texas v. Perry is a troubling case from the standpoint of the separation of powers and of a politics in which freedom of speech is vigorously protected within government and the citizenry. It is a case that should have been declined by the prosecutor, just as it now should be tossed by the judge handling the case, if only because of the inapposite nature of the laws on which it rests.

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