Texas Governor Rick Perry has been indicted for coercion and abuse of power in a potentially politically motivated prosecution for actions Perry possibly took out of political motivation to shut down possible politically motivated prosecutions. Got that?
I haven’t studied Texas law or the indictment closely enough yet (read Ross Ramsey’s column for the basics), but Eugene Volokh, who is very careful with these things, makes a good case that this indictment will not fly because the law potentially violates the First Amendment (by being unconstitutionally vague, unconstitutionally overbroad, or both).
Perry joins the list of other politicians prosecuted under controversial or dubious theories, including Tom DeLay, John Edwards, Scott Walker, Don Siegelman, and Ted Stevens. Some go to jail; some don’t. Some get convicted by juries; some don’t. Some have their prosecutions overturned on appeal; some don’t.
The common thread here is the criminalization of politics. As I wrote about DeLay:
Some liberals are no doubt disappointed to hear that a Texas appellate court today, on a 2-1 vote, reversed the conviction of former U.S. House Majority Leader Tom DeLay. They shouldn’t be. There were good reasons to think that DeLay’s prosecution in Texas for violations of state campaign finance law, like the federal prosecutions of former presidential candidate John Edwards and former Alabama Gov. Don Siegelman, involved politically motivated charges brought by overzealous prosecutors.
And I wrote about Edwards:
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.
Thanks to expansive federal law, the threat of criminal liability hangs over all elected officials, federal, state, and local. As professors Rick Pildes and Sam Issacharoff explain in their amicus brief in the Siegelman case, “Federal anticorruption criminal prosecutions of state and local political officials have skyrocketed since the early 1980s. Before 1980, there were never more than 200 such prosecutions in a single year, but since 1985, there have been more than 900 prosecutions in a peak year and an average of more than 600.”
We don’t know yet whether Rick Perry violated the law and whether the law he is accused of violating is constitutional. But don’t be too quick to equate an indictment with actual wrongdoing by the governor, regardless of your political orientation.
This post originally appeared on Election Law Blog.
Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He is at work on a book on campaign finance reform and political equality for Yale University Press.
Politicians like to think that they are immune from criminal prosecution, but if that is the case, what recourse do we have when they do illegal acts?
It’s called corruption. Some can be facetious and call it criminalization of politics or whatever they want. What Perry was doing is not the way the system was meant to work. Free speech has nothing to do with it. Perry was trying to shut down the apparatus that watchdogs politicians and their graft. What was he trying to cover up?
Pretty amazing this article could be written without mention of a politically motivated investigation into a minor land deal being turned into a $100,000,000 impeachment circus over a blowjob. How were you able to reach around the elephant in the room to type on your keyboard? Are you sure you aren’t a PhD. in Contortionism?
EDIT: by the way, for anyone crying tears over how ‘persecuted’ poor Tom DeLay is, let’s be clear on a couple of details.
He was convicted of money laundering (“taking money donated to his political action committee and feeding it into a number of Texas Republican’s campaigns”) in 2010. The 2 judges that overturned the conviction in 2013 based it upon the fiction that checks are not actual money.
You think I’m shitting you?
Read on:
This case has some really odd roots - and those may have a lot to do with why it’s difficult for those outside of the sphere of the Texas public corruption prosecution service to get a handle on.
Why is it that the “only” prosecution authority for state public corruption lies within one, single country attorney’s office? One would expect, looking at other states, either there’d be the same authority in EVERY prosecution office in the state - every county - or that there’d be a single state prosecution agency that’s independent of the state legislature and governor’s office.
I think this must be getting portrayed wrongly in the national press. Instead, I think it has to be the case that EVERY elected county attorney has the power to pursue allegations of public corruption, through investigation followed by grand jury proceedings where warranted followed by trial in the case of grand jury indictment, but that all the other county attorneys have somehow come to be ‘stripped’ of that function. How? I’m thinking by combination of election campaign commitments to reduce budgets by various means, including cutting certain functions that are considered vital in other states, and by various measures taken out at the state level, starting with the legislatures, to eliminate funding for ‘unused’ power.
Otherwise, one would expect the Texas legislatures would have just got rid of the authority by housing it in a single ‘independent’ body. (Note that Governor Perry has been trying to have the authority entirely housed with the state AG – which would seem to destroy the entire idea of an effective watchdog on public corruption. I should think that the Texas state constitution would be the big stumbling block to the legislature doing that.).
If so, that is, if I’m right on how this has come about, then it makes sense that the court-appointed lead prosecutor here is saying he’s “troubled” by what looks like the sort of conduct that’s grist for election campaigns rather than the courts. If what’s happened here is that the state Republican party has effectively found a way to drastically limit but not constitutionally kill the capacity of county attorneys to pursue public corruption, and THEN the party’s governor has acted to kill indirectly a power that cannot be killed off directly, that IS troubling, and may indeed reflect that rarest of criminal prosecution animals: a criminal act or conspiracy to effect an unlawful purpose by superficially or arguably lawful means.
This article said nothing.