The views of the Perry prosecution have sorted out quickly into a majority sharply questioning its merit, and a minority insisting that judgment be reserved until the facts are known.  The prosecutor has not been heard from, other than via a two-page indictment short on detail and his avowal that the case involved a non-partisan application of the law to the facts.

It is difficult to tell how much the barebones recitals of the indictment have produced the chorus against this case, but it is interesting—especially in light of the document’s sketchiness—to follow the lines of argument and to separate them out.  We have more to go on now that the Perry legal team has filed their Application for a Pretrial Writ of Habeas Corpus.

And as the arguments continue, it is worth noting how differently commentators have reacted to another prosecutorial challenge, in New York, in connection with a Governor’s claimed exercise of his official authority.  The larger political community has risen to the defense of the Governor of Texas but seems to have accepted the bind in which Governor of New York  has found himself, in his relationship to the Moreland Commission he created and then disbanded.

On Vetoes and Other Facts

The analysis of the Perry indictment has moved back and forth, or straddled the line, between two distinct questions. The first is whether the statute under which the indictment was brought suffers from vagueness and overbreadth problems.  On this point, Eugene Volokh has made a compelling case. Another, related but not identical, is whether the fatal problem with this prosecution is the prosecutors’ attempt to “criminalize” the exercise of the gubernatorial veto. This last question has been cast as one implicating separation of powers issues.

Of course, the statute could be constitutionally defective, and a prosecution is conceivable that would draw in questions about a governor’s use of his constitutional veto authority. See, e.g., United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979).  In Mandel, the Court held that the government could consider evidence that a governor had colluded in the override of his veto of legislation beneficial to friends and allies with whom he shared financial interests.  It rejected an objection that the inquiry into the veto involved an impermissible examination of legislative motive:

In political corruption cases, courts should be particularly reluctant to withhold from the jury relevant evidence that sheds light on the defendants’ motives and intentions. See United States v. Isaacs, 493 F.2d 1124, 1161-62 (7th Cir. 1974). The interests of justice are not served by impeding prosecutions against public officials simply because the evidence available to the government is necessarily unusual. In view of the special problems attending the proof and interpretation of political maneuvers in a collegial legislative body, the jury was entitled to hear and assess the senators’ complete knowledge of the events in which they participated when they voted on the veto.

591 F.2d at 1385.

The use of the veto, the Court stressed, was a “central part” of the prosecution, and the Government could probe the governor’s intentions in encouraging or declining to resist the veto override. Id at 1367, 1370.

The Perry  indictment has been constructed in such a way that the veto and the threat of the veto appear still more central—not so as much evidence, as in Mandel, but the very acts by which the law is criminally violated.  Supporters of the prosecution have recognized the danger here and cautioned against this reading.  One Texas Observer commentator has argued for the suspension of judgment until the facts are known, insisting that the case “isnot premised—as has been repeatedly misreported—on the veto itself.”  This seems to be the controlling question: just the veto, or more facts?

In their Motion to Dismiss, Perry’s lawyers insist that the case is only about the veto, and they have taken a strong  position on the immunity a veto, or the threat or explanation of a veto, should enjoy from judicial scrutiny.  They have argued that there are “no limits” on the power to veto, which a Texas Governor may exercise with “unbounded discretion,” and that the veto is an “absolute constitutional right and duty” and an “absolute, untrammeled right.” Pretrial Writ of Habeas Corpus (No. D1DC14-100139) at 4, 8, 10.  But they also acknowledge that, as in Mandel, these broad protections may give way to evidence of a criminal scheme—something like “bribery or demonstrable corruption”—and would justify the judicial inquiry that in this case they contend is barred.  Id. at 12.  But there has been no such allegation, they argue, and the case presents a political question or “dispute” that the courts should not be involved in.  Id. at 11.

Just as the indictment, containing no such allegations, has largely shaped first impressions, the facts that may still emerge may reinforce the prevailing belief that something is amiss or prompt reconsideration. It will soon become clear whether this is the Perry prosecutor’s hope—that he can establish that this case is not really “about” the veto but about plain, old political corruption, of the kind believed to be all too common in New York State.  Members of the grand jury seem to believe, as he evidently does, that he can carry this burden.  Or he will fall back on the case largely as the Perry legal team has construed it—it will be “about the veto,” and it will not be easy.

Texas v. New York

An additional point of interest is the difference in the elite responses to the plights of Andrew Cuomo and Rick Perry. Each of them are chief executives claiming that their constitutional prerogatives have been threatened by the actions of criminal authorities. In Cuomo’s case, while he has become more muted on this point, he originally questioned how he could be prosecuted for communications with a Commission and for causing it to disband, if he himself had created it pursuant to his executive authority. Perry, of course, is being defended with a similar appeal to institutional prerogatives.

Both Governors are asking for attention to be paid to the consequences of these intrusions on their authority. Perry and his supporters are making much of the dangers of “criminalizing politics,” which in this instance could mean putting governors at risk of prosecution for carrying out their constitutional right to veto legislation (or to threaten to do so). The Cuomo argument would center on the risk to a governor from reconsidering modifying another decision made within his executive authority—the establishment of a commission by executive order. One result could be a disincentive to the exercise of this authority at all: for example, in dampening executive interest in more commissions. In each case, the issue is whether the executives would be deterred by the specter of criminal investigation from exercising the constitutional powers of their offices.

The New York Governor has gotten little sympathy for this type of  argument, and the Texas Governor quite a substantial amount.  The two cases and the issues they present are not the same, to be sure, and yet it is always worth asking about the different factors that bear on the formation of elite opinion.

One such factor may be suspicions about an officeholder’s motives in setting up a Commission and then disbanding it when it appeared to some that it was performing well and had more work to do.  And this suspicion is heightened against a background of concerns about endemic corruption in New York State politics.  Governor Perry is helped by the assumption that Texas politics is brass-knuckled and partisan, but with the DeLay case in the background, there is also a tendency, rightly or wrongly, to believe that this partisanship has seeped into the criminal justice system.  In one state, the expectation is nasty politics, which, it is believed, should be kept out of the criminal justice system; and in the other, the fear is corrupt politics and the response is ardent support for aggressive criminal enforcement.

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