The Rick Perry Indictment Conundrum

by Benjamin Studebaker

Earlier today, I was asked for my opinion on the Rick Perry indictment. Texas Governor Rick Perry was indicted for abusing official capacity and coercing a public servant. Is there anything to the charges?

The indictment concerns Perry’s treatment of democrat Rosemary Lehmberg, the district attorney for Travis County, Texas.

Travis Country includes Austin, the capital, and consequently the district attorney’s office in Travis County operates a Public Integrity Unit. This unit handles tax fraud and government corruption in the state government. The city of Austin is quite left-leaning as Texan cities go, so the district attorney for Travis County is almost always a democrat. Consequently the Public Integrity Unit in Texas is very nearly always run by democrats, to the enduring chagrin of Texas republicans. Republicans mistrust the Public Integrity Unit and suspect it of political motivations.

In 2013, Lehmberg was arrested for drunk driving. Perry (and many other Texans) called for Lehmberg’s resignation. Lehmberg’s defenders claimed that Lehmberg should not resign because, despite this misstep, she is a really good lawyer. Perry and the other Texas republicans had a strong interest in getting Lehmberg to resign, because if she resigned they could appoint a republican district attorney to finish off her term.

As it happened, Lehmberg refused to resign. This is where it gets interesting. In response, Perry threatened to veto $7.5 million in funding for the Public Integrity Unit unless Lehmberg resigned. When Lehmberg once again refused to resign, Perry went through with the veto, saying:

Despite the otherwise good work of the Public Integrity Unit’s employees, I cannot in good conscience support continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.

In sum, the indictment accuses Perry of using Lehmberg’s drunk driving arrest as a pretext to use his power as governor to attempt to coerce her into resigning. Specifically, the law in question says:

A person commits an offense if by means of coercion he influences or attempts to influence a public servant in a specific exercise of his official power 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.

According to the state of Texas, “coercion” means:

a threat, however communicated to:

(A) to commit an offense;

(B) to inflict bodily injury in the future on the person threatened or another;

(C) to accuse a person of any offense;

(D) to expose a person to hatred, contempt, or ridicule;

(E) to harm the credit or business repute of any person; or

(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

If Perry coerced Lehmberg, it was via F–he took or withheld action as a public servant. Can government officials refuse to approve funding for things as a bargaining chip to extract concessions from one another? In particular, can a governor use his veto for that purpose?

We certainly see something like this all the time in House of Cards, and it’s easy to see how this might happen within a legislature. Say we have two congressman–Frank, who is part of his party’s congressional leadership, and Bob, who is a rank and file member of the party. Frank wants to get Bob to vote the party line on a piece of legislation that funds a government program. Bob might demand that Frank include in the legislation some kind of inducement (e.g. funding for a job-creating project in Bob’s district). If Frank refuses to include this inducement, Bob may threaten to refuse to vote for the bill. Frank might then respond by telling Bob that if he doesn’t vote for the bill as is, the party’s national committee will refuse to support him in the upcoming election. In this case, both Frank and Bob have threatened to block funding for something if they do not get what they want from one another.

But notably, in the above example, neither Frank nor Bob make a direct threat against the other’s office. Yes, Frank threatens to withdraw party support for Bob’s campaign, but this is not equivalent to demanding Bob’s resignation. Bob can still run for re-election anyway, and he might win.

Here’s a worst case scenario. Let’s say that the democrats have a super-majority in the senate and the republicans have a majority in the house. The democratic majority leader (let’s call him Frank again) threatens to refuse to fund federal government programs in republican states unless all the republicans in the house resign and the governors of those states appoint democrats to replace them. Can Frank do that? In practice, if Frank did, he would likely destroy the credibility of his party, but is it legal for Frank to attempt this?

Perry’s threat to de-fund Lehmberg’s Public Integrity Unit is like a very small scale version of that.  But in Perry’s case, it is further complicated by the fact that Perry is not a legislator, he is the governor, and he is using his veto power, which the state constitution grants him. The state constitution places no explicit limits on the use of the veto.

Are there any constraints on what a governor or president can do with a veto? Let’s say we have a governor (let’s call this one Caligula) who threatens to veto all bills the legislature passes unless every member of the legislature turns over their campaign war chests to him for use in his next campaign? Caligula can’t do that. That’s definitely a crime–that’s soliciting bribes.

So there are some limits on how a governor can use his veto power. Does this fall outside those limits? In the end, I don’t think so. Governors and presidents threaten to veto legislation all the time unless legislators make amendments to their bills. When the veto is threatened, it is an attempt to coerce legislators into modifying legislation. We don’t criminalize it, and if we did nearly every veto and vote would be legally dubious. I suspect that this law has more to do with using public policy to extract non-political concessions than it does with the politics as usual horsetrading we often see. Let’s make a theory. For a public official to use his office for illegal coercion, one or both of the following conditions must hold:

  1. The target of the coercion is not another public official, but a voter, a family member, a friend, or someone else that the politician knows personally.
  2. The coercion is not about public policy, but about personal gain for the politician.

Let’s put it in a helpful 2×2 chart:

When is an official’s coercive behavior criminal? The official coerces another public official The official coerces a private citizen
The official coerces to influence public policy Politics as Usual (when a governor threatens to veto a bill unless it is revised or a legislator refuses to vote for a bill unless his district gets pork) Crime (when a public official punishes a community for the way it votes, e.g. Chris Christie and the bridge)
The official coerces for private gain Crime (when a governor forces another public official to pay a non-political bribe, e.g. money, sex, etc.) Crime (when a governor forces a private citizen to pay a non-political bribe, e.g. money, sex, etc.)

On this chart, based on what we know now, Perry’s coercion falls under “politics as usual”. We might not like it, we might feel less inclined to support Perry in future because of it, but we can’t imprison him for it.

All this said, much of the evidence has not yet been made public. It’s possible that Perry could have said or done something that we do not yet know anything about. If it turns out that behind closed doors Perry threatened to de-fund the Public Integrity Unit unless someone gave him a blowjob…well, needless to say, that would be illegal.