News broke last Friday that Gov. Rick Perry had scored a “partial” victory at the Austin Court of Appeals in his criminal case stemming from his line-item veto of funding for the Public Integrity Unit — housed in the Travis County District Attorney’s office. Friday’s opinion, which the Court noted turned on “legal issues … primarily procedural in nature,” threw out one of the two indictments against the former governor.
The indictments were brought by a special prosecutor in Travis County who alleged that Perry’s veto of the funding, coupled with his calls for disgraced District Attorney Rosemary Lehmberg to resign, amounted to the felonies of “coercion of a public servant” and “abuse of official capacity.”
Both Perry’s prosecutor, Michael McCrum of San Antonio, and Craig McDonald of Texans for Public Justice, the left-wing activist who initially filed the complaints against Perry, were quick to celebrate that the remaining charge still “leaves a criminal indictment hanging over Perry’s head.” McCrum haughtily vowed to move forward with the remaining portion of his case.
But the court’s decision was anything but an endorsement of the viability of the remaining indictment against Perry. Indeed, the Austin Appeals Court ruled that their “hands were tied” from reviewing Perry’s “compelling” challenge that the indictments, “as-applied” to the facts of his case, were unconstitutional.
Still, the Court was willing to apply the “strong medicine” of striking down, on its face, the “coercion of a public servant” statute as overbroad and in violation of the First Amendment. The indictment under that statute was the only one that remotely fit Perry’s actions. Simply put, it was alleged that he used the lawful veto power of his office to try to convince Lehmberg to resign. The Court concluded that the First Amendment protected Perry’s actions.
The Court’s ruling with regard to the “abuse of capacity” statute merely means that Texas continues to have a statute prohibiting legislators from profiting from their offices, or misusing government resources for their personal gain.
But for Perry to be convicted of violating that statute, McCrum will be required to prove a rather absurd case. McCrum’s theory is that the more than $200,000 appropriated by the legislature in 2013 to the Travis County DA’s office came into Perry’s possession, and that Perry “misused” those funds by vetoing them or threatening to veto them. However Perry never “possessed” the money. It was merely a line item in the budget and the State maintained possession of the encumbered funds. Unless McCrum can show that Perry went over to the Comptroller’s office and made a major cash withdrawal, the theory of his case seems based in fantasy, not reason.
The biggest lesson in the Court’s opinion, however, goes far beyond simply Perry’s case. In criminal proceedings, the theory of a prosecutor’s case – no matter how absurd or clearly in violation of the constitution it may be – can’t be challenged until trial, or perhaps even after trial on appeal. This opinion serves as an important reminder that Americans should not assume that criminal defendants are guilty just because they are accused. Often times in political cases, it simply means they are being effective.
Based on Friday’s ruling from the Austin Court of Appeals, victory for former Gov. Perry appears inevitable. However, that ultimate victory may be a long time coming.