By Ken Starr, From Texas Lawyer
Presidents of both parties routinely threaten to veto spending bills that they believe to be a poor use of the public’s money. In a recent State of the Union Address, for example, President Obama threatened to veto any bill with earmarks, no matter how noble the purported cause. Reviewing bills, then signing or vetoing them, is the president’s job.
That’s also the job of the governor of Texas. Yet the now-famous prosecution of former Governor Rick Perry lives on, even after the state Court of Appeals at Austin recently struck down one of the two criminal charges against him. What was then-Governor Perry’s purported “crime”? Vetoing a portion of the appropriation to the Travis County District Attorney’s office. In our representative democracy, that is emphatically not a crime.
This protracted kerfuffle arose, ironically, out of the legal woes of the District Attorney herself. She was pulled over and arrested at nearly three times the legal limit for intoxication. She was convicted and sentenced to 45 days in jail.
Around the same time, Governor Perry faced a decision about whether to entrust to that same district attorney millions of dollars of state funding for a “public integrity” unit. If she refused to resign, the Governor promised, he would veto the appropriation. She refused; he vetoed. The money, as it was collected from taxpayers, remained untouched in the state treasury.
The special prosecutor wanted to imprison Governor Perry for pressuring the district attorney to resign. This is profoundly misguided. The First Amendment forbids punishing anyone, including elected officials, for speaking out about political issues. That constitutional protection includes trying to persuade other elected officials to take certain actions. Last month, the court of appeals agreed, tossing out the charge alleging that Perry had violated the state law against “coercion of a public servant.”
Unfortunately, the appellate court failed to dismiss the second charge—that Governor Perry was guilty of “abuse of official capacity.” The special prosecutor alleged that Perry “misused” government “property” by vetoing the appropriation, and that the value of this “property” was the amount of money appropriated. Since that appropriation exceeded $200,000, the special prosecutor contended that the Governor’s veto constituted a felony punishable by 5 to 99 years’ imprisonment.
This is utterly farfetched. Indeed, the appellate court did not deny that this unprecedented theory is preposterous. Nonetheless, the court held that it lacked power to rule on dismissing the spurious charge short of a full-blown criminal trial.
But the charge is groundless, and the appellate court did have the power to say so. To violate the statute, an official must have had “custody or possession” of the property. A public official who rents out a state vehicle and pockets the cash would obviously qualify. Other examples are easy to imagine. But, when they veto a bill, governors don’t have “custody” of any property. The money stays in the treasury.
Unfortunately, the court of appeals believed that it could not rule on this basic, common-sense point. It thought that Governor Perry’s challenges were not “cognizable” until after a trial. The court concluded that only “facial” challenges to a statute could be dismissed, but that Governor Perry’s challenge to the “abuse of capacity” charge was merely “as applied” to this indictment alone.
While the opinion was written by an outstanding jurist serving on an excellent court, this decision was wrong. Separation of powers principles prevent one branch of government from interfering with the other branches’ core duties. The veto is a core function of the executive branch. If a governor took a bribe for a veto (or anything else), taking money would obviously constitute a crime. However, simply vetoing a bill for political reasons is something that the courts have no power to scrutinize, including through a criminal trial.
If Governor Perry has the right not to stand trial, then how could that basic right be vindicated after trial? This is no different from someone who raises a claim of double jeopardy. If you’ve already been tried, then you have the constitutional right not to be put on trial again. If you were required to wait until after a second trial to assert double-jeopardy protection, then that right would have been destroyed.
That is why a double jeopardy claim can be brought before trial, even though it is “as applied” to one defendant. This bedrock principle constitutes a constitutional bar to the power of the courts to proceed. The separation of powers in the Texas Constitution should have the very same effect in Governor Perry’s case.
What has happened to the former Governor is not only unfair, it is a constitutional travesty. Our elected officials should be free to do their jobs, and the people should punish them at the ballot box for unwise or unpopular political choices. The criminalization of routine political actions, however, upsets the balance of power between a free people and those they choose to exercise public authority. Governor Perry should go free—and be exonerated now.
IMAGE: Judge Ken Starr is president and chancellor of Baylor University in Waco.
Robert Rogers
For more on this story go to: http://www.texaslawyer.com/id=1202734564434/Former-Clinton-Prosecutor-Ken-Starr-Why-is-Rick-Perrys-Case-Still-Here-#ixzz3ihlsjJDj