This story about a group of big-name lawyers filing a brief in support of Rick Perry’s motion to dismiss the charges against him ran a week ago. I put off writing about it because it looked like we might get a ruling on the motions from Judge Bert Richardson, but since he’s still thinking about it I figured I’d go ahead and finish what I’d started to write. I have what you might call a stylistic beef with the story as well as a substantive disagreement with the argument these gentlemen have put forward.
This corndog will not be silenced
A bipartisan group of lawyers and legal scholars is asking a judge to dismiss a criminal indictment against Gov. Rick Perry, arguing their objections to the case transcend politics.
“We have no personal or political stake in this case,” said James Ho, a Dallas lawyer who helped organize an amicus brief filed Monday morning. “We come from different political backgrounds. But Republican or Democrat, conservative or liberal, what unites us is our commitment to the Constitution, and our belief that this prosecution is profoundly mistaken.”
[…]
The brief filed Monday concludes the “prosecution must end immediately,” calling it “disturbing” that Perry could be indicted for actions he took during a political dispute. The groups cite a few examples of politicians using threats to work their will without facing the same consequences Perry has, most recently President Barack Obama telling congressional Republicans he’d issue an executive order on immigration reform if they didn’t act.
The 24-page brief has the backing of legal experts with Democratic backgrounds such as Jeff Blackburn, founder of the Texas Innocence Project; Paul Coggins, former U.S. attorney in Dallas; and Harvard Law professor Alan Dershowitz, whose skeptical remarks shortly after the indictment were used by Perry to argue even his political opponents think the case is bogus. Republicans on the brief include former U.S. solicitors general Ted Olson and Ken Starr, who now leads Baylor University.
See Texas Politics for more. The stylistic grievance I have is with the description of this group as “bipartisan”, since the term is being used to plant the idea that “see, even Democrats think the case against Rick Perry is bogus”. Look at the names highlighted in the story. One one side, you have three high profile professional Republicans – Ted Olson and Kenneth Starr, both former Solicitors General in Republican administrations, plus James Ho, a former Solicitor General for Texas under Rick Perry. On the “Democratic” side, you have one former US Attorney who – with all due respect – no one who doesn’t already know him has heard of, and two high-profile people that aren’t Democrats in a meaningful sense. Neither Alan Dershowitz now Jeff Blackburn has worked professionally for a Democratic administration or organization as far as I could tell by looking at their bios online. Dershowitz is an outspoken and often controversial academic whose stated beliefs are iconoclastic and not easily pigeon-holed into a left/right dichotomy. Blackburn heads up a well-respected non-profit that by its nature works closely with Democrats and Republicans. Folks in the criminal justice reform business tend to be single-issue focused and will gladly work with whoever supports them – see, for example, this recent Observer story and the remarks within it by Ana Yáñez-Correa, head of the Texas Criminal Justice Coalition, which include a warm endorsement of the newest Republican State Senator, Charles (no relation to Rick) Perry. Take these two “Democrats” out and you’re left with a group of mostly powerful Republicans standing in support of Rick Perry. There may or may not be merit to what they’re saying, but as a story it’s a lot less sexy this way.
As for my substantive objection, comparing Perry’s action to the standoff over immigration and a threatened executive order on DACA is so laughable I have to wonder if any of these high-profile signatories are even familiar with the case at hand. What this case is about is very simple: An elected official may not use the power of his or her office to try to coerce the resignation of another elected official. It’s not in dispute that this is what Rick Perry did. His defense boils down to 1) the laws that he is charged with violating were not intended for this use and are not applicable in this instance, and 2) he has a First Amendment right to make the kind of veto threats that he made. There may well be merit to point #1 – I have seen attorneys of the Democratic persuasion take pause with this. I’m not qualified to assess the legal fine points, but I recognize that Mike McCrum is tilling a new furrow here. Of course, Rick Perry did something no one had done before, too, so we’ll leave that up to Judge Richardson. As for the First Amendment argument, I claim no expertise but it seems to me that the exception being carved out here is narrow and well-defined. I see a bright line, not a slippery slope. Your mileage may vary, and so may the judge’s. If that’s the case, then so be it. I’m just not impressed by the smoke that these attorneys are trying to blow my way.
Finally, there’s a partisan question, raised in the comments here. Would I be so supportive of this prosecution if I didn’t have such a hearty dislike for Rick Perry? It’s always hard to objectively evaluate one’s own biases, and the partisan contours of this dispute were evident from the beginning, which makes it more difficult. But here’s a thought experiment to consider. We just elected ourselves an Attorney General that has some legal baggage of his own, including a criminal complaint, an SEC complaint, and a state bar grievance. It is possible that in the near future Ken Paxton could be in even more hot water than Rosemary Lehmburg once was. Now imagine that the gubernatorial election had turned out differently. How would you feel if Governor Wendy Davis was threatening to veto some piece of funding to the AG’s office unless Paxton stepped down? I would suggest that how you feel about that and how you feel about the Perry indictment should be about the same. If they’re not the same – in particular, if the way you feel about one is the polar opposite of how you feel about the other – that may mean you’re letting partisan feelings cloud your judgment. Just something to think about.
How would you feel if Governor Wendy Davis was threatening to veto some piece of funding to the AG’s office unless Paxton stepped down?
Speaking for myself, I would understand that Davis’ hypothetical “threat” was constitutionally protected speech based on State v. Hanson. Interestingly, Regina Hanson was a Democrat. It seems to me that the partisans out there ought to explain why Democrats can “threaten” to terminate government funding unless someone lost his job, but Republicans can’t.