This corndog has done nothing wrong
Following the cues provided in a judge’s ruling this week, lawyers for Rick Perry filed a request on Friday to get an indictment against the former governor dismissed.
The new request noted “serious, well-founded concerns” that Judge Bert Richardson had in his ruling on Tuesday regarding the wording of the two charges against Perry: abuse of official capacity and coercion of a public servant.
“Governor Perry asserts that the deficiencies set forth below constitute defects of form and substance,” says David Botsford, an attorney for Perry, in the new motion.
While Richardson has allowed the case to proceed, he noted in his ruling this week that both counts were vague. Richardson wrote that the first count failed to state how Perry misused the funds by exercising his power to veto legislation. And in the second, Richardson questioned how the coercion charge, as written, failed to account for an exception to the charge Perry is allowed based on his gubernatorial authority.
See here for the background, and here for the new motion. Judge Richardson more or less invited Perry’s legal team to make a new filing, but he also gave special prosecutor Mike McCrum the opportunity to refile the charges and clean up the issues he noted. I don’t know if there’s a specific deadline attached to that, but I’d guess sooner is better than later for an update from McCrum. Trail Blazers has more.
Perry’s latest motion should dispose of this case, especially since it points out that article 28.07 of the CCP would appear to preclude amendment of either count (although it would not preclude re-indictment.)
One point I would add to the motion is that an unsigned appropriations bill is not property (or “monies”), but merely a proposal to appropriate money. (Think back to Schoolhouse Rock–“Only a bill…sitting here on Capital Hill…”) Thus, there was never any property that the governor could possibly misuse.
OOPS–“Capitol Hill”
I question whether the governor’s appeal (filed last week) will go anywhere.
The judge’s order does not appear to have been a ruling on the governor’s habeas corpus petition, but rather a ruling on the governor’s Motion to Quash. Thus, any appeal would appear to be an interlocutory appeal of a pre-trial order, which is ordinarily not appealable.
Perry would have done better to file for a Writ of Mandamus ordering the trial judge to discharge the governor on Count II, as required by article 28.07 of the CCP when an exception to substance is sustained on the ground that no offense is charged.
Oops again (and sorry for taking up so much space in your comments section), but it looks like there is a second order denying the habeas corpus application appended to the end of the order denying the motion to quash.
An appeal of the judge’s denial of the habeas corpus application will not directly result in the dismissal of the charges against the governor, but will rather result in an opinion affirming the judge’s interpretation of the “coercion” statute as limited to outlawing threats of illegal action against a public official (i.e. threatening to break the public official’s legs if he doesn’t take a certain action.) This would ultimately benefit the governor with respect to Count II, since there is no evidence that the governor threatened to do anything unalwful vis-a-vis Ms. Lehmberg.
The habeas appeal looks unlikely to affect the misuse of funds charge (Count I).