Governor Rick Perry is clearly not guilty of the charges in his indictment. I sure am, though. Anybody want to indict me?
Perry, of course, was indicted for vetoing the funding of the Travis County District Attorney’s Public Drunkenness/Integrity Unit after the unit’s chief public drunk proved herself to have none of the integrity she is charged with upholding. When she’s sober, D.A. Rosemary Lehmberg fires assistants who refuse to lie to internal affairs investigators and persists in unethical vendettas against Republicans such as Tom DeLay long after they’ve been exonerated. When she’s drunk, she drives all over the road, and then berates and threatens the officers who arrest her.
“Y’all are gonna be in jail, not me,” she said, at one point during her infamous booking video. You might say that’s just the sort of thing lawmakers had in mind when they made it a felony for anyone who “by means of coercion… influences or attempts to influence a public servant in a specific exercise of his official power…” A Travis County grand jury decided it wasn’t. Now comes another Travis County grand jury to say that criminal coercion is when a governor vetoes the funding for this dissolute public integrity unit after suggesting that its head really ought to resign.
The brand-new legal theory behind the charges, I was delighted to learn, is so broad that some of my own newsgathering activities could be called coercion of a public official. Technically speaking, under this definition, coercion of a public official is when somebody tries to get an official to do something by telling him he’ll do something else if he doesn’t. OK, the real definition is more specific than that, but just barely. A Texas court has insisted that the “something else” in that formula must be something illegal, or else you end up with endless absurdity. A library notifying a professor at the University of Texas that an overdue book could result in the suspension of borrowing privileges would fit this expansive definition of coercion. So would some of the emails I write in the course of my reporting.
The man responsible for this novel theory is one Michael McCrum, a former Obama nominee for U.S. Attorney and a very special prosecutor. His reading of a few vague passages of state law is so all-encompassing that it makes even expressly authorized actions illegal—vetoes, for instance.
Perry had been working under the assumption that governors have the authority to veto legislation. It’s an easy assumption to make, since it doesn’t involve any actual assumption. The state constitution explicitly allows it, it’s been standard practice nationwide since the founding of the republic, etc.
Against this mountain of historical fact we are offered a higher, mystical understanding of the law recently perceived by McCrum. Like some beardless Jerry Garcia, McCrum got shown the light in the strangest of places by looking at it right: Texas Penal Code section 39.02, which prohibits officials from misusing government property in their possession. The right way to look at it is to let your eyes glaze over, wave your fingers in front of your face, watch the tracers, and then wait for the universe to whisper a secret directly into your soul. Or something. Because it’s not there in the text. I’ve tried squinting five different ways, and still can’t see how a law meant to keep bureaucrats from stealing office supplies has anything to do with veto power.
Yet McCrum won’t be swayed from his hallucinogenic epiphany: this veto was a criminal misuse of government property because it, like, harmed the person who was supposed to get that property. He’s going to blow his own mind when he realizes what that means: any veto involving money is a crime.
On its face, the idea is intolerable and absurd, like taking the bus. It’s why liberals from former Obama advisor David Axelrod to Harvard professor Alan Dershowitz to the New York Times’s editorial board have all belittled the indictment, which is comprised of two charges. The first count is the “veto with intent to harm is abuse of office” theory. The second count is the “any threat meant to influence an official is a felony” theory. While the first is as self-evidently repellant as that bus ride, it’s the second that has nearly cosmic implications.
Let’s rejoin McCrum on his acid trip. He realizes that all of the governors have been breaking the law whenever they veto funding, and he must save them. “Stop,” he cries out. “You’re breaking the law. I’ll have to bring charges.” Then another McCrum materializes to warn our first McCrum that in threatening to accuse the official and in threatening to take official action, he is illegally trying to influence the exercise of an official power. Then McCrum C shows up to tell McCrum B that he has just illegally attempted to influence McCrum A in the same way. Then D appears. McCrum’s trip has turned into a nightmare of infinite regression, like those fractal posters and M.C. Escher drawings beloved of acid freaks everywhere.
The problem here isn’t just McCrum: it’s bad laws. The Texas legislature meets for just three or four months every other year, and the lack of practice shows in its handiwork. The two obvious problems with the law here are the term “influence” and the lack of any distinction between criminal and ordinary threats. The U.S. Supreme Court has already noted the hopelessly vague nature of the term influence, whose “ambiguity… poses constitutional problems.” The main one is that almost all First Amendment-protected political speech is meant to exert some form of influence, which government has no authority to restrict.
Law professor and free speech expert Eugene Volokh points out that Texas case law holds that coercion is only criminal when the threat itself is unlawful—e.g., Let me go or you’ll be the one in jail!—and that statutory law reflected that court ruling from 1989 until 1994, when the legislature mysteriously and thoughtlessly erased the distinction. A court would have to decide whether the distinction still exists. If it doesn’t, then all sorts of lobbying, routine politicking, and opinion journalism are potentially criminal. You could be a felon if you attempt to influence any official’s performance by saying, in any medium, that you will do any of the following activities:
- accuse a person of any offense;
- expose a person to hatred, contempt, or ridicule;
- harm the credit or business repute of any person;
- take or withhold action as a public servant, or to cause a public servant to take or withhold action.
I’m not just imagining professors who borrow library books in the course of their official duties. I can offer real examples. In the course of reporting on the University of Texas law school admissions scandal, I had to submit arguments to the state attorney general, Greg Abbott, on why I should be granted access to the Law School Admissions Test scores of several dozen UT grads of dubious qualification. I was trying to get the scores from other public law schools in Texas, where they weren’t covered by state or federal student privacy law, because the applicants were never students there. Abbott’s office needed some pretext to deny me the records, and I figured he would employ one he’d used in another request a few months prior: insisting that some dicta from Roe v. Wade, of all places, could be interpreted to cover LSAT scores. It was a bizarre contention, of course, for a pro-life strict constructionist, and I pointed it out in my letter.
“This was a huge missed story,” I wrote, “and I will certainly report on it if the Attorney General insists on sticking by this strange position. The headline would be something like, ‘Greg Abbott embraces Roe v. Wade.’” He stuck by his position, and I ended up putting it in two headlines.
Under Texas law, as interpreted by McCrum, my articles could well be an indictable offense. They’re also protected by the First Amendment, of course, but the stupidity of the law is that it criminalizes perfectly ethical behavior. The only reason those articles have any power to make Abbott look ridiculous or contemptible is that they expose his own hypocrisy. If he doesn’t want to be called a hypocrite, he can simply stop acting like a hypocrite. That’s not coercion; it’s accountability.
You know who else could go to jail? Just about anybody. Are you dealing with a bureaucrat who disregards the law? Don’t threaten to tell his boss or go to the press. Is your department ignoring a regulation? If you go upstairs, you’ll be trying to influence official actions and hurting your boss’s reputation. Coercion! Maybe a code inspector or tax assessor did you wrong, and you want to complain. Be careful not to expose them to ridicule or to suggest in any way that you’d like the mistake corrected. That mistake is an official action.
And you’d have to be extra careful when accusing a governor of criminal behavior. If you sent out a press release announcing your imminent criminal complaint against the governor on the morning of June 14, 2013, hours before the governor actually used his veto, but the actual complaint is dated June 26, you might be guilty of a crime, too. Threatening to accuse a public servant of an offense hours before he’s due to take an official action would seem to be textbook criminal coercion.
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