Rick Perry, Texas’ longstanding Republican governor and a 2012 presidential candidate, is now under indictment. The indictment lays out two counts against the Texas governor, one for “Abuse of Official Capacity” and the other for “Coercion of Public Servant.”
As the Texas Observer explains, this indictment arises out of a dispute over who will hold one of the few Texas offices with statewide power that is still controlled by a Democrat. Rosemary Lehmberg is that Democrat, and she is the District Attorney for Travis County, Texas. Because Travis County includes Austin, the state capital, her office controls a Public Integrity Unit that investigates alleged ethical breaches by state-level politicians. Among other things, that unit investigated the Cancer Prevention and Research Institute of Texas, which is accused of improperly distributing grant money — including some grant money that was given to people with close ties to Governor Perry.
In April of 2013, however, Lehmberg was arrested for driving while very, very intoxicated. Hours after her arrest, her blood alcohol level was three times above Texas’ legal limit. She eventually pleaded guilty and spent a few weeks in jail. Yet Lehmberg has refused to step down from her role as District Attorney. According to the Observer, this is because she does not want Perry to have the opportunity to replace her with a Republican.
Perry allegedly crossed the line from an eager partisan hoping to replace a powerful official to a governor who broke the law, however, when he threatened to veto funding for the Public Integrity Unit unless Lehmberg resigned — and then he followed through on this threat. According to one count of the indictment, Perry “by means of coercion . . . influenced or attempted to influence Rosemary Lehmberg . . . in the specific performance of her official duty” — that duty being her obligation “to continue to carry out her responsibilities” as Travis County D.A.
The indictment lists two state laws which Perry allegedly violated. The first is a vague statute prohibiting public servants from “intentionally or knowingly . . . misuse[ing] government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” The second is a somewhat more specific law prohibiting anyone from using coercion to “influence or attempt to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influence or attempt to influence a public servant to violate the public servant’s known legal duty.”
Even if Perry’s actions fall within these statutes, however, the special prosecutor bringing these charges may need to overcome a significant constitutional obstacle. In a statement released Friday evening, Perry’s attorney claims that “[t]he veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution.” She may have a point.
The Texas Constitution gives the governor discretion to decide when to sign and when to veto a bill, as well as discretion to veto individual line-items in an appropriation bill. Though the state legislature probably could limit this veto power in extreme cases — if a state governor literally sold his veto to wealthy interest groups, for example, the legislature could almost certainly make that a crime — a law that cuts too deep into the governor’s veto power raises serious separation of powers concerns. Imagine that the legislature passed a law prohibiting Democratic governors from vetoing restrictions on abortion, or prohibiting Republican governors from vetoing funding for Planned Parenthood. Such laws would rework the balance of power between the executive and the legislature established by the state constitution, and they would almost certainly be unconstitutional.
So an important question facing whichever court is tasked with trying Perry’s case will be whether a law preventing Perry from using strongarm tactics to push out a genuinely compromised public official is an unconstitutional restriction on his discretion as governor or a valid means of reigning in corruption. This is not likely to be an easy question for the judges, and potentially, justices, who are called upon to resolve it.