Docket 14-006: The news from Ferguson, MO is depressing, so… Rick Perry was Indicted!

In this episode:

  • The IRS settles in the lawsuit brought by the FFRF;
  • New abortion developments;
  • Rick Perry’s criminal troubles;
  • Ukarain and Russia and the United States and Cuba; and
  • Isreal and ISIL.


  • Paul

    I just listened to the segment on Rick Perry’s indictment, and I think it is an interesting question. For what it’s worth, here is my thoughts on the matter.

    After thinking about what you had said, I decided to try approach the issue coming from the opposite direction. Let me take something that would generally be considered a clear case of either coercion of a public servant or abuse of official capacity.

    It’s from this that I think (for the second statute, abuse of official capacity) the key word you are missing is “misuse.”

    Misuse, at least to me, involves something which as part of someone’s regular job function, is “used.” However, it is possible for that something to be “misused” also.

    For example, a police officer is required to carry and sometimes use a handgun as part of his job. However, if he were to use the handgun to intimidate a shop owner to give him free meals, that would be a “misuse.” The police officers behavior could not be excused from that misuse because “it’s part of his job to use his handgun.”

    Brought back to the Rick Perry situation, it is true that as Governor he can veto items from the state budget–for myriad different acceptable reasons. …However, using that veto to withhold funding for the entire operating cost of an official government body–for the explicit purpose of putting leverage on a political rival to resign–I think could be argued qualifies as misuse.

    Notice too that what the political rival did to invite the retaliation hasn’t come into the discussion. So for the purpose of determining if this was misuse, the political rival could have simply voted the wrong way or opened an unw noted investigation.

    The point is that vetoing the funding for the Austin DA office from the state budget for political leverage is not a tool a governor should be able to use–regardless of the ultimate goal. It is a misuse of the veto power. I think Rick Perry wanted to play hero (see: vigilante) and save the day. To do so, he misused his official capacity to veto.

    As far as coercion though, I think you are right. The law seems to apply specifically to non-government servants or employees.

    But again, I’m neither a legal expert nor from Texas. I just think given a more cut-and-dry example of what the law is intended to stop, the key word you must examine is “misuse.”

  • Paul

    And one last thing, bc I just listened to the final 30 seconds of the segment, why is the line-item veto of the department’s funding not a misuse?

    It’s not like he as governor is choosing to or not choosing to give moneys at his discretion. The budget is devised and hammered out and eventually voted on by the state legislature. The governor then just has to sign the budget. Instead he vetoed that specific line of the budget with the explicit reason to place political leverage on this woman.

    What about the other consequences of blocking that funding? Perry decided that shutting down the Austin DA internal affairs office was necessary collateral damage to manifest his moral conviction that someone within that department should resign. How can that not be a misuse of his official capacity?

    • Oliver_W_H

      I guess the point I keep getting hung up on is that it seems like it’s his veto power that he’s misusing, but the line-item veto doesn’t strike me as “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.” But the indictment says it’s the funds themselves and I’m just having trouble seeing how his veto qualifies as either “use” or “misuse” of the actual money. I see that more as a misuse of the budget bill, rather than the money it appropriates, but then perhaps the budget bill counts as a “thing of value.” I don’t know. Maybe once I get the chance to look into how the Texas courts have interpreted “misuse,” I’ll change my mind.

      It might be a little bit before I’m able to do that though. At the moment, I’m job-hunting, house-hunting, and trying to put the next episode together. No rest for the wicked, huh?

      • Paul

        In thinking through this yesterday I came to the same perplexing problem–that the misuse was of the veto power but the thing of value is the funds that it was applied towards. It certainly is a situation that the wording of the law gets tricky on.

        Going on the assumption that this isn’t a short sighted move for the purpose of the single press release (which certainly could be the explanation), assuming that the indictment was made with the intent to follow through and succeed, there jumps to mind two ways this could go down.

        The first you already mentioned, that through previous cases there is precedent that–in spite of the suspect wording in the law–this counts.

        The second would be a bit more post-hoc rationalization-ish. The argument might be that governmental actions/orders like vetoes or hiring/firing count as inherent extensions of the things they are being applied to. Like perhaps the action of canceling a certain social program is simply a facet of that program itself. Or the firing of a government employee without cause is actually a misuse of the asset that employee represents.

        So the argument would be (and granted this sounded better in my head than it does now on screen), that the veto itself the action part of what’s done to the $200,000.

        Brought back to the cop example, the misuse of the gun occured via the action of pointing it at the store clerk to intimidate him. The misuse isn’t pointing, but rather pointing the gun. Similarly, the action of vetoing is not something in unto itself, but rather it requires the $200,000. The misuse isn’t vetoing, but rather vetoing the $200,000.

        … Man as I constructed that, I felt so much like my dad arguing semantics with a traffic cop…. :/

        • Paul

          I managed to skip a paragraph that connected the actual funds with the words on the budget appropriating those funds. That’s one more step

        • Oliver_W_H

          I get what your saying in the second argument, there, although in the cop analogy, it’s clear that the gun was something he “possessed”, but it’s not at all clear to me whether Perry “possessed” either the veto authority (at least in the way this statute seems to use “possess”) or the funds he vetoed.

          I think the bigger problem is that the Travis County DA will need to convince a jury of Perry’s guilt using one of these theories, and I come back to what I said in the episode: If my liberal self still finds it dubious, what are the odds they convince a jury of twelve?

          • Paul

            I agree. Still, if this situation doesn’t qualify, then what situation would? Keep in mind that the MOTIVE for the governor’s retribution here (to force a political rival to resign from their position) never comes into the picture.

            Therefore, a far more egregious example of a governor misusing his gubernatorial powers to perform crooked and/or corrupt actions for the sole sake of internal politics–this would also run into the same issue with the wording of the law.

            It seems to me that if this does fail, that the wording in the law should be revised to at least make certain that more black-and-white cases of abuse of official capacity would be illegal.

            –Not that i don’t think this situation is a clear cut case of misuse of official capacity, in the common understanding of what that means. Regardless of whether perry thought he was doing the right thing, he decided to play vigilante cowboy and take the law into his own hands to manifest what he feels is the right thing to do, by misusing the powers he was given to use by the electorate. Yaknow?

            But then…. If someone believes that three rights make a left… then I can see why two wrongs making a right would sound logical too.

            As you said, maybe the woman should have resigned. I dunno. Either way though, arbitrarily dismantling/sabotaging an entire department of the government to achieve a personal political goal isn’t something an elected governor should be able to do.