Why the Perry indictment should be dismissed: count I (veto), separation of powers

|The Volokh Conspiracy |

As I noted below, Jim Ho and Prerak Shah (Gibson, Dunn & Crutcher) and I have filed an amicus brief on behalf of 14 scholars, former judges, and former prosecutors (liberal, conservative, and moderate) arguing that the indictment of Gov. Rick Perry should be dismissed. (For a refresher on the indictment itself, see here.) You can read the brief in PDF form here, but I thought I'd also post the full text on the blog. Here is the separation-of-powers argument on count I, which focuses on Gov. Perry's veto of appropriations for the Travis County DA Rosemary Lehmberg's office; I'll post separately on the immunity argument on count I, and then on count II, which focuses on Gov. Perry's threat of the veto.

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I. Count I of the Indictment Should Be Dismissed, Because It Is Both Unconstitutional and Barred by Legislative Immunity.

Count I of the indictment essentially alleges that Governor Perry violated Section 39.02(a)(2) of the Texas Penal Code when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney's office. The prosecution alleges that Governor Perry exercised this veto "with intent to harm another"—namely, District Attorney Rosemary Lehmberg and the Public Integrity Unit.

But this Count suffers from two independently fatal flaws: (1) the Legislature is not allowed to criminalize the Governor's exercise of his veto power, and (2) Governor Perry is entitled to absolute legislative immunity for any exercise of his veto power.

A. Count I Violates the Constitutional Doctrine of Separation of Powers, Because the Legislature Cannot Criminalize the Exercise of a Governor's Constitutional Veto Power.

1. The Texas Constitution vests in the Governor the absolute authority to veto appropriations bills. See Tex. Const. art. IV, § 14. The Governor is entitled to decide which laws he "approv[es]" and which he disapproves—without any constraint from the Legislature, or from special prosecutors. Id.

The Texas Constitution also includes an explicit separation of powers provision that sets forth the structure of Texas government:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const. art. II, § 1.

This express provision "reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government." Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). "So important is this division of governmental power that it was provided for in the first section of the first article of the Constitution of the Republic of Texas, and alone it constituted article 2 of each succeeding Constitution." Langever v. Miller, 76 S.W.2d 1025, 1035 (Tex. 1934)

For these reasons, courts have long been vigilant about preventing any attempt by one branch of the government to encroach on the authority constitutionally secured to another branch. Accordingly, "any attempt by one department of government to interfere with the powers of another is null and void." Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App. 1987). The separation of powers provision is violated "when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers." Ex Parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013).

Yet the prosecution today claims that Section 39.02(a)(2) criminalizes Governor Perry's veto of an appropriations bill. If that were true, then the statute would be plainly unconstitutional. The Legislature cannot make it a crime for the Governor to veto appropriation bills, because that would obviously "interfere[] with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers." Id. Any such outlawing of the use of the veto power would unilaterally increase the Legislature's own power, by eviscerating the Governor's power to veto legislation he does not "approve" of—even though, under the Texas Constitution, every legislative bill is subject to veto. The Legislature cannot enact a statute that constrains that gubernatorial power, thereby enlarging its own.

Nor would the analysis be different if Governor Perry vetoed a bill "with intent to harm another." The Texas Constitution places no limits on the Governor's exclusive power to decide which bills to give his "approval." So the Legislature cannot empower the Judiciary to pass judgment on the Governor's intent behind a veto and chill the Governor's exercise of his veto power through the prospect of criminal punishment.

2. There are, of course, constitutional limits on the Governor's veto power. The Legislature can override a Governor's veto with a two-thirds vote. The Legislature can threaten not to enact laws that the Governor supports if he continues to exercise his veto in a manner with which it disagrees. The Legislature even has the power to impeach a Governor for a veto. And of course, the people of this State could always vote a Governor out of office because of a veto.

The Legislature can also criminalize acts of political corruption, such as the acceptance of a bribe in exchange for a veto. Notably, however, the illegal act in that circumstance is the acceptance of the bribe—not the veto itself. So a bribery prosecution would not trigger any of the separation of powers issues that plague this prosecution. See, e.g., United States v. Brewster, 408 U.S. 501, 526 (1972) ("There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.").

None of these constitutionally permissible acts authorize criminal prosecution for the Governor's exercise of his constitutionally prescribed veto power.

3. It is not necessary to read Section 39.02(a)(2) in this clearly unconstitutional manner. There is no indication that the Legislature intended for the statute to be so read. This reading is the prosecution's own. This Court can, and should, avoid this constitutional controversy entirely, by declaring that the statute simply does not criminalize Governor Perry's conduct. As explained in further detail in the Governor's application for a writ of habeas corpus and motion to quash the indictment, a Governor simply does not have "custody or possession" of a sum of money that starts out in the Texas Treasury, ends up in the Texas Treasury, and remains throughout in the Texas Treasury. Those funds are always in the custody of the Comptroller, not the Governor.

Not only would this be the most natural reading of the statutory text, but it would also avoid the constitutional infirmities raised by prosecuting Governor Perry for his veto. See, e.g., Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) ("We presume that when enacting legislation, the Legislature intends to comply with the state and federal constitutions, and we are obligated to avoid constitutional problems if possible.") (quotations and citation omitted).

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The Constitution permits only two options: either (1) read Section 39.02(a)(2) the way the prosecution does, and then declare the statute unconstitutional, because it violates the separation of powers doctrine decreed in the Texas Constitution; or (2) avoid the constitutional issue altogether, by interpreting the statute not to apply to a Governor's veto of an appropriations bill. Either way, Count I must be dismissed.

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