The Volokh Conspiracy

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Amicus brief supporting the dismissal of the Gov. Rick Perry prosecution in Texas


I'm delighted to report that my friend Jim Ho (former Texas Solicitor General) of Gibson, Dunn & Crutcher, Prerak Shah of Gibson Dunn, and I have filed an amicus brief supporting the dismissal of the prosecution of Gov. Rick Perry, on behalf of many notable people on both sides of the political aisle:

  1. Leading First Amendment lawyer and scholar Floyd Abrams;
  2. Michael Barone, a leading scholar of American politics, and the main coauthor of The Almanac of American Politics;
  3. Prof. Ashutosh Bhagwat (UC Davis);
  4. Jeff Blackburn, Founder and Chief Counsel of the Innocence Project of Texas;
  5. Paul Coggins, former U.S. Attorney for the Northern District of Texas (1993-2001);
  6. Prof. Alan Dershowitz (Harvard);
  7. Justice Raul Gonzalez, former Justice of the Texas Supreme Court;
  8. Jim Ho (as I mentioned, former Texas Solicitor General);
  9. Prof. Daniel Lowenstein (UCLA), former founding chair of the California Fair Political Practices Commission;
  10. Prof. Michael McConnell (Stanford), former judge on the U.S. Court of Appeals for the Tenth Circuit;
  11. John T. Montford, former Lubbock County DA, former Texas State Senator, and the first Chancellor of the Texas Tech University System;
  12. Ted Olson, former Solicitor General of the United States;
  13. Ken Starr, former judge on the U.S. Court of Appeals for the D.C. Circuit and former Solicitor General of the United States; and
  14. me.

Here is the Introduction; I'll post the text of the brief shortly (as to the separation of powers argument on count I, the immunity argument on count I, and the freedom of speech argument on count II, but you can read the PDF here.

* * *

Governor Rick Perry announced that he would exercise his constitutional authority to veto a bill if another political official did not do what he wanted. Then he vetoed that bill. For these two ordinary political acts, Governor Perry has been indicted on felony charges.

Both counts of the indictment are unconstitutional and must be dismissed. The first count—which criminalizes Governor Perry's veto of a bill—violates the separation of powers enshrined in the Texas Constitution. The Legislature is not allowed to criminalize the exercise of powers that the Constitution specifically confers on the Governor, including the veto power.

And the second count—which criminalizes Governor Perry's threat to veto a bill if Travis County District Attorney Rosemary Lehmberg did not resign her office—violates the First Amendment of the U.S. Constitution and Article I, Section 8 of the Texas Constitution. Governor Perry "threatened" to perform an act that the Texas Constitution specifically reserved to him (a veto) in order to encourage a public official to engage in a lawful act (a resignation). That is constitutionally protected speech.

* * *We as amici take no position on the politics that led to this indictment. Reasonable people can disagree on the political tactics employed by both Governor Perry and his opponents. But to turn political disagreement into criminal prosecution is disturbing. To do so with an indictment riddled with constitutional infirmities is even worse.

The indictment of Governor Perry demands this Court's swift intervention. The writ of habeas corpus should be granted and this prosecution should come to an end.