The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 argument on count II, which focuses on Perry's threat to veto appropriations for the Travis County District Attorney Rosemary Lehmberg's office; I've posted separately on the separation of powers argument on count I and the immunity argument on count I.
* * *
II. Count II of the Indictment Should Be Dismissed, Because It Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.
Count II of the indictment alleges that Governor Perry violated the law by "threatening" to use his veto powers if a government official did not resign her post. But he has every right to do just that. Criminalizing Governor Perry's threat to veto legislation violates his right to freedom of speech under the Texas and U.S. Constitutions. This Count must also be dismissed.
A political official has the right to threaten to engage in an official act in order to persuade another government official to engage in some other official act. That is not a crime - it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) ("What is a threat must be distinguished from what is constitutionally protected speech.").
The Waco Court of Appeals said precisely that in a similar case over twenty years ago. See State v. Hanson, 793 S.W.2d 270 (Tex. App. - Waco 1990, no writ). In that case, a county judge "was charged with having made a threat to take action as a public official in an attempt to coerce another public official into performing an official act." Id. at 272. Specifically, the defendant in Hanson threatened to terminate some of the county's funding in order to coerce a district judge to fire a county auditor and to coerce a county attorney to revoke an individual's probation. Id. at 271-72. Both the trial court and the court of appeals correctly dismissed the charges. As the court explained, in this sort of political context, "[c]oercion of a lawful act by a threat of lawful action is protected free expression." Id. at 272.
So too here. Governor Perry has been charged with attempting to "coerce" a lawful, official act (the voluntary resignation of a public official) by threating to take a lawful, official act (the veto of an appropriations bill). That is protected free expression, and the Governor cannot be prosecuted for it.
Moreover, the consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution's theory of the case would criminalize a vast swath of constitutionally protected - and exceedingly common - political speech. For example, it would make it illegal for:
- a legislator to tell the Governor, "if you appoint John Smith to this position, I won't vote for this law you want me to support";
- a Governor to tell a legislator, "if you don't amend this bill in a particular way, I'll veto it";
- a state legislator to tell a U.S. Senator, "if you vote for this federal bill, I'll vote against this state law that you like";
- a legislator to tell the Governor, "if you don't resign, I'll vote to impeach you"; or
- a government employee to tell his supervisor, "if you don't give me a raise, I'll ask for a transfer to a different department."
We need not limit ourselves to hypotheticals. Consider, for example, what happened during the Texas Youth Commission controversy in 2007. Countless state legislators across the political spectrum demanded the resignation of the commissioners - and threatened legislative action if they refused. See, e.g., Lawmakers Decry Abuses Within Texas Youth Commission, Texas Senate News, Feb. 27, 2007 ("[Senator] Ogden said the Finance Committee is prepared to use the power of the purse to influence change at TYC . . . . He said significant changes will have to occur within TYC, enough for him to have confidence to recommend to his committee members that 'any appropriation' should go to the agency."); Perry: Board to Resign, Waxahachie Daily Light, Mar. 15, 2007 ("[At] a meeting of the joint committee charged with addressing problems at the TYC, lawmakers asked for the resignation of the board members, going so far as to pass a vote of no confidence against the board.").
Likewise, when U.S. Senator Larry Craig was arrested for indecent conduct in a public restroom, "Republican leaders embarrassed by Craig's behavior and news conference threatened to conduct hearings if Craig did not resign." Hardball with Chris Matthews, MSNBC, Sept. 5, 2007.
And when it was revealed that U.S. Representative Anthony Weiner had sent sexually themed photographs of himself via Twitter, "his fate was sealed . . . when party leaders in Congress and President Barack Obama began vociferously calling for him to go and threatened to remove him from various committees." Alex Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd Twitter Photographs, Telegraph (U.K.), June 16, 2011.
According to the prosecution in this case, it would have been a crime under Texas law for any of those officials to demand the resignation of other officials, and then inform the other officials of potential retaliatory legislative actions if they refused. That cannot be correct. What the Texas legislators did in 2007, what the U.S. Senate Republican leadership did in 2007, and what the U.S. House Democratic leadership did in 2011 was neither criminal nor capable of being criminalized - it was protected political speech.
And so too here. Just as Texas legislators were entitled to demand the resignation of the members of the Youth Commission, and just as members of Congress were entitled to demand the resignation of a Senator and a Representative who had disgraced their offices, Governor Perry was entitled to demand the resignation of an official whom he felt was no longer serving the best interests of the Texans he was elected to represent - and to promise to use his constitutionally provided veto power to achieve his goal. That was protected speech, and the State cannot criminalize any of it.
* * *
Just last week, President Obama renewed his earlier threats to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. See, e.g., President Barack Obama, Remarks by the President in a Press Conference (Nov. 5, 2014), transcript available at http://www.whitehouse.gov/the-press-office/2014/11/05/remarks-president -press-conference; Neil Munro, Priebus: Obama Executive Amnesty Is A 'Nuclear Threat', The Daily Caller, Nov. 7, 2014, available at http://dailycaller.com/2014/11/07/priebus-obama-executive-amnesty-is-a-nuclear-threat.
If President Obama can tell Congressional Republicans (as he did just last week, at an official White House press conference): "You send me a bill that I can sign, and those executive actions go away" - why can't Governor Perry tell a convicted official essentially the same thing: "You resign from your office, and my veto goes away"?
Moreover, if this prosecution is not immediately dismissed, the chilling effect on political discourse could be disastrous. Any public official who seeks to drive criminally or disgracefully behaving officials out of office will now rightly fear that a district attorney from the other side of the political spectrum would prosecute him - just as Governor Perry is being prosecuted here today.
If Governor Perry is forced to endure a criminal trial, then the damage has already been done - even if he is ultimately acquitted. The mere knowledge that an indictment can be maintained would itself chill a vast spectrum of constitutionally protected political speech by other political officials. See Hanson, 793 S.W.2d at 273 ("A vague statute that potentially could punish protected political debate violates due process because of its chilling effect on the exercise of that essential right.") (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
That is why an immediate writ of habeas corpus is necessary in this case. This Court should announce - right now - that it is unconstitutional to prosecute Governor Perry for his protected political speech.
The flaws in this indictment strike at the heart of the separation of powers doctrine enshrined in the Texas Constitution, as well as the freedoms protected by both the First Amendment of the U.S. Constitution and Article I, Section 8 of the Texas Constitution. So this prosecution must end immediately. The application for a writ of habeas corpus should be granted.
 We accept here for purposes of argument the special prosecutor's position that District Attorney Lehmberg's resignation would have constituted an official act. But if leaving office is not an official act, then the elements of Section 36.03(a)(1) would not be satisfied, since that statute refers only to attempts to influence the exercise of official power or official duty.
 This list of protected speech that would be deemed criminal reveals another fundamental problem with this count: the statute is unconstitutionally overbroad and therefore facially invalid. So although Governor Perry engaged in constitutionally protected expression, in fact no one can be prosecuted under this statute.
A law is unconstitutionally overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, n. 6 (2008) (quotations and citation omitted). And notably, prosecutorial discretion is not a defense to a statute that is overbroad. "[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." United States v. Stevens, 559 U.S. 460, 480 (2010). Here, the law - as interpreted by the prosecution - would plainly capture an overwhelming amount of protected speech. It is accordingly unconstitutionally overbroad.
 See, e.g., Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, Main Justice, Oct. 13, 2009, available at http://www.mainjustice.com/2009/10/13/doggett-no-retreat-on-us-attorney-picks/ (quoting statement of U.S. Representative Lloyd Doggett recommending "LULAC-supported Michael McCrum" for appointment as U.S. Attorney by President Obama).