Gov. Rick Perry’s high-powered legal team showed Monday that he will come out swinging against the Aug. 15 indictment charging him with coercion and misuse of office.
In a multipronged argument filed in Austin, defense attorney David Botsford told senior District Judge Bert Richardson that the two state statutes the 13-plus-year governor is accused of violating are “vague and overbroad,” violating the U.S. Constitution and the Texas Constitution both on their face and as specifically applied to Perry.
The case would require the courts to defy “the separation of powers doctrine fundamental to our democratic system of government” and, the filing says, “would impose an intolerable and incalculable chilling effect on the free exercise of legitimate constitutional powers by future governors.”
And even if Perry did everything he’s charged with doing, none of it was wrong, the 60-page filing says.
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It’s as thorough and aggressive a defense as anyone should expect on Perry’s behalf — a rapid response showing clearly that the governor and his team intend to attack every aspect of the allegations against him.
Now we should find out, if not the facts on which special prosecutor Michael McCrum of San Antonio intends to build his case, at least how good McCrum is as a legal tactician fending off a broad range of blows before the case even comes to trial.
McCrum will now answer the Perry team’s request that the proceedings be halted immediately. A decision either way by Richardson could go to the 3rd Court of Appeals in Austin and on to the state Court of Criminal Appeals.
None of the arguments in Perry’s filing are a surprise. Several commentators said soon after the indictment was handed down that the first defense steps would be to attack the statutes as unconstitutionally vague.
Perry is charged with trying to coerce Travis County District Attorney Rosemary Lehmberg into resigning last year after a drunken-driving arrest (her blood alcohol tested nearly three times the legal limit). She was verbally abusive to officers as she was being booked into jail and even had to be physically restrained.
The indictment says the governor vowed to veto $7.5 million in state funding for the Public Integrity Unit, which prosecutes alleged wrongdoing by state officials and is supervised by the Travis County DA. When Lehmberg wouldn’t resign, he did veto the allocation.
“Texans deserve what their State’s constitution guarantees: a Governor with the power to approve or disapprove of bills, or disapprove of certain items of appropriated funds, based on his considered judgment of what best serves the public interest,” Perry’s filing says.
“The exercise of this veto power is perhaps the key limitation on legislative power; indeed, the veto power is an integral component of the checks and balances that assure our freedom by limiting the powers of each department of government.”
The filing attacks one of the statutes for “failing to give reasonable notice to any official about what is permissible conduct on the one hand and what is felonious conduct on the other.”
Even if the statutes were not unconstitutional, the filing says, “the facts alleged by the State still fail on their face to set forth any violation of those statutes.”
If the case moves forward, the defense team says it will file a motion to quash the indictment, an entirely different line of argument.
While the filing argues that the state constitution gives the governor “unbounded” veto power, it cites legal precedents saying that in exercising that power the governor acts in a legislative rather than executive capacity.
That’s important because the constitution also gives lawmakers a high degree of legal immunity for their actions taken as part of the legislative process.
The only checks on the veto power, the filing says, are the Legislature’s ability to override it or impeach the governor, or the people’s ability to elect someone else.
Perry’s ability to get elected as governor is unmatched. Soon we’ll see whether he’s able to quickly bump these legal troubles aside.