All Americans Should Support Gov. Perry

Political prosecutions have no place in American life. Those who use the justice system as they are using it in Texas against Governor Perry violate the United States Constitution and subvert Democratic government.

The Charges Against Gov. Perry

The controversy started when the District Attorney of Travis County (a Democrat) refused to step down from office after being convicted for driving under the influence. Had she stepped down, Gov. Perry would have been able to fill her position with a Republican. In order to compel the District Attorney’s resignation, Gov. Perry threatened to veto $7.5 million in funding for the state’s Public Integrity Unit, an anti-corruption task force that she oversees. When she refused to budge, Gov. Perry made good on his veto threat.

To the surprise of many, criminal charges followed. Under the indictment, Gov. Perry is charged with violating two Texas laws. An “abuse of official capacity” statute prohibits public servants from “intentionally or knowingly . . . misuse[ing] 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 by virtue of the public servant’s office or employment.”

The other law under which Perry is charged bans the use of coercion to “influence[] or attempt[] to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influence[] or attempt[] to influence a public servant to violate the public servant’s known legal duty.”

The laws in question are rarely enforced and subject to prosecutorial discretion. Moreover, from the reaction to the indictment, it appears that the only people who support the charges are the prosecutor and the grand jury they manipulated. Liberal Democratic insiders, including former Obama campaign strategist David Axelrod have even expressed concern, characterizing the charges as “sketchy.” Here in New Jersey, Gov. Chris Christie and his potential successor, Assembly Republican Leader Jon Bramnick, are among the most vocal critics of the charges.

The Veto Right and Separation of Powers

Perry’s attorneys have argued that his veto “was made in accordance with the veto authority afforded to every governor under the Texas Constitution.” They are correct.

State constitutions, including both Texas and New Jersey, grant the legislature the power to enact laws and appropriate funding needed to run the government. To keep the balance of power in check, the constitutions also authorize the executive branch, i.e. the governor of the state, to issue vetoes.

The arrangement reflects the separation of powers principle upon which our country was founded. Separation of powers refers to the division of government responsibilities into three distinct branches—the legislative, executive, and judiciary. The aim is to limit any one branch from intruding on another and to provide for a system of checks and balances. As James Madison, the father of the Constitution, stated, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many… may justly be pronounced the very definition of tyranny.”

In this case, the Texas Constitution authorizes the governor to veto legislation as well as individual line items in an appropriation bill. It states, “If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill.” Accordingly, Perry is essentially being indicted for performing his executive duties as the Governor of Texas.

Gov. Perry’s funding decisions are also not the final say; rather, they form the basis of the budget negotiation process between the legislative and executive branches. Under the state’s constitution, lawmakers also have the power to overcome the veto by a two-thirds vote. In this case, rather than let the situation play out, Gov. Perry was indicted, in a move that raises serious separation of powers concerns.

Supporters of the indictment point to the fact that Gov. Perry threatened the veto ahead of time. Unwise political strategy does not rise to the level of a criminal abuse of power. Government and politics are inexorably linked and have been so since the dawn of civilization.  Using the criminal justice system to investigate people instead of crimes is wrong and can only lead to Tyranny as James Madison has said.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

All Americans Should Support Gov. Perry