Another way of thinking about the problems with the Rick Perry indictment

I’ve been looking for defenses of the Gov. Rick Perry indictment, and I haven’t found much that’s very detailed. Still, the general pattern of such arguments seems to be this: Gov. Perry acted illegally because

  1. he was trying to use an appropriations veto threat (and an actual veto) to force an elected official (drunk-driving Austin DA Rosemary Lehmberg) to resign, and that’s improper — let’s call this an “impermissible demand” objection — or
  2. he was trying to use an appropriations veto threat (and an actual veto) not for good government reasons, but because he wanted to block Rosemary Lehmberg from investigating his friends — let’s call this an “impermissible motive” objection.

Whether the Legislature could constitutionally pass specific laws banning such vetoes (notwithstanding the Texas Constitution’s seemingly unlimited grant of a veto power) or such veto threats (notwithstanding the First Amendment) is an interesting question. I’ve discussed it briefly here and here.

But the Legislature never enacted any such specific laws. The two laws that the prosecutor points to say don’t single out vetoes or veto threats aimed at getting someone to resign. They don’t single out a motive to block investigations of one’s friends. Let’s look closely at what they do say.

1. I’ll begin with the laws involved in Count II. Texas Penal Code §§ 36.03 and 1.07 provide, in relevant part,

[§ 36.03:] (a) A person commits an offense if by means of coercion he … influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty ….

(c) It is an exception … that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.

[§ 1.07(a)(9):] “Coercion” means a threat, however communicated:
(A) to commit an offense;
(B) to inflict bodily injury in the future on the person threatened or another;
(C) to accuse a person of any offense;
(D) to expose a person to hatred, contempt, or ridicule;
(E) to harm the credit or business repute of any person; or
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

Now some applications of these laws are quite clear: Threatening to kill a legislator in an attempt to influence the legislator to vote on something is a crime (under subdefinitions (A) and (B) of “coercion”), and that’s perfectly fine, since there’s a First Amendment exception for true threats of criminal conduct. Likewise, some applications of subdefinition (F) are quite clear when they are applied to other statutes, e.g., theft by coercion, sex trafficking using coercion, and so on. (Subdefinition (F) is in a general definitions statute, which applies throughout the Texas Penal Code.)

But when (as in this indictment) subdefinition (F) is combined with § 36.03, the results are startling: If the statutes are read literally, then it would be a crime

  1. for a legislator to tell the Governor, “if you appoint Joe Schmoe to this position, I won’t vote for the law you want me to support” (whether because the legislator doesn’t trust Schmoe to enforce the law, or because he thinks Schmoe would do a bad job and is using the vote as leverage);
  2. for a Governor to tell a legislator, “if you don’t amend this bill in a particular way, I’ll veto it”;
  3. for a legislator to tell a U.S. Senator, “if you vote for this federal bill, I’ll vote against this state law that you’ve been wanting us to implement”;
  4. for a legislator to tell a governor, “if you don’t resign, I’ll vote to impeach you”;
  5. for 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.”

This can’t possibly be permissible. All these statements, it seems to me, are protected from criminal punishment by the First Amendment. If subdefinition (F) is applied together with § 36.03, then the law is therefore “substantially overbroad” under the First Amendment, and thus unconstitutional on its face. It can’t be applied to anyone, even if a narrower law could be applied to that person. (See, e.g., United States v. Stevens (2010) for a recent example of the application of First Amendment overbreadth doctrine.)

If there is some narrower category of political threats can be outlawed, the legislature can enact a narrow statute that bans that speech. But under the First Amendment overbreadth doctrine, the legislature can’t just ban a vast range of political threats and let prosecutorial discretion take care of the matter.

Now I’m sure the Texas Legislature didn’t really mean to ban any threat by one politician to engage in an official action in order to influence another politician (setting aside the narrow exception set forth in § 36.03(c)). So maybe, some might say, there’s some implicit limitation, such as a ban on just “improper” threats or “unjustified” threats.

But any such limitation would then make the law unconstitutionally vague. People would be unable to know with any certainty what kinds of political speech will get them prosecuted and what won’t. People will therefore be unduly deterred from speaking. And it would be very likely that there would be viewpoint discrimination in the application of such a vague standard by prosecutors, judges and juries. (Compare Board of Airport Comm’rs v. Jews for Jesus (1987) for a similar situation in which the obvious vast overbreadth of a law led the government to urge a narrowing construction, but one that turned out to be unconstitutionally vague.)

Indeed, State v. Hanson (Tex. Ct. App. 1990) struck down an earlier version of § 36.03 that was identical in relevant respects to the current version. I discussed this in more detail in an earlier post, but the short version is this: The court’s analysis treated the law as written as overbroad (because “Coercion of a lawful act by a threat of lawful action is protected free expression,” at least in general and in the context of threats of political action aimed at influencing other political action) and vague (because it wasn’t clear whether the statute really was this broad, or whether it was instead more narrowly focused on threats of unlawful action).

The provision that is now § 1.07(a)(9)(F), the Court of Appeals said, “was not drawn with the narrowness and precision required when legislating within the realm of the First Amendment”; absence of “narrowness” refers to overbreadth, and absence of “precision” refers to vagueness. Discussion of overbreadth and vagueness in many First Amendment decisions often bleeds together, and sometimes vagueness is used when the more sound approach is overbreadth, or vice versa. But Hanson was correct in concluding that the § 36.03 / § 1.07(a)(9)(F) combination, as written, violates the First Amendment. (For another example of a similar statutory provision being held facially unconstitutional on First Amendment grounds, see State v. Steiger (Ariz. Ct. App. 1989).)

So whether or not a threat such as Perry’s could have been prosecuted under a narrow, clear law (e.g., one banning threatening defunding in order to get an official to resign), it couldn’t be prosecuted under a combination of § 36.03 and § 1.07(a)(9)(F), with their lack of “narrowness and precision.” Indeed, this combination has already been held to be facially unconstitutional by a Texas Court of Appeals — and is in any event unconstitutional under well-settled First Amendment principles.

2. Let’s turn now briefly to the laws cited in count I of the Indictment. Texas Penal Code §§ 39.02 & 39.01 provide, in relevant part,

[§ 39.02:] A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly … misuses 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.

[§ 39.01:] “Misuse” means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant….

As I discussed in this post, the $7.5 million (the funds that Gov. Perry vetoed) were never in his “custody or possession”; they remained in the Texas State Treasury, which is run by the Comptroller (a separately elected official), not the Governor. Though Gov. Perry had the power to decide whether the money goes to the D.A. or stays in the Treasury, that no more gives him “custody or possession” than jurors in a $7.5 million tort lawsuit have “custody or possession” of the $7.5 million when they’re deciding whether the money goes to the plaintiff or stays with the defendant.

But even setting that aside, the money has to be “misuse[d].” The prosecutor’s theory is that, while a typical appropriations veto is valid, this one is invalid, because it is “contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant.” (I’m quoting the indictment here.)

I take it that the premise is that an “impermissible demand” or an “impermissible motive” (the labels I used above) violates some “agreement” related to vetoes, or violates Gov. Perry’s oath to “faithfully execute the duties of the office of [Governor] …, and … to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State.” And of course, the same would be true as to legislators’ supposedly improper motivations or methods in voting appropriations in the first place. After all, a legislator’s decision to vote for or against an appropriation reflects just as much (or, in my view, as little) “custody or possession” of the money as a governor’s decision to approve or veto the appropriation.

Yet this theory too is unconstitutionally vague, as applied to the Governor’s use of his veto authority, or a legislator’s use of his voting authority. In some situations, it may be clear when the “agreement under which the public servant holds the property” is well-established, for instance when there’s an agreement that city-owned trucks are to be used for city business, and not for a city employee to haul material for his own private business purposes.

But here there is no remotely clear preexisting prohibition on specific sorts of treatment of appropriations. Whatever implied “agreement” you might think there is constraining gubernatorial vetoes or legislative votes — whatever you might think “faithfully execut[ing] the duties of the office of [Governor]” might be — whatever you might think “preserv[ing], protect[ing], and defend[ing] the Constitution and laws” might entail — these aren’t the sorts of prohibitions that are clear enough to justify criminal punishment of a political official for the discretionary exercise of his constitutionally assigned power. There’s no alleged violation here of any specific criminal prohibition here (or else the indictment would have charged that). Rather, the theory is that there’s some broad unfaithfulness or impropriety in what the Governor was doing that warrants criminal punishment even in the absence of a clear definition of what is improper.

That can’t be constitutional. It’s unconstitutionally vague for the law to require that people present “‘credible and reliable’ identification” to police officers when asked to do so (see Kolender v. Lawson (1983)), because this “necessarily ‘entrust[s] lawmaking ‘to the moment-to-moment judgment of the policeman on his beat’’” and “encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.” It’s likewise unconstitutionally vague for the law to be read as banning votes or vetoes under a “they don’t faithfully execute the duties of the office” standard.

Indeed, the vagueness problem is, if anything, especially great here precisely because it involves a restriction on a political official’s exercise of his political actions. If prosecutors can prosecute legislators or governors just because they think those officials aren’t faithful public servants (rather than because the officials engaged in some specifically prohibited action), the result would be (1) unfairness to the officials, who don’t know what can get them prosecuted, (2) for some officials, deterrence of actions that might catch the ire of a hostile prosecutor, and (3) a vast risk of discriminatory criminal enforcement by prosecutors who have a political axe to grind against a politician (whether or not this particular prosecutor in the Gov. Perry case has such an axe to grind).

Nor is there any need to read the statute as being this vague. For normal forms of property that are genuinely given into a public servant’s custody or control, the agreements about how the property is used are often pretty clear. What’s more, the duties of an office may specifically focus on treating particular property in a particular way, and a violation of the duties may indeed be a violation of the oath of office. Indeed, even the Governor himself would doubtless be barred from, say, renting out his mansion furniture to others’ homes and pocketing the proceeds.

But the office of Governor comes with no such clearly established rules about when to veto and when not to veto laws, and what constitutes the faithful execution of gubernatorial duties is famously controversial. When an interpretation of a law raises serious constitutional objections (including overbreadth and vagueness objections), courts rightly view that as a reason to construe it narrowly to avoid such constitutional problems, not to stretch it to rush headlong into such problems. There is no need to apply § 39.02 in situations where the only alleged “misuse” of property is an ill-defined violation of the duty to faithfully execute the laws, or to preserve, protect, and defend them — and no constitutional justification for so applying it.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · August 19