The indictment of Gov. Rick Perry, and the other Ferguson in the news

JamesFerguson

Discussions of the Gov. Perry indictment have often referred to another Texas gubernatorial controversy: the 1917 impeachment and removal of Gov. James Ferguson for financial corruption, plus (in a small portion of the charges) vetoing an appropriation for the University of Texas, supposedly for improper reasons, and interfering with the affairs of the University. Ferguson was also indicted by a grand jury on various charges, but to my knowledge that indictment did not lead to a normal criminal trial.

Does the removal of Gov. Ferguson offer a foundation for the criminal charges against Gov. Perry? (Note that I’ll use the term “removal,” even though Gov. Ferguson, in anticipation of the verdict, resigned the day before the verdict was handed down.) It doesn’t, I think, and here’s why.

1. The veto charge (count I): To begin with, recall that Gov. Perry was indicted on two charges — the first related to the veto of the appropriation for drunk-driving D.A. Rosemary Lehmberg’s Public Integrity Unit, and the second related to the threats of such a veto, aimed at getting Lehmberg to resign. Let’s start with the first.

Gov. Ferguson was likewise indicted for an allegedly ill-motivated veto — but the Senate refused to convict him (by a 24-6 vote). While we can’t know for sure why the Senate decided as it did, since there was no collective opinion on the law (as there would be from an appellate court), several of the Senators made clear that this was in part because they thought the veto power was absolute, and could not form the basis for an impeachment:

[Senator Bee:] I vote “no” on Article 15 because the Constitution gives the Governor the right of veto, and for a Legislature to make impeachable the exercise of that right would establish a precedent which would plague people of this State hereafter if differences arose between the Legislature and the Governor. I utterly disapprove the action of the Governor in vetoing this appropriation….

[Senator Alderdice:] … [T]he Governor has a right to veto any measure passed by the Legislature…

[Senator Page:] … [T]he organic law of this State [i.e., the Constitution -EV] gives the Governor the right to veto any measure. I think his discretion was abused, but I think it would be a dangerous thing to impeach a man for doing a thing the Constitution gives him a right to do….

[Senator Harley:] … [W]hile the vetoing of the appropriation for the University was unsound in policy and unwarranted in fact, yet the constitutional right of veto is of such high importance that any effort to abridge or curtail that right would set a precedent that would be dangerous, and would probably lead to graver dangers than the abuse of that right.

[Senator Hudspeth:] … [U]nder the Constitution of this State the Governor has the right to veto any bill, while I think that the right was grossly abused in this instance and I urged the Governor not to make this fatal error before he did so. However, I cannot vote to convict a man for exercising his constitutional right of veto.

Five other senators who voted “no” gave other reasons for their decisions, though none stated that the Governor’s veto power would indeed properly form the basis for impeachment. The remaining 14 “no” voters and the 6 “yes” voters did not state their reasons. (Note that none of the five Senators I quote above were consistent Ferguson partisans; each of them voted for impeachment on at least 3 of the charges.) We thus don’t know for sure what principle was applied by the majority of the Senate, or even whether the majority had a uniform view on the subject — an inherent problem with trying to use the result of an impeachment trial as a precedent. But we do know that the improper-veto-as-impeachable-offense charge was rejected by a wide margin.

So if the Ferguson impeachment sets a precedent — and, for reasons I’ll discuss below, I don’t think it does — it sets a precedent against count I of the prosecution. And recall that the rejection of this charge was the judgment of one house of the Legislature, the very institution that is constrained by the Governor’s veto power. The Senate’s rejection of impeachment for use of the veto power to overturn an appropriation the Senate had voted for, a rejection that was against the Senate’s own institutional interest, is thus especially noteworthy (in a way that an action in favor of its own institutional interest would not have been).

2. The threat of veto charge (count II): Let’s turn now to the second charge, which is that the Governor improperly threatened D.A. Lehmberg with the veto if she didn’t resign. The Senate in the Ferguson trial did convict Ferguson (by a 22-9 vote) of improperly seeking to get University faculty members fired, and thus of interfering with the Board of Regents’ constitutionally assigned discretion; and it convicted Ferguson (by a 22-8 vote) of improperly seeking to remove Regents (and of demanding their resignations), and thus interfering with their constitutionally prescribed independence. Nonetheless, I think this doesn’t justify the criminal prosecution of Gov. Perry.

a. What constitutes an impeachable offense and what constitutes a crime are very different matters under Texas law. We know this because the Texas Supreme Court has expressly so held, in a case brought by then-former-Gov. Ferguson himself: Ferguson v. Maddox, 263 S.W. 888 (Tex. 1924).

When the Senate voted to remove Ferguson, it also decided to bar him from further holding office in Texas (an option available to it under the constitutional provisions related to impeachment). In 1924, though, Ferguson decided to run for office again. One John Maddox sued, as a voter, to get Ferguson removed from the ballot, on the grounds that Ferguson’s past impeachment disqualified him from candidacy. Ferguson responded that the impeachment was invalid, and the Texas Supreme Court therefore ended up deciding the matter.

Ferguson made several arguments, but the most important for our purposes was this: Title 1, article 3 of the Texas Penal Code provided that, “no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this State.” Yet, the argument went, in 1917 “neither the Constitution nor any statute of this state either defined or designated, within the purview and meaning of article 3 of title 1 of our Penal Code, the specific acts and conduct for which an individual could be removed from office.”

No, said the court. Historically impeachment was aimed at “official delinquencies or maladministration,” which “need not be statutory offenses or common-law offenses, or even offenses against any positive law.” Though “the Senate must proceed according to law,” following “the Constitution, legal treatises, the common law and parliamentary precedents, and therefrom determin[ing] the nature, elements, and characteristics of impeachable offenses, and, in the light of reason, apply[ing] the principles so worked out to the facts of the case before it,” it was not constrained — as criminal courts are — by the written criminal law. Thus (paragraph breaks and emphasis added),

There is no conflict between article 3 of the Penal Code and the sections of article 15 of the Constitution relating to impeachment. They relate to different matters and operate in entirely different spheres.

‘The purposes of an impeachment lie wholly beyond the penalties of the statute or the customary law.’ The Constitution, in relation to impeachment, has in mind the protection of the people from official delinquencies or malfeasances. The Penal Code, on the other hand, has in mind an offender merely as a member of society who should be punished for his individual wrongdoing.

The primary purpose of an impeachment is to protect the state, not to punish the offender. True, he suffers, as he may lose his office and be disqualified from holding another; but these are only incidents of a remedy necessary for the public protection.

That something is an impeachable offense, then, doesn’t establish that it is a crime. To be a crime, an act must be prohibited by the written criminal law. But impeachable offenses could be “delinquencies or malfeasances” far outside the written law, so long as, in the judgment of the Senate — based on its understanding of (among other things) the Constitution and various “parliamentary precedents” — “the protection of the people” requires the official’s removal. That the Senate found Gov. Ferguson worthy of impeachment for his pressure on the University officials doesn’t tell us that similar pressure is a crime, or even that the Senators thought at the time that it was a crime.

b. More generally, individual impeachment decisions, which are political decisions rendered under specialized rules, make poor legal precedents for future interpretation of the law by courts. Senators make decisions under direct political influence (greater than the political influence on judges even in states where judges are elected). They have close ties to parties and factions. They don’t produce written reasons for the group action, so it’s hard to know what principle (if any) they were following. And, as I noted above, they are answering a different question than criminal law courts ask.

Here’s one way of thinking about this. In 1924, after Ferguson was ruled to be disqualified from office by his impeachment, Ferguson’s wife Miriam Ferguson ran for the governorship and won, becoming the second woman governor elected in American history. “She quickly assured Texans that if elected she would follow the advice of her husband and that Texas thus would gain ‘two governors for the price of one,’” James Ferguson apparently gave most of the campaign speeches for her, and a common bumper sticker read, “Me for Ma. And I ain’t got a dern thing against Pa” (“Ma” was Miriam’s political nickname, and “Pa” James’s).

While James Ferguson wasn’t literally becoming a co-governor, Miriam Ferguson’s election thus seems to have been a vindication of Ferguson in the eyes of the voters — the ultimate decisionmakers in Texas. Why shouldn’t that decision by voters be seen as “precedent” for the proposition that Ferguson’s conduct was ultimately adjudged to be acceptable in a Governor?

There are of course many answers to that. We don’t know exactly why the voters decided as they did. The voters may have been motivated more by partisan or factional considerations than by legal ones. The voters may even have been motivated by personal affection or loyalty. The voters’ judgment might simply have been that the election of Gov. Ferguson, regardless of the legal rights or wrongs of his past conduct, was in the State’s best interests. For all these reasons, the results of a vote on a candidate aren’t really properly seen as a binding or even influential judgment on future controversies, especially as to what should be punished by the criminal law.

Yet pretty much the flip side of these considerations applies to the Legislature’s decision to remove Ferguson. We don’t have a written opinion from the Senate. The Senators may have been motivated more by partisan or factional considerations than by legal ones. The Senators may even have been motivated by personal hostility. Their judgment might simply have been that the removal of Gov. Ferguson, regardless of whether what he did was illegal, was in the State’s best interests. For all these reasons, the results of a vote on impeachment aren’t really properly seen as a binding or even influential judgment on future controversies, especially as to what should be punished by the criminal law.

Now to be sure, even if one legislative decision isn’t a precedent, many decisions added up over a long stretch of time, during many administrations, may create a pattern, a tradition, a custom — things that judges do tend to follow, even if not the same way that they follow a judicial precedent. (For instance, a consistent history of legislative judgments about the meaning of the Constitution is often viewed by courts as a tradition that is worthy of respect.) But one impeachment decision of the Legislature, much like one vindication by the voters, shouldn’t qualify as an influential precedent for future judicial decisions, especially (as I noted above) judicial decisions about criminal law.

c. Finally, note that, as I argued in a previous post, the main objection to Count II is based on the First Amendment — the “coercion” statute, as interpreted by the indictment, is unconstitutionally overbroad (and perhaps unconstitutionally vague) because it covers a vast range of constitutionally protected speech. Even if a Texas Legislature’s impeachment judgment were to have some force in interpreting Texas law, it can’t constrain the scope of the First Amendment to the federal constitution.

So for all these reasons, I don’t think the Gov. Ferguson impeachment ought to affect our judgment about the Gov. Perry prosecution. I’ve argued in other posts that the Gov. Perry indictment is unsound; but whether you agree with the analysis in those posts or not, the legal arguments in those posts are the ones that are relevant here, I think — not the history of Gov. Ferguson (or the Govs. Ferguson).

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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