This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:
Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.
Gov. Rick Perry
The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.
→ One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.
→ The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).
→ See here re video of Gov. Perry’s Aug. 16, 2014 press conference
→ See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment
→ Counsel for Gov. Perry on appeal: Tony Buzbee, David Botsford & Thomas R. Phillips (Appellant’s brief here)
Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:
- “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
- “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”
The 18 who signed onto the amicus brief are:
- Floyd Abrams (First Amendment lawyer)
- Michael Barone (Resident Fellow at the American Enterprise Institute)
- Ashutosh Bhagwat (UC Davis law professor)
- Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
- Paul Coggins (former U.S. Attorney for the Northern District of Texas)
- Alan Dershowitz (Harvard law professor)
- Raul A. Gonzalez (Former Justice, Texas Supreme Court)
- James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
- Daniel Lowenstein (Emeritus UCLA law professor)
- Michael W. McConnell (Stanford law professor)
- John T. Montford (Former District Attorney for Lubbock County, TX)
- Michael Mukasey (Former U.S. Attorney General & former federal court judge)
- Theodore B. Olson (Former Solicitor General of the United States)
- Harriet O’Neill (Former Justice, Texas Supreme Court)
- Nathaniel Persily (Stanford law professor)
- Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
- Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
- Eugene Volokh (UCLA law professor)
The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. — Alan Dershowitz (Aug. 18, 2014)
Free Speech Claims
James C. Ho (lead counsel)
The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions. “[H]e has every right to do just that,” they contend.
Core Political Speech: “A political official,” they add, “has the right to threaten to perform 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.’).”
Parade of Horribles: “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.”
Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”
Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”
After offering various other free speech challenges, the authors of the amicus brief point out that
Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.
Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”