August 16, 2014

More on the case of convicted criminal and drunkard Rosemary Lehmberg: State v Hanson “Coercion of a lawful act by a threat of lawful action is protected free expression” [Darleen Click]

Eugene Volokh points out the indictment of Gov. Rick Perry appears to fly in the face of Texas Court of Appeals precedent

The theory thus seems to be that Gov. Perry “threat[ened]” “to take … action as a public servant” by vetoing the appropriations in “attempt[ing] to influence [Lehmberg]” in “specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney for the County of Travis” (the last quote is from the indictment).

But — though I stress that I’m not an expert on this Texas statute — it seems to me that we’ve seen this movie before (okay, maybe playing in a small art house to a tiny audience). Here are the facts of State v. Hanson (Tex. Ct. App. 1994):

The state alleged that [County Judge Regina Hanson] intentionally and knowingly threatened to terminate the county’s funding of the salaries of a deputy district clerk and an assistant district attorney in an attempt to coerce the district judge into firing the county auditor and the county attorney into revoking a misdemeanant’s probation.

So we see here a threat to take action as a public servant in attempting to influence another public servant — a district judge — in specific performance of his official duty. What did the court say in Hanson?

Threats may portend either lawful or unlawful action. First Amendment protection is extended to the former but not the latter. Therefore, a criminal statute that seeks to punish threats must clearly distinguish between an actionable or true threat and protected speech. […]

Coercion of a lawful act by a threat of lawful action is protected free expression. See [Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir.1983)]. Could Judge Hanson threaten to use her lawful authority and prerogatives of office to coerce other public officials into taking lawful actions which she or the commissioners’ court deemed expedient or desirable, or should she refrain from doing so out of fear of prosecution? What is and what is not lawful conduct cannot be left to such conjecture. Section 36.01(1)(F) was not drawn with the narrowness and precision required when legislating within the realm of the First Amendment.

A preeminent purpose of the First Amendment is to guarantee free and unfettered political discussion within government and among the citizenry. Consequently, those who enter the political arena are fair game for sharp attacks inflicted by both the electorate and the elected. The hurly-burly world of courthouse politics is an arena where robust debate, often accompanied by blunt, caustic and even intemperate and vituperative language, is the by-product of public officials clashing over divisive issues. However, as long as the means are peaceful and their actions lawful, the boundaries of their political debate cannot be measured for constitutional protection by conventional standards of acceptability.

Freedom of speech must encompass the liberty of elected officials to discuss matters of public concern without prior restraint or fear of punishment. A vague statute that potentially could punish protected political debate violates due process because of its chilling effect on the exercise of that essential right.

And Perry responds —

Snow flurries spotted in Hell

Although some Democrats are calling for Texas Gov. Rick Perry’s (R) resignation after he was indicted by a grand jury on Friday, a number of left-leaning observers immediately panned the allegations as unimpressive.

Perry, an expected presidential candidate in 2016, is accused of “abuse of official capacity” and “coercion of [a] public servant” by publicly threatening to zero out a state prosecutor’s funding and then actually doing it. Several pundits, including former Obama campaign strategist David Axelrod, Clinton and Obama administration alum Jonathan Prince, Vox’s Matt Yglesias, and New York Magazine’s Jonathan Chait, wrote on Twitter they couldn’t see what the big deal was.

Jonathan Chait

They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. The conventions of reporting — which treat the fact of an indictment as the primary news, and its merit as a secondary analytic question — make it difficult for people reading the news to grasp just how farfetched this indictment is. […]

The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.

Posted by Darleen @ 5:47pm

Tags: ,

Comments (48)

  1. do we know how many grand juries it took to find the exact right mix of retards required to secure this indictment?

  2. all the grand juries

  3. Hate to admit it, but the hepatic one asks a relevant question. It took several different grand-jury seatings before Ronnie Earle could find one to indict DeLay.

  4. That depends on how many UT Austin students and/or faculty they could get on the GJ.

  5. 6 for DeLay until lucky number 7

  6. Perry opened up a can of whoop-ass on the alkie DA.

  7. clearly was not a good idea for Team Fascism to break this on a slow news day

  8. but yeah Perry is making Palin look like a cowardly wilting flower

  9. Finally, a GOP politician who knows how to come out swinging. Perry/Walker 2016.

    I especially liked the shot Perry took at Travis County, when Perry suggested that perhaps Travis County would decide to keep such a person in office.

    Perry’s speech wasn’t smooth, but he was obviously angry. And then, when Perry slammed the Feds for the border problems. Heh.

  10. From January 2012 to April 2013 — 15 months — Lehmberg made 59 purchases of alcohol at various Twin Liquors stores, a rate of nearly one purchase a week.

    She bought 76 bottles of alcohol. According to the receipts, Lehmberg prefers Ciroc vodka. Lehmberg routinely purchased 1.75 liter bottles of vodka, at a price of nearly $60 each. On occasions, she bought more than one 1.75 liter bottle of Ciroc at a time.


  11. > Palin look like a cowardly wilting flower<

    that's so 2008

  12. that was like six years ago

  13. ‘feets hates Palin and Perry because they are God-fearing Christians who have purpose-driven lives that make his seem small and petty.

    Hatey-hate-hating is no way to live, son. Get your synaptic constipation cleared up soonest, you’ll be a better man for it.

  14. If one needs the difference between this indictment and Palin’s legions of ethics complaints explained to them, one might not be smarter than a fifth grader.

  15. “I wholeheartedly and unequivocally stand behind my veto and will continue to defend this lawful action of my executive authority as governor,” Perry told reporters at a packed six-minute news conference near his office on the second floor of the Capitol.

    “We don’t settle political differences with indictments in this country.”

    …linked on Drudge

    I’m lucky enough to get copypasta on this Droid. HTML is an onerous drudgery.

  16. Clearly the judge who ruled in her favor might benefit from being investigated too. There seems to be an awful lot of cronyism involved with Drunkberg.

  17. the first consequence of the Perry indictment has been the rapid emergence of a consensus among R’s around the idea that we don’t surrender to lawfare I think

    and isn’t that interesting

  18. > among R’s around the idea that we don’t surrender to lawfare I think<

    team r sucks pikachu yellow

  19. team r sucks boehnerfag orange

  20. Greetings:

    Back in the joy of my youth in the Bronx of the ’50s and ’60s, a bit of the transmitted folk wisdom went, “If you’re in court, you’ve already lost. The question to be determined is “How much?”.

    Ergo, I’m always susceptible to the logic of “The process is the punishment.”

  21. what do you have against mccarthy/cantor slime?

  22. “The process is the punishment.”

    call a special session and impeach the clown then

  23. “Perry is making Palin look like a cowardly wilting flower”

    What a silly thing to say. What else is Perry going to do? Cop a plea?

  24. Pro tip. Facing a criminal indictment for a crime that carries a 100 years in prison is different than spending all your time and money dealing with scores of frivolous lawsuits.

  25. Now Lee — don’t confuse the anime toon with facts or perspective.

  26. here is indisputable proof about the young japanese girls

  27. And OF COURSE this news was dropped on a Friday so that Perry would have to spend the entire weekend defending himself, rather than simply going before a impartial judge and getting the whole thing quashed, using Hanson as the precedent.

    That enables the Dems to do their victory laps and get their fundraising e-mails spammed as much as possible, with the usual useful idiots demanding Perry resign merely for being indicted (with the charge being “he threatened to veto something from the State budget”*), while simultaneously claiming that the woman charged with upholding the law shouldn’t be judged for violating several of the very worst laws in such an egregious manner. After all, “she paid her debt to society”, didn’t she? I think her opponent in the next election has already gotten his campaign ads prepped and ready, and all he needs to do is hit YouTube…

    I would wonder whether she is still drinking and driving. But then, hypocrisy has never been a problem for Democrats, what with them not having any standards they are willing to live up to.

    * – Isn’t the public threat of a veto the whole point of instituting negotiations between the Executive and the Legislative Branches? “If you try to pass this law, I will veto it.” And the Legislature can try to override the veto if they want something bad enough. At least until the Republicans start using the same tactics Democrats have started using — lawfare, executive orders, unilateral declarations of unconstitutionality, refusal to defend laws they don’t like, et alia…

  28. This is maybe the craziest story of the last couple years.

    Not ha ha crazy or crazy for cocoa puffs crazy or but crazy like it turns out that Texas Dems really are smack dab in the middle of Colonel Kurtz territory.

    These people have seen a slug walk across the edge of a straight blade.

    “Have you ever considered any real freedoms? Freedoms from the opinion of others… even the opinions of yourself?”

  29. for rosemary

    door #1 a pallet of the $60 vodka and go away
    door#2 join aa and go away
    door #3 impeachment

  30. Completely off-topic: Rocky is on Amazon Prime streaming now.

    Turns out it’s worth a rewatch, really not what I remember from however many years ago I’d seen it last.

  31. >Turns out it’s worth a rewatch<

    do tell why

  32. Great little moments so far. He pulls his locker combination out of his hat after he can’t open it the first time. He’s hitting on the girl at the pet store and he’s saying the birds look like “flying candy”. The sketchy 70s scenery by the tracks and the docks. Burgess Meredith just recommended that he retires because he’s a “tomato” and everyone he’s ever beat was a bum. Apollo Creed doing his PSA where he says “be a thinker, not a stinker”.

    All these little moments keep coming every couple minutes.

  33. When he’s talking to the loan shark he works for he keeps putting on his nerd glasses and asking questions about how to spell people’s names or the specific details of his assignment so that he can make notes in his little notepad. He’s completely earnest.

  34. Hey all. I’m still the mayor of Grumbleton.

    But it seems to me that Perry needs to get the Texas Rangers into that Travis county DA’s office ASAP before they can cyber shred their e-mails and hard drive failure their way to plausible deniability. This kind of crap can’t stand or this is not a state anymore. I don’t want to live in a post-law rock throwing fight that used to be a state where locally connected attorneys and impaneled judges can make up wispy Kafka-esque ur-crimes on the fly..

  35. ****This latest video takes viewers through the dynamics of determining the issues involving tripping and slew-footing infractions which can merit the possibility of Supplemental Discipline.****

  36. Another drink?

    Clink! Clink!

  37. No wonder they’re championing her “cause”. If she were black, it would be a hat trick.

  38. Who knows what lurks in her genetic soup, Leigh…give ’em time.

  39. Shing it, DZ!

  40. She appears to be of pure East Texas cracker stock, Bob. She has that look of the piney woods about her.

  41. It doesn’t seem to me a conviction that’s been overturned on appeal can be called “secured.”

  42. I was perusing the dictionary and landed on the entry for “piece of work.”

    Guess whose photo?

  43. Piece of what? That’s not the word I would have put there.

  44. A lesbian huh? Well that makes sense. There’s no anger like a woman that doesn’t see the point to her own vagina.

    See the point. I crack myself up.

    Crack myself up, I kill me.

    Uh, this would be a good time to stop I think.

  45. And probably the smell too, Leigh.

    One of those types dated my cousin [he male, she female] who lives in Arlington. She had his child, but never married him – thank the Good Lord – although maybe she should have because he offed-himself and she might have gotten a few pesos.