On The Lawless Indictment of Rick Perry

Will Beat the Rap

Commentators on both sides of the political spectrum are condemning the recent indictment of Texas Governor Rick Perry, and indictment claiming that Perry violated two different criminal statutes.  For instance, Harvard Professor Alan Dershowitz decried the indictment as unwarranted criminalization of political differences.  Moreover, writing at ThinkProgress, Ian Millhiser thoughtfully suggests that the prosecution of Perry unduly interferes with the Governor's constitutionally-conferred veto power and thus "raises serious separation of powers concerns," even if Governor Perry's actions otherwise violate Texas law.  While the legislature could constitutionally ban the Governor from threatening to use a veto as part of a scheme to solicit a bribe, Millhiser writes, there is no allegation that Perry did anything of the sort.  By contrast, he says, a law that purported to criminalize Perry's actual conduct likely "cuts too deep into the governor's veto power," contrary to the Texas Constitution that confers this power.  On the other side of the spectrum, Senator Ted Cruz has echoed Millhiser's separation of powers argument.  According to Senator Cruz:  "The Texas Constitution gives the governor the power to veto legislation, and a criminal indictment predicated on the exercise of his constitutional authority is, on its face, highly suspect."    

Dershowitz, Millhiser and Senator Cruz are right to question the indictment on the grounds they invoke.  There is, however, a more mundane reason that this prosecution should end.   Simply put, the Governor's conduct did not violate either statute that the indictment invokes.  Thus, continued pursuit of this prosecution contradicts a fundamental attribute of the Rule of Law, namely, that the State may only exercise coercion against its citizens, including political officials, pursuant to intelligible rules announced in advance. Bending Texas law after the fact so as to render innocent conduct "criminal" violates this core principle of a free society.

The indictment alleges that Governor Perry threatened to veto an appropriation to support the Texas Public Integrity unit overseen by Travis County District Attorney Rosemary Lehmberg, who had been convicted of driving while intoxicated, unless Ms. Lehmberg resigned her position.  When Lehmberg declined to resign, Governor Perry carried out the veto threat.  (For a summary of the allegations, go here.)

The indictment claims that Governor Perry's actions violated two different criminal statutes.

The statute invoked by the first count of the indictment penalizes any public official who:

"misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the the public servant's custody or possession by virtue of the public servant's office or employment."

See Texas Penal Code -- Section 39.02

The statute invoked by the second count of the indictment penalizes any official who:

"influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty[.]" 

The actual and threatened veto did not violate the ordinary meaning of either statute.   Take the first count first.  The funds that the legislature attempted to appropriate were no doubt valuable. However, Governor Perry did not "possess" or have "custody" of such funds and thus could not have misused them within the ordinary meaning of the statute.   Moreover, the power to veto a bill is obviously not "property, services, [or] personnel." Thus, Governor Perry's actions can only violate this statute if the veto power is a "thing of value belonging to the government . . .[in Governor Perry's] custody or possession[.]" This interpretation seems strained to say the least.  The veto power is not a "thing."  Nor does it "come into an individual's possession or custody" any more than it can depart from such possession or custody.  Instead, the veto power is constitutionally-conferred legal authority that a governor may exercise at his or her discretion.

Basic principles of statutory construction confirm that treating the veto power as "a thing of value" would stretch the meaning of the statute too far.   The canon of statutory construction ejusdem generis teaches that a general word or phrase that follows an enumeration of two or more things applies only to persons or things of the same general kind or class specifically mentioned.  See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 199 (2012).  Thus, a statute referring to an "automobile, automobile truck, automobile wagon, motor cycle or any other self-propelled vehicle not designed for running on rails" does not refer to airplanes.  See McBoyle v. United States, 283 U.S. 25, 26-27 (1931).

The term "any other thing of value" is "a catchall at the end of an enumeration of specifics" (Scalia and Garner, Reading Law, at 199). This enumeration consists of the terms "property," "services," and "personnel," terms that provide context and thus limit the meaning of "thing of value."  See id.  These three terms all refer to items that have a potential market value or use separate and apart from their public function, thus giving rise to a risk of abuse by public officials. Think, for instance, of a government-owned automobile ("property"), which an official might convert to personal use, or government employees ("personnel"), whom an official might order to paint her house on the weekend. None of these terms, by contrast, refers to the discretionary exercise of governmental authority, such as the veto power, which has no value separate and apart from official functions. Thus, application of ejusdem generis confirms that the power to veto legislation is not a "thing of value" within the meaning of the statute.

The canon noscitur a sociis --- related words bear on one another's meaning --- points in the same direction.  See generally Scalia and Garner, Reading Law, at 195.  A statute that refers to "tacks, staples, nails, brads, screws and fasteners" does not refer to fingernails ("nails") or reliable and customary food items ("staples"). See id. at 196 (employing this example).  In the same way, a statute referring to items ("property, personnel and services") that have value or use separate and apart from their governmental function does not refer to governmental powers that do not.  Indeed, the statute includes an explicit exception providing that, say, "frequent flyer miles," "hotel discounts" and "food coupons" that employees earn while conducting state business are not "things of value" within the meaning of the statute, but only for reasons of administrative convenience.  This exception is only necessary if such items are otherwise "things of value," thus further bolstering the contention that the statute is designed to prevent wrongful use of items that have value separate and apart from their public function.  

What about the second statute?  Here again the plain meaning of the statute does not prohibit Governor Perry's conduct. The Governor urged Ms. Lehmberg to resign.  While this demand was an attempt to influence Ms. Lehmberg to step down and thus vacate her office, the indictment nowhere alleges (aside from rote recitation of the statutory language) that Governor Perry sought to influence her "in a specific exercise of [her] official power," a "specific performance of [her] official duty," or any "known legal duty."  The statutory language simply does not prohibit Governor Perry's conduct.

Some readers may find the language of the statutes quoted above more ambiguous and perhaps susceptible to a strained interpretation that prohibits Governor Perry's conduct.  Others might urge the courts to interpret the statutes expansively, so as to ban conduct they believe to be improper.   However, it is a cardinal rule of statutory construction that criminal statutes are to be construed strictly, with ambiguities resolved against the prosecution and in favor of individuals. As Chief Justice John Marshall (pictured above) explained in United States v. Wiltberger, 18 U.S. 76, 95  (1820).

"The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.  It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the Judicial Department.  It is the legislature, not the court, which is to define a crime and ordain its punishment."

Texas has long recognized this "rule of lenity" when interpreting criminal statutes.  As the Texas Court of Appeals explained in 1886:

"[B]efore a man can be punished, his case must be plainly and unmistakably within the statute, and if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the accused."

Murray v. State, 21 Tex. App. 620, 633, 2 S.W. 757, 761 (1886).

Presumably the Texas courts will agree with Chief Justice Marshall and decisions such as Murray and decline the indictment's invitation to rewrite Texas law in a manner that expands criminal liability and offends the rule of the law.

Competitive Federalism Punishing California

Economic Dynamo

Not So Much

A recent Op-ed by George Will adduces additional evidence vindicating a fundamental choice by those who framed and ratified the Constitution, namely, the decision to limit the power of the National Government and thus to divide regulatory authority between the National Government and the States.  According to James Madison's Federalist 51, this division of power between the central and various state governments, along with the separation of powers between judicial, executive and legislative branches at the national level, ensures that a "double security arises for the rights of the people."  Madison apparently recognized that competition between states for productive citizens and capital would deter a state from infringing on the rights of its citizens who, if dissatisfied with their state's laws, could move to other states.  Thus arose a system of competitive federalism, whereby each state can attempt to attract labor and capital by offering regulatory regimes and thus institutional frameworks most conducive to free market wealth creation and job creation. 

California has not been doing well in this competitive struggle as of late.  Once considered a land of opportunity, the state experienced a net outflow of citizens in 2008.  The state's unemployment rate currently stands at over 11 percent, one of the highest in the nation.  Will's Op-ed calls attention to part of California's problem, namely, a plethora of unduly burdensome regulations that inhibit the creation and expansion of businesses and thus job creation.  Will focuses on the plight of CKE, Inc., which owns the Hardees and Carl's Jr. fast food chains.  Each such restaurant creates 25 jobs, Will reports.  According to Will, these and other "California restaurants are governed by 57 categories of regulations."  Moreover, Will goes on to explain that:

"CKE has about 720 California restaurants, in which 84 percent of the managers are minorities and 67 percent are women. CKE has, however, all but stopped building restaurants in this state because approvals and permits for establishing them can take up to two years, compared to as little as six weeks in Texas, and the cost to build one is $100,000 more than in Texas, where CKE is planning to open 300 new restaurants this decade."

Simply put, California has apparently made it all but impossible to open a new restaurant, while Texas facilitates the creation of these businesses and the jobs they bring.  That is to say, California stands in the way of voluntary arrangements that improve the welfare of consumers who would voluntarily patronize new restaurants and the employees who would work there.  If California were to replicate similar regulatory strategies with respect to other industries, many California residents would have little choice but to move elsewhere to locate employment, and residents of other states would decline to immigrate to California in the first place.  It's not much of a stretch to surmise that a portion of California's high unemployment rate results from these sorts of regulations.

Of course, some regulation is critical to a well-functioning free market and the welfare of a polity's citizens.   No state would or should win the struggle for labor and capital contemplated by our constitutional design  by embracing the state of nature as its regulatory philosophy.  Even the most ardent libertarians properly endorse "police power" regulation that implements the ancient principle "Sic utere tuo ut alienum non laedas," viz. "use what is yours so as not to injure another's."  States that leave their citizens at the mercy of predatory commercial tactics, such as the sale of impure food or fraud will lose citizens and investment just as surely as those that impose unduly burdensome regulations that prevent market entry or otherwise interfere with bona fide economic liberty.  There is, however, no indication that, say, delaying market entry by two years is necessary to protect the public from such predatory behavior.  Instead, such permit requirements function as a barrier to entry, plain and simple, protecting incumbent firms and limiting consumer choice.

Unfortunately, the system of competitive federalism that is punishing California and rewarding Texas is not self-enforcing but is instead constantly under attack.  As federal regulatory power expands, the space for competition between states contracts, rendering such regulatory competition a less effective tool for enhancing the welfare of citizens.  If, say, the central government imposes one model of "health insurance reform," on every citizen in the nation, then states cannot compete with each other to provide reforms that meet the needs of their own citizens.  Moreover, if the national solution is suboptimal, citizens can only avoid the resulting reform by emigrating to another country, hardly a plausible option for most people.  Unfortunately, proponents of the most recent "health care reform," overlooked this downside of  a "one-sized fits all" centralized plan.