Some of the nation’s best-known lawyers and legal scholars will file a request in state district court Monday for a judge to dismiss felony charges against Gov. Rick Perry, saying the indictment against him is unconstitutional and criminalizes “ordinary political acts.”
The 14 participants include well-known Republicans — former U.S. Solicitors General Ken Starr and Ted Olson, for example — but also Democrats such as former state Supreme Court Justice Raul Gonzalez.
They also include law school professors from Harvard University, the University of California at Los Angeles and Stanford University. Additionally, Jeff Blackburn, founder and chief counsel of the Innocence Project of Texas, which has worked to free defendants who were wrongly convicted, is joining in the effort, according to the request, obtained Sunday by the American-Statesman and KVUE-TV.
“It doesn’t matter if we’re Republican or Democrat, conservative or liberal, we all believe in the Constitution, we all believe in freedom of speech, and we all believe that this prosecution is profoundly mistaken and must be stopped — right now,” said James Ho, a former Texas solicitor general who is coordinating the effort with Dallas attorney Prerak Shah and California lawyer Eugene Volokh.
Special prosecutor Michael McCrum, who is handling the case against Perry, did not return calls Sunday.
Senior District Judge Bert Richardson, a San Antonio Republican recently elected to the Texas Court of Criminal Appeals and who is presiding over the case, must decide how much consideration to give the brief, if any.
A Travis County grand jury in August indicted Perry on charges of abuse of official capacity and coercion of a public servant. The indictment resulted from his threat last year to Travis County District Attorney Rosemary Lehmberg to resign after her April 2013 drunken driving conviction or lose $7.5 million in funding to the state’s Public Integrity Unit housed in her office.
Lehmberg refused to step down, and Perry carried out the threat by using his line-item veto authority in the state budget.
Immediately after Perry’s indictment, a number of legal experts denounced the charges, including former Harvard Law Professor Alan Dershowitz, and Perry has used that to his public relations advantage. Dershowitz is part of the group asking Richardson to dismiss the case.
Perry’s legal team has since challenged the prosecution from a number of angles. His lawyers contend the charges violate Perry’s constitutional veto rights as governor and his right to free speech, asking the judge to dismiss the charges.
Late last week, McCrum filed a response to the request by Perry’s lawyers to have the case thrown out, accusing Perry of seeking special treatment by attempting to have the case dismissed before a jury hears it.
McCrum also said Perry’s conduct was not constitutionally protected.
“Mr. Perry cannot hide under the cloak of official authority in order to commit the crime of coercion of a public servant and abuse of office,” McCrum wrote.
It’s not clear when Richardson will rule on those issues.
In Perry’s first court appearance Thursday since the indictment, his defense lawyers separately challenged whether McCrum was properly appointed as a special prosecutor, an issue McCrum has deemed a “red herring.”
In the 24-page amicus brief to be filed Monday, the lawyers said they take no political position and that “reasonable people can disagree on the political tactics employed by both the governor and his opponents.”
It continued, “A political official has the right to threaten to engage in 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.”
The brief cited examples, including when in 2007 Republicans threatened to conduct hearings against then-U.S. Sen. Larry Craig, R-Idaho, unless he stepped down after a lewd conduct arrest, and when members of Congress and President Barack Obama called for U.S. Rep. Anthony Weiner, D-New York, to resign after sending suggestive photographs of himself to women on Twitter, and threatened to boot him from various committees.
“Any public official who seeks to drive criminally or disgracefully behaving officials out of office will now rightly fear that a district attorney from the other side of the political spectrum would prosecute him, just as Gov. Perry is being prosecuted today,” the document said. “If Gov. Perry is forced to endure a criminal trial, then the damage has already been done — even if he is ultimately acquitted.”
STATESMAN AND KVUE
This story is reported in partnership with KVUE-TV. For more of Tony Plohetski’s exclusive reports, visit MyStatesman.com or watch KVUE News.
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