Yesterday, at 5:00 PM (CDT), Governor Goodhair (But No Brains) presented himself to the Travis County Criminal Justice Center for arraignment and a mugshot as an indicted felon who will face a criminal trial this fall. Goodhair (But No Brains) also posted bond of $20 after a plea bargain on the bond-amount between Special Prosecutor Michael McCrum and Goodhair's stable of lawyers paid by the taxpayers of Texas. This blogger wanted to see the sumbitch shackled at the wrists and ankles as he did the perp walk into the Justice Center. An orange jumpsuit with "Prisoner" stenciled across the back would have completed the dream. Goodhair (But No Brains) bellowed his mantra of belief in "The Rule Of Law" and this blogger hopes that "The Rule Of Law" results in a pair of guilty verdicts as Goodhair (But No Brains) is loaded aboard a Texas Department of Criminal Justice bus for the trip to The Walls Unit in Huntsville. As the fantasy continues, Goodhair (But No Brains) will be placed in the general population where he will spend his time holding his ankles while a hulking inmate drives home "The Rule Of Law." In the meantime, this blog presents a pair of contrarian essays in the midst of all of the bleating about poor, persecuted Goodhair (But No Brains). If this is (fair & balanced) hope for judicial retribution, so be it.
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[x The New Yorker]
Why Rick Perry May Be Out Of Luck
By Jeffrey Toobin
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Governor Rick Perry of Texas and President Barack Obama, strangest of bedfellows, are making similar discoveries about the scope of prosecutorial discretion. In short, it’s very broad.
Perry’s education on the subject is an unhappy one. Late Friday, the Texas Governor, who has about five months left in his term, was indicted on two counts: abuse of official capacity and coercion of a public servant. What those charges mean, though, is hard to say. The indictment itself [PDF] is just two pages and, to put it charitably, unelaborated.
The case has its origins in Perry’s long-running feud with Rosemary Lehmberg, a district attorney in Travis County, which includes Austin and represents an island of blue in the deep-red sea of Texas. Last year, Lehmberg was charged with drunken driving. She promptly pleaded guilty, which, in light of the YouTube videos of her sobriety test and her booking at the police station, was no surprise.
Lehmberg served several days in jail but declined to resign, so Perry decided to make the most of her difficulties. He said that, unless she resigned, he would use his power as Governor to veto $7.5 million in state money for her Public Integrity Unit, which had been hard at work prosecuting Texas pols, many of them Republicans. He could not, he said, support “continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”
What Perry did was obvious. The Governor was using his leverage to jam a political adversary—not exactly novel behavior in Texas, or most other states. But Democrats succeeded in winning the appointment of a special prosecutor, Michael McCrum, to investigate Perry’s behavior, and on Friday McCrum brought the hammer down. The threat to veto the money for the D.A. amounted to, according to the prosecutor, two different kinds of felonies: a “misuse” of government property, and a corrupt attempt to influence a public official in “a specific exercise of his official power or a specific performance of his official duty” or “to violate the public servants known legal duty.” (In the charmingly archaic view of Texas statutes, every public official is a “him.”)
Perry’s indictment has been widely panned, including by many liberals, as an attempt to criminalize hardball politics. (Vetoing things is, generally, part of a governor’s job.) Perry himself is all wounded innocence. “I intend to fight against those who would erode our state’s constitution and laws purely for political purposes, and I intend to win,” he said at a news conference. (It would be easier to feel sorry for Perry if he expressed similar concern about, say, the constitutional rights of those who were executed on his watch and with his support.)
So Perry may have a point, but he also has a problem. Prosecutors have wide, almost unlimited, latitude to decide which cases to bring. The reason is obvious: there is simply no way that the government could prosecute every violation of law it sees. Think about tax evasion, marijuana use, speeding, jay-walking—we’d live in a police state if the government went after every one of these cases. (Indeed, virtually all plea bargaining, which is an ubiquitous practice, amounts to an exercise of prosecutorial discretion.) As a result, courts give prosecutors virtual carte blanche to bring some cases and ignore others. But, once they do bring them, courts respond to the argument that “everyone does it” more or less the same way that your mother did. It’s no excuse. So if Perry’s behavior fits within the technical definition of the two statutes under which he’s charged, which it well might, he’s probably out of luck.
The President is relying on the same concept of discretion to push immigration reform, even though Congress has refused to pass a law to do so. The legislative branch writes the laws, which define the classes of people who are subject to deportation. But it is the executive branch that decides which actual individuals it will pursue and deport. Over the past several years, the Obama Administration has used its discretion to allow more immigrants to stay. During the 2012 campaign, the President announced his Deferred Action for Childhood Arrivals (DACA), which amounted to a kind of administrative DREAM Act. It limited the number of deportations of people who had been children when they were brought illegally to this country, provided they meet certain other conditions. The legality of DACA has not been successfully challenged.
Prosecutorial discretion is not unlimited. The executive branch can refrain from prosecuting certain individuals, but it cannot, in theory, offer immunity to entire classes of law-breakers. Nor can a prosecutor only charge people of a certain race, or, for that matter, political party. But it’s hard to know who would have standing to challenge a failure to bring a criminal case or a deportation. The rules of standing are usually limited to individuals who have suffered a specific harm, and there’s no harm in not being prosecuted. (The New Republic has a useful primer on the subject. )
That sort of limitation on prosecutorial discretion is unlikely to help Rick Perry. His complaint is that the prosecutor is bringing one case too many, not too few. That claim, almost invariably, is a loser. So, it turns out, may be the soon-to-be-former governor. Ω
[Jeffrey Toobin, a staff writer at The New Yorker since 1993, writes about legal affairs. Before joining The New Yorker, Toobin served as an Assistant United States Attorney in Brooklyn, New York. He also served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North (1991). Toobin's most recent book is The Nine: Inside the Secret World of the Supreme Court (2007). He graduated magna cum laude with a Bachelor of Arts degree from Harvard College and earned a Truman Scholarship. Thereafter, he graduated from Harvard Law School magna cum laude with J.D., where he was an editor of the Harvard Law Review.]
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The Joke That Is Rick Perry Is Not Funny
By Charles P. Pierce
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In a sane democracy, the idea of Rick Perry as president of the United States would be treated as the fringe enthusiasm of shoeless mouth-breathers. In 2012, the man could barely get from a subject to a verb without turning an ankle. Now, four years later, he puts on a pair of hornrims, and we are all supposed to buy him as legitimately the best person for the worst job in the world? I guess that's what the kidz at Tiger Beat On The Potomac think, anyway, because they broke a lot of rock telling us that Goodhair is going to ride out the latest ditch into which he's steered his bandwagon -- to wit, beating both Chris Christie and Scott Walker to the tape in the Who Will Be Indicted First? Derby. I will grant you that the indictment seems based on an arcane bit of Texas law that seems to criminalize Being A Dick to a disturbing extent. (However, if Perry really did offer another job to Rosemary Lemberg, the Travis County DA at the center of things here, in exchange for Lemberg's resignation as head of the Public Integrity Unit, then that's a whole 'nother thing.) I am less than compelled, however, by this argument.
The closest precedent dates back to 1917, when Gov. James Ferguson, who wanted the University of Texas to fire some faculty and staff of which he disapproved, was indicted based on his veto of funding to the university. Ferguson resigned before he was convicted. "There's not really any legal or political precedent for this. You've got to go back nearly a century," Jillson said.
Wait. Whoa there. In 1917, they brought exactly the same case against a sitting governor and that precedent is not a precedent because it goes back "nearly a century"? Is there a statute of limitations on relevance of which I am not aware, because it sure would have come in handy back in 1998, when the Republicans in the House impeached a sitting president despite the fact that action hadn't been taken for well over a century.
But that's not the real reason why Rick Perry as president should be a bitter joke in an evolved political culture. The real reason was outlined in shocking detail by an act of actual journalism committed over the weekend by the good folks at the Dallas Morning News. To put it briefly, being a worker in Rick Perry's Texas means that, every day, you put your life in your hands to an extent unheard of throughout the rest of the nation.
More workers die here than in any other state. On average, a Texas worker is 12 percent more likely to be killed on the job than someone doing the same job elsewhere, according to a Dallas Morning News analysis of federal data. That translates to about 580 excess workplace deaths over a decade. Construction has contributed mightily to Texas' booming economy. And the state's construction sites are 22 percent deadlier than the national average. Forty percent of Texas' excess death toll was among roofers, electricians and others in specialty construction trades. Such workers are sometimes treated as independent contractors, leaving them responsible for their own safety equipment and training. Many are undocumented immigrants. Government and industry here have invested relatively little in safety equipment, training and inspections, researchers say. And Texas is one of the toughest places to organize unions, which can promote safety. "There's a Wild West culture here," said University of Texas law professor Thomas McGarity, who has written several books about regulation. Texans often think, "We don't want some nanny state telling workers how to work and, by implication, telling employers how to manage the workplace," he said.
And the next thing you know, fertilizer plants explode and take entire towns with them.
Among The News' findings: California had 1,204 fewer deaths than expected; Texas had the highest rate of excess deaths among the 10 biggest states; there were 17 states with higher rates of excess deaths. But all of them had fewer than one-fourth of Texas' workplace deaths, which statistically skews the comparison. While oil and gas drilling is among the most dangerous industries in the U.S., Texas' fatality rate in that industry was 62 percent below average. There were 49 fewer deaths than expected.The most excess deaths in Texas were among specialty construction trades. There were 719 such fatalities, or 242 beyond what would have been expected.
Read the entire thing and remember that, outside of getting tough with the browns so people don't boo him like they did last time, Rick Perry is going to base his entire campaign for president on the economic performance of Texas while he was governor. What the Morning News describes is what Rick Perry is going to tell us he wants for the whole country an unregulated dystopia in which a certain number of unavoidable deaths on the job are the price we pay for the freedom enjoyed by our job creators to risk all our lives. That is the basis of Rick Perry's upcoming campaign. It is built on a foundation of anonymous bones. Ω
[Charles P. "Charlie" Pierce is a sportswriter, political blogger, author, and game show panelist. Pierce is the lead political blogger for Esquire, a position he has held since September 2011. He has written for Grantland, The New York Times, the Los Angeles Times, the Chicago Tribune, the Boston Globe Sunday Magazine, the Milwaukee Journal-Sentinel, Sports Illustrated, The National Sports Daily, GQ, and Slate. Pierce makes appearances on radio as a regular contributor to a pair of NPR programs: "Only A Game" and "Wait Wait...Don't Tell Me!" He graduated from Marquette University (BA, Journalism).]
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