What We Know, and What We Don’t

When law, politics, and the media collide in one colossal news story, the resulting discussions can be an unfortunate mess for those who prefer reasonable discourse to sound bites and shouting. But we are witnessing just such an event right now with the recent indictment of Texas Governor Rick Perry over his veto of funding for the Public Integrity Unit in Travis County.

Reactions from the political sphere were predictable. Some Republicans denounced the indictment as a politically-motivated sham.  Some Democrats demanded an immediate resignation. On the media front, the pundits weighed in, saying that the indictment was bad for Perry and good for Democrats. Or, that it was bad for Democrats and good for Perry.

But what of the legal front? Rather quiet there so far, because unlike politics and punditry in the information age, everything does not happen with lightning speed nor does it spread instantly across the country via cable TV and online forums.

And with good reason. Law is supposed to be deliberate and methodical so as to get it right, as in doing justice. So, let’s take a step back and evaluate – strictly from the legal perspective – what we know and what we don’t know at this very early juncture.

Gov. Perry claims that he has a constitutional right to veto the funding at issue. And he does, in the abstract. But the allegation, as stated by Texans for Public Justice, which filed the complaint, doesn’t take issue with that:

The governor rightly argues that he has absolute authority to veto the Public Integrity Unit’s budget. Texas law does not, however, grant him authority to threaten another public official—even one who behaved as wretchedly as Lehmberg did. Notably, we filed our criminal complaint before Perry vetoed Public Integrity funding. After all, it was the governor’s threats—not his veto—that broke Texas law prohibiting an official from using the power of his or her office to coerce another official into taking an action, such as resignation.

So who’s right? It’s simply too early too tell. Gov. Perry certainly knows what happened, and he is entitled to the presumption of innocence. The prosecutor knows what evidence he has, but we won’t know the full extent of that evidence until trial, if the case gets that far. As for the rest of us, we simply don’t know. All the talking heads and political types issuing dramatic statements can’t change that basic fact:

Yet the legal fight is far more complex, and won't be swayed by campaign videos or choreographed media events. While Perry's public strategy has been to make the case the governor had a responsibility to exercise his constitutional powers to remove an official who had lost the public's confidence, Perry's attorneys must make the case (that) the way in which he exercised his constitutional powers wasn't unlawful. Since the evidence presented to the 12 Travis County grand jurors is confidential, it's difficult for outside legal experts to speculate on the latter.

Difficult, indeed. Even those who filed the original complaint admit that they don’t know how all the facts:

Although we filed the complaint that triggered the Perry investigation, we don’t know exactly what evidence [the prosecutor] amassed for the grand jury. A trial would not only give Governor Perry his day in court but would let the public — and skeptical Beltway pundits — judge for themselves whether [the prosecutor] has the goods.

They are absolutely right. When both sides have presented their case, we will see for ourselves whether the indictment was legitimate or a political witch hunt, or something in between.
And that is as it should be. In fact, it’s exactly why we have judges and juries.
 

Posted: 9/3/2014 10:51:36 AM by On the Merits Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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