• Opinion

Prosecuting the governor for his veto violated the Texas constitution's separation of powers and veto provisions. And prosecuting him for his threat to veto violated the First Amendment, which generally protects officials' threats of political retaliation against other officials.

  • Opinion

Wednesday, I had the honor and pleasure of participating in the oral argument in the Rick Perry case before the Texas Court of Criminal Appeals, on behalf of amici from the left, the right, and points in between.

Why a legislature can't pass a statute authorizing a governor to be prosecuted for exercising his constitutionally specified veto power. (Not that the Texas Legislature likely intended to do that here.)

The broad "coercion" statute on which the prosecutor was relying violates the First Amendment, the Texas court says.

"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."

"Legislative immunity extends to any official who is acting in a legislative capacity," including (as the Texas Supreme Court has stated) mayors exercising their veto power, and more.

"The Texas Constitution vests in the Governor the absolute authority to veto appropriations bills.  The Governor is entitled to decide which laws he 'approv[es]' and which he disapproves -- without any constraint from the Legislature, or from special prosecutors."

Signed by, among others, Floyd Abrams, Alan Dershowitz, Michael McConnell, Ted Olson, and Ken Starr, as well as several noted Texas figures, both Democrat and Republican.

It's officially an "application for pretrial writ of habeas corpus"; denials of such applications can be appealed before trial.

The 1917 Gov. Ferguson impeachment is an interesting story, and has some parallels with the Gov. Perry prosecution -- but it shouldn't have any legal effect on that prosecution.

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