Lawyers for former Gov. Rick Perry fought Wednesday before the highest criminal court in Texas to finish off the 15-month-old indictment against him, while prosecutors argued it was far too early to let Perry off the hook.
At a critical two-hour hearing before the Texas Court of Criminal Appeals, both sides fielded a slew of hypothetical scenarios and skeptical questions as they tackled a ruling by a lower court earlier this year that dismissed one of the two felony charges against Perry, coercion of a public servant. The case stems from his threat to veto state funding for a unit of the Travis County district attorney's office unless its head stepped down following a drunken driving arrest.
Perry, who abandoned his second bid for the White House in September, did not attend the hearing, which could determine whether he stands trial in the case. The court was not expected to immediately rule.
Two issues were at play Wednesday. One was whether the remaining charge, abuse of power, should also be thrown out, effectively ending the 15-month-old case against Perry. The other issue was whether a statute should be reinstated that was struck down by the Austin-based 3rd Court of Appeals in July when it dismissed the coercion charge.
Eight judges listened as those issues were aired out in hour-long blocks split between David Botsford, the lead attorney on Perry's appeal, and State Prosecuting Attorney Lisa McMinn. Judge Bert Richardson, who oversaw Perry's case as a district judge and now sits on the Court of Criminal Appeals, did not take part in the Wednesday arguments.
As Perry's legal team has done from the get-go, Botsford cast the case as having serious implications for First Amendment rights and a chilling effect on elected officials down the line. The indictment, he said, violates three principles to which Perry was entitled as Texas' longest-serving governor: separation of powers, free speech and legislative immunity.
"The danger of allowing a prosecutor to do this is mind-boggling," Botsford said as he sought to convince the eight judges present for the arguments that they should immediately end the indictment.
McMinn argued more than once that the defense was "getting ahead of ourselves" with its discussion of dispensing with the indictment before trial, insisting that not all the facts are out. Botsford later countered that such disclosure is not required for the court to dismiss the remaining charge. The questions before the judges, Botsford said, are "issues of law, not issues of fact."
McMinn specifically sought to poke holes in Botsford's argument that Perry had legislative immunity because vetoes are legislative acts, an argument she said "strains credibility" when one considers, for example, a member of the Legislature cannot take the same action. In his remarks, Botsford argued Perry was clearly "wearing his legislative hat" and thus protected from prosecution, regardless of any threats that may have accompanied his veto.
In the first hour, McMinn faced far more questions — and more skepticism— from the judges than Botsford. Judge Kevin Yeary commented that McCinn seemed to be putting "a lot of eggs in the basket" in assuming that the state will be able to bolster its case as more facts come out. Yeary also repeatedly pressed McMinn to explain her reasoning beyond simply not wanting "to have the main event before the main event."
During the second hour, the judges' questioning was more evenly divided as McMinn argued the court should reinstate a part of the Texas penal code dealing with coercion. That statute was found unconstitutional by the 3rd Court of Appeals and could revive one of the charges against Perry if brought back.
McMinn argued that the statute was not too broad, despite the lower court's ruling, because it only applied to "coercive speech against public servants." Botsford disagreed, saying while that may have been the statute's aim, it was applying to a wider range of individuals in practice.
"The breadth of this statute is alarming," Botsford said, later adding that it penalizes "core political speech" like Perry's veto threat.
At least two judges took issue with Botsford's argument, saying he was wrongly addressing the statute only as it was applied to his client rather than in the context of the issue at hand: its overall constitutionality.
In brief remarks to reporters after the hearing, Perry lawyer Tony Buzbee said the defense was "very pleased with the arguments made." He also reiterated his belief the case has been an "unprecedented attempt at prosecution. It's a one-of-a-kind situation."
McMinn, meanwhile, acknowledged the extent of the questioning she faced from the judges, saying she was "able to make most of the arguments I wanted to make."
"There were a lot of questions the judges I had, so I couldn't get to everything," McMinn told reporters. "But the judges were very involved in the questioning, and it showed that they were paying attention to the issues and prepared and were very interested in the issues."
The arguments Wednesday were the latest chapter in a legal saga that began in August of last year when a Travis County grand jury handed up the indictment, accusing Perry of overstepping his authority when he tried to force the resignation of Travis County District Attorney Rosemary Lehmberg in 2013. She had been convicted of driving while intoxicated,
Among the earliest opponents of the indictment was Eugene Volokh, a prolific law professor at the University of California, Los Angeles. Botsford yielded 10 minutes of his time before the court Wednesday to Volokh, who told the judges the indictment "violates some basic principles of First Amendment law."
"The First Amendment protects political officials arguing with each other and sometimes threatening each other with political retaliation, just the normal hurly burly of politics," Volokh told reporters after the hearing. "This is what government officials do all the time."
Disclosure: Tony Buzbee was a major donor to The Texas Tribune in 2012. A complete list of Tribune donors and sponsors can be viewed here.