Prosecutors have too much imagination.

By Pat Nolan

“When I use a word, it means just what I choose it to mean — neither more nor less.”
— Humpty Dumpty in Alice through the Looking Glass

The indictment of Governor Rick Perry should send a shudder down the spine of every American. The vindictive special prosecutor used Humpty Dumpty’s logic to say statutes say the opposite of their plain meaning in order to charge the governor with a crime for exercising his lawful veto. If a popular sitting governor can be indicted on such a flimsy basis, then every one of us is vulnerable.

The facts are straightforward: the police arrested Rosemary Lehmberg, the Travis County DA, after finding her in her car with a drained bottle of vodka. Her blood alcohol content was almost three times the legal limit. During her arrest and booking, she screamed, beat on the jail cell door, and had to be forcibly strapped into a restraint chair with a spit guard placed over her mouth to protect the deputies. She pleaded guilty.

Leaders of both parties urged her to resign. She refused. The governor then said that her embarrassing actions had cost her the credibility needed to be a prosecutor, and that he would veto special state funding for her office if she didn’t resign. She still refused, and the governor exercised his veto.

A special prosecutor obtained a criminal indictment of Perry on two charges: “abuse of official capacity” and “coercion of a public servant.” A quick look at both statutes shows how perversely he twisted their meaning to manufacture a crime out of the governor’s veto.

Abuse of official capacity requires misuse of state property, such as taking an official vehicle for personal use, or depositing government funds into a personal account. Obviously, the governor never had possession of the funds intended for Lehmberg’s office, and he certainly didn’t divert them for personal gain.

As for the second count, actions like the governor’s veto are unambiguously excluded from being considered “coercion of a public servant.” The statute explicitly exempts “official actions taken by a member of the governing body [of a governmental entity].”

It is clear that neither statute applies to Governor Perry’s veto. Obviously the special prosecutor decided that he wanted to indict Perry, and then scoured the lawbooks to find two statues that could be stretched to fit.

Governor Perry isn’t the only victim of prosecutors who invent novel theories to find crimes where none exist. Take Gibson Guitar, whose factories were raided by a SWAT team from the Department of Interior. (Who knew they had a SWAT team?) Gibson’s alleged crime? Finishing rosewood fretboards imported from India with the approval of the government of India. However, federal prosecutors alleged that despite the government’s approval, Indian law required that the fretboards be completed by workers in India. In a perverse interpretation of the anti-poaching statute, the U.S. applied Indian domestic law to an American business.

Other examples of innocent conduct deemed criminal using Humpty-Dumpty-like logic abound. There are stories of landowners who have been prosecuted for “despoiling wetlands” after filling in a puddle or two on their properties far from any stream, river, or lake.

In 2000, a group of lobstermen was charged with packing lobsters in plastic bags rather than cardboard. This was completely legal under U.S. regulations, but the feds prosecuted the men — and won eight-year prison sentences — for allegedly violating the regulations of Honduras, even after Honduran authorities told them that their regulation was no longer enforced.

In the late ’90s, a Florida county commissioner was imprisoned for “honest services fraud” because she lied about living with her boyfriend. This lie was not told in a public hearing — but to a reporter. Yet the federal prosecutor stretched the elastic phrase “honest services” to convict her. Justice Antonin Scalia criticized the way prosecutors apply the honest services fraud statute — “This expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials” — and the Supreme Court later limited its use. But we are all at risk that similarly absurd legal interpretations can be used to obtain an indictment for conduct that no one in their right mind would believe is criminal.

“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

That is indeed the question. Are we to be a free people, or will such prosecutions make the government our master?

Contributor

In a new American Spectator article, Pat Nolan, a signatory to the Right on Crime initiative, notes that the prosecutor in the Rick Perry case has flouted the law to gain an indictment.  No citizen is safe when prosecutors become persecutors. Mr. Nolan is a former member of the California assembly. He is currently director of the American Conservative Union’s Center for Criminal Justice Reform