Constitution Check: Should criminal charges be used to settle a political dispute?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the controversy over Texas Governor Rick Perry and the role of the grand jury in the process.


“This is not the way we settle political differences in this country. You don’t do it with indictments. We settle our political differences at the ballot box.”

Texas Governor Rick Perry, in a television appearance August 17 on Fox News Sunday, reacting to his indictment two days earlier on public corruption charges by a state grand jury in Austin.

“I do not have a fancy law degree from Harvard or Yale or, for that matter, anywhere. I am but a humble country blogger. And yet, having read the indictment [of Perry], legal training of any kind seems unnecessary to grasp its flimsiness.”

Writer Jonathan Chait, on the website of New York Magazine on August 16, criticizing the charges against the governor.

“We have said all along it’s not about the veto. We believe [the governor] had the right to veto. It was his decision to veto it. It was about the intimidation before the veto. It was about him using the veto as a coercion tactic.”

Craig McDonald, director of Texans for Public Justice, on the CNN broadcast of State of the Union on August 17. His organization had filed an ethics complaint against the governor, contributing to the grand jury investigation of the circumstances leading up to a veto of funding legislation.


From the time of American’s constitutional founding, the grand jury has been a highly valued public institution. It is a kind of people’s tribunal, and when functioning at its best, it acts as a check upon excessive use of the government’s awesome power to accuse an individual of committing a crime. But it has been known to be used sometimes for blatant political purposes, and that is widely regarded as an abuse of the process.

It is never easy to detect when a particular grand jury has been abused by prosecutors because the entire work of such a jury – whether it is investigating potential crime, or actually making formal accusations of a crime – is carried out entirely in secret and thus it is not subject to public or press scrutiny.

The grand jury is made up of regular citizens, most of whom have no training in the law, so they may have few reliable ways to check the prosecutorial excesses, if there be any, by a district attorney in any given case. In fact, prosecutors are so seldom turned down, when they ask a grand jury to indict someone, that there is an old, sardonic saying (often attributed to a state judge in New York) that a grand jury “would indict a ham sandwich” if asked to do so. That hardly fits the Founders’ perception.

When the grand jury process seems to have been abused, there may be a constitutional remedy for the individual targeted by an indictment. The Constitution’s due process clause does apply, at least in extreme cases, as a check upon what is called “selective prosecution.” That phrase usually means a discriminatory use of criminal charging authority, or a singling out of a targeted person without a good reason. That, of course, is quite hard to prove.

The risk of selective prosecution, and the risk of abuse of a grand jury in such a case, is greater when a grand jury is asked to examine a matter of political controversy. Then, an indictment can look very much like a political counterattack, but one that involves the use of criminal charges as the weapon.

It is too soon to say whether that was what has just happened to Texas Governor Rick Perry, accused by a state grand jury of two criminal counts: “abuse of official capacity,” and “coercion of a public servant.” The grand jurors in Travis County – that is, in Austin – leveled the charges at the governor over his alleged attempt to force out the leader of a public corruption investigating unit by threatening to veto the funding of that unit’s operation. The governor wanted the head of that unit out after she was arrested for drunk driving, and he allegedly used his power to veto the unit’s budget allotment to get what he wanted. In the end, he did veto, but the unit’s head stood fast and held on to the job.

There is a long and quite bitter history of political conflict between Republican statewide leaders and the Democratic leaders of local government entities in Austin, and the Perry veto incident is not the first to draw complaints that local prosecutors have used the criminal law to make political points.

The political heat that has arisen over this incident has made it difficult to focus on the specifics of what the grand jury did. Too much of the public discussion has focused on the prosecutors’ supposed political motive. And there is already a good deal of confusion, in public discourse, about whether the grand jury accused the governor of an illegal use of the veto, or an illegal use of a threat of a veto, or both.

Count I does focus on the veto, but that count specifically charged Perry with doing so “with intent to harm another.” That seems to be saying more than that he allegedly misused authority that he clearly had – to say no to a specific piece of legislation. Count II is the coercion charge, and that is aimed at the threat of the veto, with the alleged intent to influence how the leader of the public corruption agency carried out her duties. And that seems to be saying more than that he merely issued a veto threat.

Of the two, the second appeared to be the more serious, because that amounts to an accusation that the governor was attempting to close down a governmental activity, not just to get its top official to step aside.

If the indictment survives a predictable motion to dismiss by the governor’s lawyers, early in the pre-trial process, the governor will have the option of mounting a full legal defense, with his legal (and maybe political) fate in the hands of the regular citizens who get called for that jury duty. That will be an entirely open process, subject to close public scrutiny.

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