Jeffrey Toobin explains "Why Rick Perry May Be Out of Luck"

"[C]ourts give prosecutors virtual carte blanche to bring some cases and ignore others. But, once they do bring them, courts respond to the argument that 'everyone does it' more or less the same way that your mother did. It's no excuse. So if Perry's behavior fits within the technical definition of the two statutes under which he's charged, which it well might, he's probably out of luck."

-- The New Yorker's Jeffrey Toobin, in his post
"Why Rick Perry May Be Out of Luck"

by Ken

It's always frustrating when a pol outside the right-wing orbit behaves in a way that enables the Right-Wing Noise Machine to go into cluck-cluck gloating mode, as a lot of left-of-center commentators seem to think Travis County (Texas) prosecutor Rosemary Lehmberg, who is responsible for the indictment of Texas Gov. Rick Perry for "abuse of official capacity" and "coercion of a public servant," for threatening to veto funding for her Public Integrity Unit (PIU) unless she resigned her office following her very public DUI arrest and guilty plea.

What all the commentators are saying, in accord with Governor Rick himself, is that it's "just politics," and Lehmberg's indictments will boomerang -- have already boomeranged, making a martyr of a popular pol who is seen as the victim of a political witch hunt.

First off, the bland assumption that what Governor Rick did is "just politics" seems to me kind of astonishing. I mean, is there really any question that he used the weight of his office in an attempt to coerce a public servant? Surely not even he would deny that, would he? And what the commentators seem to forget is that the form of the coercion was a threat, not against Lehmberg, but against the PIU.

Here of course Governor Rick can be expected to lie his putrid guts out, but even the daffiest and most dishonest right-wing cluck-cluckers surely understand that the PIU -- as one of the rare levers of power in the state that isn't in the safely corrupt hands of right-wing vandals -- was his actual target. To right-wingers, after all, "integrity" is just a commie-liberal plot to prevent their "we do whatever it takes" heroes from committing the kinds of immoral, indecent, and/or illegal acts that God put those right-wing heroes on His green earth to commit.

I for one am kind of glad to discover that there might actually be laws against what Governor Rick did.

I might also note that pols have been getting away the sort of stuff Lehmberg did since time immemorial. Of course it's harder in the YouTube Age. But it's also worth considering that she's such an odd-person-out in the Texas political ecosphere that we have no idea what she might have been able to get away with if she'd been part of the Lone-Star Old-Boy Network.

However, this would be resorting to the "everyone does it defense," which after all is what Governor Rick is doing as he oozes his slimy outrage at the indictments brought against him while he was just doing his job -- trying to protect Lone-Star Staters from this, well, person. His persecutors are just trying to criminalize politics, the sort of thing everyone does.

And this is where, The New Yorker's legal eagle Jeffrey Toobin is here to tell us in a new newyorker.com post, "Rick Perry May Be Out of Luck." He lays out the circumstances of the case, and acknowledges that Governor Rick "may have a point" when he says what he has done is just hardball politics. "But," says Jeffrey, "he also has a problem."

Prosecutors have wide, almost unlimited, latitude to decide which cases to bring. The reason is obvious: there is simply no way that the government could prosecute every violation of law it sees. Think about tax evasion, marijuana use, speeding, jay-walking—we’d live in a police state if the government went after every one of these cases. (Indeed, virtually all plea bargaining, which is an ubiquitous practice, amounts to an exercise of prosecutorial discretion.) As a result, courts give prosecutors virtual carte blanche to bring some cases and ignore others. But, once they do bring them, courts respond to the argument that “everyone does it” more or less the same way that your mother did. It’s no excuse. So if Perry’s behavior fits within the technical definition of the two statutes under which he’s charged, which it well might, he’s probably out of luck.

THE BOROWITZ REPORT IS ON GOVERNOR RICK'S CASE

THE BOROWITZ REPORT
FIGHTING WORDS FROM RICK PERRY



By ANDY BOROWITZ

AUSTIN (The Borowitz Report)—Lashing out at what he called the “Soviet-style” tactics of the indictments against him, Texas Governor Rick Perry said on Tuesday that the government had “grossly overstepped its traditional role of mandating transvaginal ultrasounds.”

Speaking to supporters in Austin, Perry blasted the indictments and called for a return to an era of limited government that focusses on requiring gynecological procedures.

“We are living in dark days indeed when the state of Texas is spending time and money probing its officials instead of its women,” he said, to thunderous applause.

AFTERTHOUGHT: THE PROSECUTORIAL
DISCRETION OF RICK P. AND BARACK O.

I was perhaps trying too hard to keep things (relatively) simple, and probably shouldn't have failed to mention that despite newyorker.com's title, "Rick Perry May Be Out of Luck," Jeffrey T's post is only partly about Rick Perry. In fact, he's intrigued by the way the same issue -- prosecutorial discretion -- lies as well at the heart of President Obama's past, present, and future decisions about what kinds of immigration violations to prosecute.

"The President," he says, "is relying on the same concept of discretion to push immigration reform, even though Congress has refused to pass a law to do so."

The legislative branch writes the laws, which define the classes of people who are subject to deportation. But it is the executive branch that decides which actual individuals it will pursue and deport. Over the past several years, the Obama Administration has used its discretion to allow more immigrants to stay. During the 2012 campaign, the President announced his Deferred Action for Childhood Arrivals (DACA), which amounted to a kind of administrative DREAM Act. It limited the number of deportations of people who had been children when they were brought illegally to this country, provided they meet certain other conditions. The legality of DACA has not been successfully challenged.

Prosecutorial discretion is not unlimited. The executive branch can refrain from prosecuting certain individuals, but it cannot, in theory, offer immunity to entire classes of law-breakers. Nor can a prosecutor only charge people of a certain race, or, for that matter, political party. But it’s hard to know who would have standing to challenge a failure to bring a criminal case or a deportation. The rules of standing are usually limited to individuals who have suffered a specific harm, and there’s no harm in not being prosecuted. (The New Republic has a useful primer on the subject. )

That sort of limitation on prosecutorial discretion is unlikely to help Rick Perry. His complaint is that the prosecutor is bringing one case too many, not too few. That claim, almost invariably, is a loser. So, it turns out, may be the soon-to-be-former governor.

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