The two-count indictment against Gov. Rick Perry defies common sense and should be dismissed “immediately if not sooner” as a violation of the U.S. and Texas constitutions, Perry’s legal team told the trial judge.
The wide-ranging attack argued that Perry’s criminal charges were based on state laws that are unconstitutional or, at the very least, were misinterpreted constituting an improper attempt to criminalize politics and limit gubernatorial power in “intolerable and incalculable” ways.
“Continued prosecution of Governor Perry on the current indictment is unprecedented, insupportable and simply impermissible,” said the 60-page filing by defense lawyer David Botsford.
The charges, stemming from Perry’s veto last year of state money for the Travis County district attorney’s office, also violate the Texas Constitution’s separation-of-powers clause by improperly inserting the courts into the functions of the executive and legislative branches, the petition said.
“Allowing a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government,” Botsford wrote. “It is no fault of the court that it has been asked to intrude on a political dispute; dismissal is the proper way to ensure that the judiciary plays no part in the separation-of-powers attack.”
The document filed Monday was a petition for a writ of habeas corpus designed for constitutional challenges but rarely filed before a trial.
Special prosecutor Michael McCrum will be given time to respond no deadline has been set and Senior District Judge Bert Richardson can schedule a hearing to gather additional evidence or rule based on the legal briefs.
Either way, the losing side can and most likely will appeal Richardson’s decision to the 3rd Court of Appeals in Austin, which is comprised of five Republican justices and one Democrat. The Court of Criminal Appeals, with an 8-1 advantage in Republican judges, also can be asked to review the 3rd Court’s decision.
Even with a request for expedited rulings, the appellate court process will take weeks, probably months, to navigate.
If Monday’s petition fails to void the criminal charges against Perry, Botsford indicated that he will file a motion to dismiss the indictments for failure to adequately state a violation of state law.
“Those arguments will not be addressed now, because pretrial habeas corpus is not the remedy for factual inadequacy, even when that inadequacy is as blatant as it is here,” Botsford told Richardson in the petition.
A Travis County grand jury indicted Perry 10 days ago on felony charges of coercion of a public servant and abuse of official capacity.
He is accused of threatening to withhold $7.5 million in state money to the Public Integrity Unit unless District Attorney Rosemary Lehmberg resigned after her high-profile arrest for drunken driving. Perry carried out that threat when Lehmberg did not step down