Gov. Goodhair Perry Indictments tossed. Charges unconstitutional

[Beowulf]

Surprising few, probably:

In 2013, Travis County (Tex.) District Attorney Rosemary Lehmberg was convicted of drunken driving, but refused to resign. Then-Gov. Rick Perry (R) threatened to veto $7.5 million in appropriations for the public integrity unit in the Travis County DA’s office unless Lehmberg resigned. When Lehmberg refused to resign, Perry made good on his threat.

But Perry was then indicted for both the veto and the threat of the veto. The veto, the indictment alleged, constituted misuse of funds in the governor’s custody. The threat, the indictment alleged, constituted attempted coercion of a public servant. The case eventually made its way to the Texas Court of Criminal Appeals — Texas’s supreme court for criminal cases — which this morning held by a 6-to-2 vote that both charges were unconstitutional:

1. The veto charge was brought under a statute that made it a crime for a public servant to, “with intent to obtain a benefit or with intent to harm or defraud another, . . . intentionally or knowingly” “misuse[] government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” But the court concluded that applying this statute to a governor’s veto violated the Texas constitution’s separation of powers and veto provisions:

A. “The [Texas] Constitution does not purport to impose any restriction on the [governor’s] veto power based on the reason for the veto, and it does not purport to allow any other substantive limitations to be placed on the use of a veto.” Therefore, “The Legislature cannot directly or indirectly limit the governor’s veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.” And other state courts were right to say that “courts may not examine the motives behind a veto or second-guess the validity of a veto.”

B. The misuse-of-government-property charge might also be statutorily unsound, among other things because “there are serious questions about . . . whether the Governor could be said to exercise custody or possession of funds appropriated by the Legislature to a different government entity, and whether the Governor could be said to exercise custody or possession of funds authorized in a portion of a bill that (because of the veto) never became law.” But there is no need to decide these questions, because “if the statute criminalizes the charged conduct, as the State claims, it would unconstitutionally infringe on the Governor’s veto power.”

C. Of course, “a governor could be prosecuted for bribery if he accepted money, or agreed to accept money, in exchange for a promise to veto certain legislation.” But that is because, in a bribery case, “the illegal conduct is not the veto; it is the agreement to take money in exchange for the promise.”

2. The criminal coercion charge was brought under a statute that made it a crime to,

“by means of coercion,” including “a threat . . . to take or withhold action as a public servant or to cause a public servant to take or withhold action,”
“attempt to influence a public servant in a specific exercise of his official power or a specific performance of his official duty,”
with an exception for when “the person who . . . attempts to influence the public servant is a member of the governing body of a governmental entity, and . . . the action that influences or attempts to influence the public servant is an official action [including deliberations by the governing body of a governmental entity] taken by the member of the governing body.”

The court concluded that this portion of the statute violated the First Amendment:

A. The coercion statute, when applied to threats to take government action as means to pressure someone into taking government action, is unconstitutionally overbroad, and thus violates the First Amendment. It covers a substantial amount of constitutional protected speech, such as:

“a threat by the governor to veto a bill unless it is amended,”
“a threat by the governor to veto a bill unless a different bill he favors is also passed,”
“threat by the governor to use his veto power to wield ‘the budget hammer’ over a state agency to force necessary improvements,”
“a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated,”
“a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy,”
“a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached,” or
“a threat by a trial judge to quash an indictment unless it is amended.”

Indeed,

Another indication of the pervasive application that the statute has to protected expression is that the last example we listed above occurred in this very case. Concluding that quashing Count II [the coercion count] would be premature, the trial court ordered the State to amend Count II of Governor Perry’s indictment. But a trial court has no authority to order the State to amend an indictment; the State has the right to stand on its indictment and appeal any dismissal that might result from refusing to amend. The trial court’s order that the State amend the indictment was, in practical terms, a threat to quash Count II if it were not amended. And the trial court’s exact words are of no moment because the statute refers to a threat “however communicated.” The regular and frequent violation of the statute by conduct that is protected by the First Amendment suggests that the statute is substantially overbroad.

B. The coercion statute can’t be upheld on the theory that the government may restrict speech by its employees. “When government seeks criminal punishment, it . . . acts as sovereign and not as employer,” and thus can’t take advantage of the extra latitude it has to fire or discipline employees based on their speech.

3. The case is thus, practically speaking, over. It’s possible that the special prosecutor will ask the U.S. Supreme Court to review the holding that the coercion is facially unconstitutional, since that rests on the federal First Amendment. But it’s extremely unlikely that the high court would want to review such a holding, or that the special prosecutor would even seek review. (The holding on the veto charge is a matter of state law, on which the Texas Court of Criminal Appeals has the final word; the interpretation of what the coercion statute actually covers is also a matter of state law, though the question whether, as interpreted, the statute violates the First Amendment is a matter of federal law.)

Original thread

[Simon_Jester]

My opinion:

1a) is valid if and only if the Texas constitution explicitly says the veto power is not to be infringed on and Governor Perry could veto laws for whatever reason he damn well pleased, including his own political ends. There is no similar language in the US constitution's Article 1, Section 7, but I'm not sure about Texas.

1b) is nonsensical if the Governor is using his veto power to withdraw funding for an entity that would otherwise continue to exist. He can't be in custody of the funds for an organization that will never be funded (e.g. the Department of Underwater Basketweaving), but he can certainly be in custody of the funds and budget documents for an organization that is.

What would they do if some clerk had screwed up the wording on a bill for the continuing funding of a state organization, and consequently Perry had vetoed it? That clerk would be in trouble, and could not defend themselves by saying "well, it doesn't matter, the organization won't exist now because Perry vetoed it, so I am no longer in custody of its funding request!" Being in custody of the budget is not the same as being in custody of the money, and Perry was screwing around with the budget, not the funds.

1c) might actually be a valid argument in Texas depending on their bribery statutes. It might be illegal in Texas for a government official to agree to do anything in exchange for money or other considerations, even if they don't actually do it... In which case they'd be right that Perry CAN do stupid things for his own personal reasons and have that NOT be illegal, while agreeing to do such things for anyone else would be legal.

2a) is relevant insofar as the statute could be used to restrain government officials from the normal course of their duty... but I would argue that requiring the resignation of an elected official, and using the threat of defunding the anti-corruption unit that investigates the state capital, isn't normal course of Governor Perry's duties.

[Grumman]

Lehmberg is corrupt - she was recorded on video trying to use her position as DA to get out of the DUI arrest, with at least the implied threat that she would get the officers involved sent to prison if they didn't release her. A public integrity unit under the control of a corrupt DA is worse than useless - it's a tool for corruption, not against it - and Perry was right to defund it if it remained under the control of the corrupt DA.

[Gerald Tarrant]

Lehmberg is corrupt - she was recorded on video trying to use her position as DA to get out of the DUI arrest, with at least the implied threat that she would get the officers involved sent to prison if they didn't release her. A public integrity unit under the control of a corrupt DA is worse than useless - it's a tool for corruption, not against it - and Perry was right to defund it if it remained under the control of the corrupt DA.

I agree with you on the particulars that Lehmberg's behavior was unacceptable for a public prosecutor, but plenty of court cases aren't about the guilt or innocence of the people involved but what you could call "methodology" of government behavior; for instance convictions can be tossed out for incorrect warrants or things like that. The question here doesn't really have anything to do with Lehmberg, it's more a question of whether the Governor's "methods" were constitutionally sound, I think Simon Jester's critique is the best way to interpret this thing.

Accordingly, the stuff I agree or disagree with Simon on:

My opinion:
1a) is valid if and only if the Texas constitution explicitly says the veto power is not to be infringed on and Governor Perry could veto laws for whatever reason he damn well pleased, including his own political ends. There is no similar language in the US constitution's Article 1, Section 7, but I'm not sure about Texas.

I disagree with you on this, here's a related clause in the "Executive Article (Article 4 of Texas Const.).

VACANCIES IN STATE OR DISTRICT OFFICES. (a) All vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law by appointment of the Governor.

Here's the section for a veto

Sec. 14. APPROVAL OR DISAPPROVAL OF BILLS; RETURN AND RECONSIDERATION; FAILURE TO RETURN; DISAPPROVAL OF ITEMS OF APPROPRIATION. Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval. If he approve he shall sign it; but if he disapprove it, he shall return it, with his objections, to the House in which it originated, which House shall enter the objections at large upon its journal, and proceed to reconsider it.

(Section 14 in the previous link).
Section 15 is similar,

[E]xcept on questions of adjournment, shall be presented to the Governor, and, before it shall take effect, shall be approved by him

What's important here is that the first section has a qualification on the power of the Governor, but section 14 defines the Governor's power without qualification, and section 15 offers only a specific exception (the Governor can't veto a motion to adjourn is my reading). One particular method of reading this is to note that the writers (or amenders) of section 12 specifically restricted the Governor's power of appointment, and section 14 does not contain that restriction, therefore it was not meant to be included in section 14. There are of course draw-backs to this method of analysis, I'll leave them as an exercise for the reader.

1b) is nonsensical if the Governor is using his veto power to withdraw funding for an entity that would otherwise continue to exist. He can't be in custody of the funds for an organization that will never be funded (e.g. the Department of Underwater Basketweaving), but he can certainly be in custody of the funds and budget documents for an organization that is.

The last line of section 1B is relevant here, the court is holding that there aren't really restrictions on the veto power:

But there is no need to decide these questions, because, "if the statute criminalizes the charged conduct, as the State claims, it would unconstitutionally infringe on the Governor’s veto power."

What would they do if some clerk had screwed up the wording on a bill for the continuing funding of a state organization, and consequently Perry had vetoed it? That clerk would be in trouble, and could not defend themselves by saying "well, it doesn't matter, the organization won't exist now because Perry vetoed it, so I am no longer in custody of its funding request!" Being in custody of the budget is not the same as being in custody of the money, and Perry was screwing around with the budget, not the funds.

I think the decision that was handed down agrees with you on this, if you note in 1B, a question is raised as to whether or not Perry had custody of the funds, if he didn't then the statute doesn't apply to him. The court noted that it's irrelevant though, because their reading was that the veto power can't be restrained by statute, because it's unrestrained in the Constitution.

I agree with you on 1c

2a) is relevant insofar as the statute could be used to restrain government officials from the normal course of their duty... but I would argue that requiring the resignation of an elected official, and using the threat of defunding the anti-corruption unit that investigates the state capital, isn't normal course of Governor Perry's duties.

I'm mostly agreeing with you on this,

Sec. 25. CUSTODIANS OF PUBLIC FUNDS; BREACHES OF TRUST AND DUTY. The Legislature shall pass efficient laws facilitating the investigation of breaches of trust and duty by all custodians of public funds and providing for their suspension from office on reasonable cause shown, and for the appointment of temporary incumbents of their offices during such suspension.

I'm partially agreeing with you here. I think you can make an arguable case that it wasn't the governor's business, and that sticking his nose in here is troubling, because the Legislature's enumerated powers include making laws to remove public officials for cause. There's been a troubling trend in the Federal government of an accumulation of Executive power, and seeing it going on with a governor isn't encouraging. The reason I don't completely agree with you, is that I'm agreeing with the court's assertion that the veto power doesn't have restrictions on it. So I think Perry's use of a veto in Lieu of statutory methods of removing Lehmberg, isn't a good precedent, but as best I read it, it's a legal use.

[Ralin]

Surprise surprise, giving the governor of Texas wide-ranging veto powers to be used at his discretion was a bad idea. Pity that the DA in question decided to undermine her party and her politics by driving drunk and trying to drunkenly pull rank when she was caught. Because that's an AWESOME pretext for the governor to exercise that discretion to demand her removal.

Honestly I'm still amazed people thought Perry would be convicted.

[Simon_Jester]

Eh, never really expected a conviction. It has long been established to my satisfaction that the people, government, and judiciary of Texas actively want a corrupt government, so long as that corruption is only being used to beat up on the wrong people.

Their death penalty procedures alone would establish this. While I don't share the widespread belief that the death penalty is automatically wrong, it is definitely wrong to give a defendant with an IQ of 80 a public defender who doesn't do due diligence and sleeps through the trial, and then seriously maintain that "justice is served" by putting them to death.

---

Lehmberg is corrupt - she was recorded on video trying to use her position as DA to get out of the DUI arrest, with at least the implied threat that she would get the officers involved sent to prison if they didn't release her.

I'm more than a little unclear on whether she kept trying to use her position as DA to get out of the arrest after sobering up.

If she said "don't arrest me, I'm a DA" while drunk, I'm inclined to partially discount it as "people say dumb shit when drunk," especially if she actively recanted that when sober, which I'm given to understand she did. Making a threat to get people in trouble when drunk doesn't automatically mean you are a corrupt person under normal working conditions, any more than saying you'll "kick someone's ass" when drunk makes you a violent person under normal conditions.

You'd have a hard time proving criminal intent there.

Is there any evidence that Lehmberg used her position for personal advantage when sober, or for that matter succeeded in using it for personal advantage at all given that she didn't actually get out of the DUI arrest?

A public integrity unit under the control of a corrupt DA is worse than useless - it's a tool for corruption, not against it - and Perry was right to defund it if it remained under the control of the corrupt DA.

The flip side of this is that that involves the governor trying to either defund the anti-corruption unit that would be responsible for investigating HIM and his own associates, or replace its elected head with a person he appointed.

Not like there isn't a conflict of interest there too.

---

Accordingly, the stuff I agree or disagree with Simon on:

My opinion:
1a) is valid if and only if the Texas constitution explicitly says the veto power is not to be infringed on and Governor Perry could veto laws for whatever reason he damn well pleased, including his own political ends. There is no similar language in the US constitution's Article 1, Section 7, but I'm not sure about Texas.

I disagree with you on this, here's a related clause in the "Executive Article (Article 4 of Texas Const.).

VACANCIES IN STATE OR DISTRICT OFFICES. (a) All vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law by appointment of the Governor.

That just means the governor fills vacancies; it doesn't mean he's empowered to create vacancies by pressuring elected officials to resign under threat of having government departments that investigate his own office defunded.

Firing district attorneys isn't his job. It's a job for the judiciary, the electorate, or both. Do they have a right to kick Lehmberg out? Definitely. But until they see fit to do so in an orderly manner, the governor holding the anti-corruption squad hostage and trying to appoint their a stooge isn't an acceptable substitute for that orderly firing process.

Here's the section for a veto

Sec. 14. APPROVAL OR DISAPPROVAL OF BILLS; RETURN AND RECONSIDERATION; FAILURE TO RETURN; DISAPPROVAL OF ITEMS OF APPROPRIATION. Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval. If he approve he shall sign it; but if he disapprove it, he shall return it, with his objections, to the House in which it originated, which House shall enter the objections at large upon its journal, and proceed to reconsider it.

(Section 14 in the previous link).
Section 15 is similar,

[E]xcept on questions of adjournment, shall be presented to the Governor, and, before it shall take effect, shall be approved by him

What's important here is that the first section has a qualification on the power of the Governor, but section 14 defines the Governor's power without qualification, and section 15 offers only a specific exception (the Governor can't veto a motion to adjourn is my reading). One particular method of reading this is to note that the writers (or amenders) of section 12 specifically restricted the Governor's power of appointment, and section 14 does not contain that restriction, therefore it was not meant to be included in section 14. There are of course draw-backs to this method of analysis, I'll leave them as an exercise for the reader.

As an analysis of Texas law I will not dispute it.

However, it's an argument for Texas having a lousy constitution- because in this case he's willfully sabotaging the normal function of government with his veto, in a way that could be very easily manipulated to enable the governor to get away with corruption.

If I were writing a constitution I'd include a clause along the lines of "exercise of constitutionally authorized powers CAN be restricted by statute in case of corruption or abuse of power for personal or political gain, as defined [blah blah blah]."

[Patroklos]

If she said "don't arrest me, I'm a DA" while drunk, I'm inclined to partially discount it as "people say dumb shit when drunk," especially if she actively recanted that when sober, which I'm given to understand she did. Making a threat to get people in trouble when drunk doesn't automatically mean you are a corrupt person under normal working conditions, any more than saying you'll "kick someone's ass" when drunk makes you a violent person under normal conditions.

You'd have a hard time proving criminal intent there.

Is there any evidence that Lehmberg used her position for personal advantage when sober, or for that matter succeeded in using it for personal advantage at all given that she didn't actually get out of the DUI arrest?

This is a ridiculous standard. Under your logic she shouldn't be punished for the DUI itself because sober Lehmberg probably wouldn't engage in that behavior either. She didn't hurt anyone, no harm no foul right?

You can't come back from that. Arguably her indictment is the act of corruption here, using her official powers to avoid the consequences of her actions. Indeed, using her powers to vindictively punish those holder her to account. Guess who would be in charge of prosecuting her for public corruption btw...

[Ralin]

If she said "don't arrest me, I'm a DA" while drunk, I'm inclined to partially discount it as "people say dumb shit when drunk," especially if she actively recanted that when sober, which I'm given to understand she did. Making a threat to get people in trouble when drunk doesn't automatically mean you are a corrupt person under normal working conditions, any more than saying you'll "kick someone's ass" when drunk makes you a violent person under normal conditions.

You'd have a hard time proving criminal intent there.

Is there any evidence that Lehmberg used her position for personal advantage when sober, or for that matter succeeded in using it for personal advantage at all given that she didn't actually get out of the DUI arrest?

This is a ridiculous standard. Under your logic she shouldn't be punished for the DUI itself because sober Lehmberg probably wouldn't engage in that behavior either. She didn't hurt anyone, no harm no foul right?

Seriously. Once you're in "Drove drunk and openly pulled rank to get out of it" territory you're well past the point of quibbling over whether that's "characteristic" of her. It's what she did, and that's more than enough to discredit her without debating whether it respects the essence of her soul or not.

You can't come back from that. Arguably her indictment is the act of corruption here, using her official powers to avoid the consequences of her actions. Indeed, using her powers to vindictively punish those holder her to account. Guess who would be in charge of prosecuting her for public corruption btw...

Who did she punish? Hadn't heard she acted on the threats once she sobered up.

[Simon_Jester]

Uh, Patroklos...

Is Lehmberg the one who placed that indictment? If so, fair point; if not, and I'm pretty sure she isn't, then your second paragraph is random, inane bloviating.

Because it sounds as if you think Lehmberg is the one who indicted Perry for demanding Lehmberg's resignation in the first place.

...

As to your first paragraph- the crime committed in a DUI is knowingly rendering yourself unfit to drive and deciding to drive anyway. The mere fact that you got drunk and climbed in a vehicle is proof of intent to commit that crime. ed

So that's one extreme- a case where the mere fact that you were found committing the crime is proof you seriously intended to commit it.

By contrast, if you get drunk and yell "you rotten jackass, I'll kill you!" then sit back down, that is not attempted murder. You had nothing like a real intention to commit murder. You didn't try to commit the murder. You didn't do anything that could plausibly have led to a murder.

That's the other extreme- a case where your declaration that you were about to commit a crime was transparently false and irrelevant and there is no evidence you actually intended to commit the crime or pursued any action that might lead to an illegal result. No way to prove criminal intent, no grounds for sending someone to jail.

In this case, Lehmberg declared intent to abuse her office, under circumstances where the threat was moderately credible BUT where she was clearly not in a functional state of mind. She did not, in fact, actually carry out any of the threats, and recanted the threats when her mental equilibrium was restored.

Very poor grounds on which to establish criminal intent.
_______________________

Now, you can separately argue that Lehmberg making "I'm the DA, let me go" demands after already committing a crime that shows disregard for the law enhances the degree of her disgrace. I'd agree with that. There are ways she could have handled her arrest that would have left her considerably less disgraced than the route she actually took.

But being disgraced or disgraceful is not in itself a crime. It's grounds for throwing an elected official out of office, it might be grounds for a firing by the lawfully appointed superior of a disgraced official. It certainly isn't grounds to threaten to shut down a 7.5 million dollar government program in order to compel an elected official to resign.

Lehmberg should have resigned after the incident. But it is not appropriate to call her "corrupt" without separate evidence of her actually, intentionally, abusing her office for gain.

Nor is it the governor's place to decide that firing this particular district attorney, the one who might be investigating him for corruption charges, takes precedence over allowing the anti-corruption task force to continue operating.

Maybe you should be looking into the problems associated with having elected DAs in Texas? This issue would never have come up if the DAs already served at the pleasure of the governor's office, which seems to be what you want to be the case.

[Ralin]

Would we seriously be having this conversation if the DA was a Bible-banging Republican with a history of successful sodomy prosecutions as campaign credentials and the governor was the newly elected Cowboy Mini Sanders?

Because I don't think that we would. I really do not think that we would.

[Patroklos]

Who did she punish? Hadn't heard she acted on the threats once she sobered up.

Perry

Is Lehmberg the one who placed that indictment? If so, fair point; if not, and I'm pretty sure she isn't, then your second paragraph is random, inane bloviating.

The complaint went through her office, which she remains 100% in charge of. Are you going to stand there and claim that's legit given the gymnastics you are doing regarding Perry?

Because it sounds as if you think Lehmberg is the one who indicted Perry for demanding Lehmberg's resignation in the first place.

I said she was punishing him, and you would have to be an idiot if you think she isn't elbow deep in the machinations that led to this BS prosecution. It came from her office, through her people. As we know now (and most knew the whole time) the whole thing is BS. That speaks for itself.

Ask yourself this: If she had done the right thing and resigned would these charges have been filed?

As to your first paragraph- the crime committed in a DUI is knowingly rendering yourself unfit to drive and deciding to drive anyway. The mere fact that you got drunk and climbed in a vehicle is proof of intent to commit that crime. ed

Is there a line in the anti-corruption statutes that absolves you if you are drunk when you engage in it? Nope? Then your point is moot.

So that's one extreme- a case where the mere fact that you were found committing the crime is proof you seriously intended to commit it.

And this does not apply to corruption why? Last time I checked threatening the abuse of your powers is in fact committing corruption whether you end up following through or not. That's the whole point of threatening in the first place vice just doing.

By contrast, if you get drunk and yell "you rotten jackass, I'll kill you!" then sit back down, that is not attempted murder. You had nothing like a real intention to commit murder. You didn't try to commit the murder. You didn't do anything that could plausibly have led to a murder.

It wouldn't be attempted murder whether you were sober or drunk. It is still making a physical threat, and that is still a crime in many places.

That's the other extreme- a case where your declaration that you were about to commit a crime was transparently false and irrelevant and there is no evidence you actually intended to commit the crime or pursued any action that might lead to an illegal result. No way to prove criminal intent, no grounds for sending someone to jail.

Yet we see all these anti trolling and bullying laws popping up everywhere explicitly for the purpose of punishing people who make threats we all know are completely unserious. The fact remains I actually can't say I am going to kill someone ever, whether I get punished or not boils down to who heard me say it and how much time they have on their hands. If they want to do something about it, like get a restraining order, few courts would refuse based on event the most casual "I am going to kill you" comment."

This is all irrelevant though, because corruption is not just what you carry out. The mere threat of doing so and the effect that has is itself corruption.

In this case, Lehmberg declared intent to abuse her office, under circumstances where the threat was moderately credible BUT where she was clearly not in a functional state of mind. She did not, in fact, actually carry out any of the threats, and recanted the threats when her mental equilibrium was restored.

Very poor grounds on which to establish criminal intent.

I am sure you would be of the same mind regarding a women getting a restraining order over what a drunken ex-hunsband yelled at her house in the middle of the night?

Now, you can separately argue that Lehmberg making "I'm the DA, let me go" demands after already committing a crime that shows disregard for the law enhances the degree of her disgrace. I'd agree with that. There are ways she could have handled her arrest that would have left her considerably less disgraced than the route she actually took.

Have you actually watched the video?

But being disgraced or disgraceful is not in itself a crime. It's grounds for throwing an elected official out of office, it might be grounds for a firing by the lawfully appointed superior of a disgraced official. It certainly isn't grounds to threaten to shut down a 7.5 million dollar government program in order to compel an elected official to resign.

Why not? If the program can not be effectively run under her active direction (as these charges themselves prove), if her mere presence is tainting the programs work, why waste money on it? Its the state's money, they can spend it or not spend it however they like. With holding supply is one of the primary avenues of influence governments branches have over each other and governments have over other governments. Thats EXCACTLY how the federal government coerces states all the time through highway funding and all sorts of other purse strings shenanigans.

Lehmberg should have resigned after the incident. But it is not appropriate to call her "corrupt" without separate evidence of her actually, intentionally, abusing her office for gain.

Nor is it the governor's place to decide that firing this particular district attorney, the one who might be investigating him for corruption charges, takes precedence over allowing the anti-corruption task force to continue operating.

Its the governors job to veto legislation he disagrees with. Full stop.

Were there charges forthcoming against Perry? Note the governor did not veto funding unless they dropped charges against him. If she resigned based on a very public reason, funding would be restored. If the only reason hypothetical charges were forthcoming against Perry was Lehmbergs stewardship that tells us all we need to know about Lehmberg.

Also note, SJ, that Perry was not going to replace her with his man either. Part of the negotiation with the office to avoid the veto was that Lehmberg would be replaced by the her in place lieutenant. So no, this was not a power grab either.

Maybe you should be looking into the problems associated with having elected DAs in Texas? This issue would never have come up if the DAs already served at the pleasure of the governor's office, which seems to be what you want to be the case.

There is no issue here, as the courts just told us.

[Simon_Jester]

Is Lehmberg the one who placed that indictment? If so, fair point; if not, and I'm pretty sure she isn't, then your second paragraph is random, inane bloviating.

The complaint went through her office, which she remains 100% in charge of. Are you going to stand there and claim that's legit given the gymnastics you are doing regarding Perry?

Because it sounds as if you think Lehmberg is the one who indicted Perry for demanding Lehmberg's resignation in the first place.

I said she was punishing him, and you would have to be an idiot if you think she isn't elbow deep in the machinations that led to this BS prosecution. It came from her office, through her people. As we know now (and most knew the whole time) the whole thing is BS. That speaks for itself.

This is a relevant point. Would you mind providing an external reference on that?

Ask yourself this: If she had done the right thing and resigned would these charges have been filed?

Given my own opinions about the stupidity of no-strings-attached vetoes and the improper use of state power to force Lehmberg's resignation...

I think that if Perry had done this, and Lehmberg had folded for that reason, the charges should have been pressed, because governors should not be able to force elected officials to resign by holding hostage the organizations responsible for investigating said governors for corruption.

To me it is that simple.

However, the totally separate claim that Lehmberg is corrupt may well be partly substantiated by providing evidence that she pursued these charges as an attempt to retaliate against Perry. Since pressing charges the prosecutor has to know are unlikely to pass because of the current state of Texas law, in a case where she has personal involvement, is at best deeply, deeply questionable.

If a district attorney were the victim of a crime under any other circumstances, I'd certainly want responsibility for prosecuting the case given to a different DA.

As to your first paragraph- the crime committed in a DUI is knowingly rendering yourself unfit to drive and deciding to drive anyway. The mere fact that you got drunk and climbed in a vehicle is proof of intent to commit that crime. ed

Is there a line in the anti-corruption statutes that absolves you if you are drunk when you engage in it? Nope? Then your point is moot.

Criminal intent forms the basis of much of American case law. Not every statute contains it, but that doesn't mean it doesn't matter.

So that's one extreme- a case where the mere fact that you were found committing the crime is proof you seriously intended to commit it.

And this does not apply to corruption why? Last time I checked threatening the abuse of your powers is in fact committing corruption whether you end up following through or not. That's the whole point of threatening in the first place vice just doing.

By contrast, if you get drunk and yell "you rotten jackass, I'll kill you!" then sit back down, that is not attempted murder. You had nothing like a real intention to commit murder. You didn't try to commit the murder. You didn't do anything that could plausibly have led to a murder.

It wouldn't be attempted murder whether you were sober or drunk. It is still making a physical threat, and that is still a crime in many places.

And if you were charged for assault (physical threat) on such grounds, you might very well be exonerated in court, because the prosecution would not be able to prove criminal intent beyond a reasonable doubt. Merely saying "I'll kill you" does not in and of itself place another person in reasonable fear of their lives, after all... and consuming alcohol can definitely diminish someone's capacity to know whether the mere fact of their words will be interpreted as a threat.

Here, the question is whether alcohol can impair criminal intent, and the courts often rule that it can in cases of specific-intent offenses, where it is necessary to form the intent to commit a specific action as part of the nature of the offense.

On the other hand, one can reasonably debate that corruption is a general-intent offense, and I would certainly give due weight to your words if you wish to argue that.

That's the other extreme- a case where your declaration that you were about to commit a crime was transparently false and irrelevant and there is no evidence you actually intended to commit the crime or pursued any action that might lead to an illegal result. No way to prove criminal intent, no grounds for sending someone to jail.

Yet we see all these anti trolling and bullying laws popping up everywhere explicitly for the purpose of punishing people who make threats we all know are completely unserious. The fact remains I actually can't say I am going to kill someone ever, whether I get punished or not boils down to who heard me say it and how much time they have on their hands. If they want to do something about it, like get a restraining order, few courts would refuse based on event the most casual "I am going to kill you" comment."

That is highly dubious, because there are literally uncountable incidents of unserious threats not resulting in charges being pressed, over and above any which may have been laughed out of court.

This is all irrelevant though, because corruption is not just what you carry out. The mere threat of doing so and the effect that has is itself corruption.

In this case, Lehmberg declared intent to abuse her office, under circumstances where the threat was moderately credible BUT where she was clearly not in a functional state of mind. She did not, in fact, actually carry out any of the threats, and recanted the threats when her mental equilibrium was restored.

Very poor grounds on which to establish criminal intent.

I am sure you would be of the same mind regarding a women getting a restraining order over what a drunken ex-hunsband yelled at her house in the middle of the night?

If it weren't for the fact that the ex-husband is quite capable of breaking into the house while in a similarly drunken state... I might.

In vino veritas is not a good doctrine for criminal law- we cannot assume that alcohol just makes people more 'honest' about their intentions, when in fact it is a mind-altering drug.

When a drunken threat is made under circumstances where the threatener is capable of carrying out the threat right then, or at a future time, while in the drunken state... the drunken threat is credible. Sure, it reflects a state of diminished capacity, but the diminished capacity is still sufficient to commit the crime, so it's at least reasonable to think the threat might be carried out. Particularly when the threatener has gone out of their way to deliver the threat (e.g. come to your house without invitation).

However, when a drunken threat is made under circumstances where the threatener is not capable of carrying out the threat immediately, or where they would have to act in a sober and controlled environment (e.g. on the job in a courthouse) to carry out the threat, my view on the ethics changes somewhat. The threat loses considerable credibility and immediacy, and whether or not the threatener continues to pursue the threat after sobering up comes into play, when it comes to how I judge the situation.

Susan's ex-husband who threatened her drunk... may very well attack her next Saturday when he gets drunk again.

By contrast, Susan who threatened to get somebody fired when drunk... will have a hard time convincing her fellow supervisor to fire that somebody if she shows up to work as drunk as she was when she made the threat. So I will judge Susan less harshly if after sobering up she disavows her threat, and does not take action against whoever she threatened.

Is there any evidence that Lehmberg actually carried out the drunken threats she made against the arresting officer(s)? Or, alternatively, that she had a known habit of showing up to work drunk?

Either of these would send my opinion of Lehmberg to very rock bottom for obvious reasons. It is already quite low but could go lower.

Now, you can separately argue that Lehmberg making "I'm the DA, let me go" demands after already committing a crime that shows disregard for the law enhances the degree of her disgrace. I'd agree with that. There are ways she could have handled her arrest that would have left her considerably less disgraced than the route she actually took.

Have you actually watched the video?

Yes. As noted, she could have acted with a hell of a lot more dignity, and avoided a hell of a lot of disgrace, by simply NOT taking the road of (presumably while still intoxicated) repetitively insisting that she wasn't drunk, refusing to acknowledge the situation, and so on.

So basically, she disgraced herself a LOT, when she could have disgraced herself LESS by acting differently.

This incident, in itself, justifies expecting her to resign.

It does not, in itself, justify calling her "corrupt," though if it is part of a pattern of behavior then it would justify that.

It does not justify the governor in threatening to defund her task force in an attempt to force her resignation, because that is an abuse of his powers, given that he is not in her chain of command, given that she is an elected official, and given that he has an inherent conflict of interest in trying to defund an anti-corruption task force that operates in the state capital.

Why not? If the program can not be effectively run under her active direction (as these charges themselves prove), if her mere presence is tainting the programs work, why waste money on it? Its the state's money, they can spend it or not spend it however they like. With holding supply is one of the primary avenues of influence governments branches have over each other and governments have over other governments. Thats EXCACTLY how the federal government coerces states all the time through highway funding and all sorts of other purse strings shenanigans.

In my opinion it is wrong for the federal government to use highway funding to coerce states into any course of action that does not specifically, directly impact the condition of the state's highways. Or to use any other specific type of funding to coerce the state in any matter not directly connected to the issue the funding is being supplied for.

Lehmberg should have resigned after the incident. But it is not appropriate to call her "corrupt" without separate evidence of her actually, intentionally, abusing her office for gain.

Nor is it the governor's place to decide that firing this particular district attorney, the one who might be investigating him for corruption charges, takes precedence over allowing the anti-corruption task force to continue operating.

Its the governors job to veto legislation he disagrees with. Full stop.

Were there charges forthcoming against Perry? Note the governor did not veto funding unless they dropped charges against him. If she resigned based on a very public reason, funding would be restored. If the only reason hypothetical charges were forthcoming against Perry was Lehmbergs stewardship that tells us all we need to know about Lehmberg.

Or forthcoming against any friend or associate of Perry... or against anyone who might implicate Perry in the process of the investigation... which would probably include much of the Texas political establishment.

Also note, SJ, that Perry was not going to replace her with his man either. Part of the negotiation with the office to avoid the veto was that Lehmberg would be replaced by the her in place lieutenant. So no, this was not a power grab either.

This is a relevant point which undermines my argument and contradicts earlier claims I had heard about the whole affair. Thank you for mentioning it.

Maybe you should be looking into the problems associated with having elected DAs in Texas? This issue would never have come up if the DAs already served at the pleasure of the governor's office, which seems to be what you want to be the case.

There is no issue here, as the courts just told us.

Actually, in your eyes there WAS (or should be) an issue, because there was a DA who was 'supposed' to resign, and no normal legal mechanism to compel her resignation (the governor deciding by fiat to defund her office is not a normal legal mechanism).

If DAs were not elected, and instead worked for the executive branch (or for that matter the judiciary), this wouldn't be an issue.

[Patroklos]

This is a relevant point. Would you mind providing an external reference on that?

http://www.texastribune.org/2014/08/19/ ... pursued-d/

The liberal group who brought the complaint, Texans for Public Justice, brought it to the Travis County District Attorney's office which is run by, you guessed it, Rosemary Lehmberg. Her office vetted it in their role as public corruption arbiter. Now, she isn't entirely idiotic so she did refer it to another prosecutor. To avoid all appearances of further impropriety they sent it to McDrum, a well know Democrat prosecutor residing in liberal (for grand jury purposes) Austin.

I think that if Perry had done this, and Lehmberg had folded for that reason, the charges should have been pressed, because governors should not be able to force elected officials to resign by holding hostage the organizations responsible for investigating said governors for corruption.

To me it is that simple.

Should be legally, or should be morally? My point was that the charges obviously rested on a legal fiction that everyone knows is BS. Some *(you) might think it shouldn't be BS, but that's a different story.

So, minus Lehmberg being Perry's object of attention, would the prosecutors of her office have cared? Would the Texans for Public Justice complaint ever have seen the light of day?

Keep in mind this is the same office and prosecutor that gave us the abortion of the Tom Delay trial, which has been thrown out for being BS too. Lehmberg has a history of political targeting.

However, the totally separate claim that Lehmberg is corrupt may well be partly substantiated by providing evidence that she pursued these charges as an attempt to retaliate against Perry. Since pressing charges the prosecutor has to know are unlikely to pass because of the current state of Texas law, in a case where she has personal involvement, is at best deeply, deeply questionable.

If a district attorney were the victim of a crime under any other circumstances, I'd certainly want responsibility for prosecuting the case given to a different DA.

It was, by her select political ally, but only after her office gave it legs.

Criminal intent forms the basis of much of American case law. Not every statute contains it, but that doesn't mean it doesn't matter.

The issue is that the same logic you are using to give automatic criminal intent to DUIs can be applied here. I don't have to prove you intended to drive drunk before you got drunk. You making every decision to do so while drunk, even if you would not have otherwise, is irrelevant to getting a DUI charge. The same applies here.

Now, you may use circumstances like that for sentencing, but you still committed a DUI/corruption and should be charged like it.

And if you were charged for assault (physical threat) on such grounds, you might very well be exonerated in court, because the prosecution would not be able to prove criminal intent beyond a reasonable doubt. Merely saying "I'll kill you" does not in and of itself place another person in reasonable fear of their lives, after all... and consuming alcohol can definitely diminish someone's capacity to know whether the mere fact of their words will be interpreted as a threat.

The fact that you might be found not to be guilty sometimes, which is the case with murder/rape/armed robbery/child molestation/etc. too, does not mean the act is not generally considered criminal.

As a general rule, enforced by law, you can't threaten to kill someone. Lots of times instances you might consider unserious, I will consider otherwise, and visa versa. Just like anything. I feel you are being especially flippant here though, because thousands of domestic violence, custody hearings, and stalker cases declare what many might consider unserious threats quite serious all the time.

Here, the question is whether alcohol can impair criminal intent, and the courts often rule that it can in cases of specific-intent offenses, where it is necessary to form the intent to commit a specific action as part of the nature of the offense.

They often also decide that it didn't (excuse their conduct) FAR more often. DUIs specifically. Also, this is not just a question of intent, but as you mentioned earlier whether or not you actually did something. Unlike your threaten to kill someone example, Lehmberg DID commit corruption. Can you honestly say, drunk or not, whether she apologized sober later or not, that everyone involved in her arrest can rest easy at night knowing that surely contrite Rosemary Lehmberg will never remember. That she is not holding a grudge? That their actions are not under constant judgement by her schewed eye?

If one of these cops was to get caught up in the shooting of a black man under dubious circumstances could they really look to her as an impartial legal opinion on whether they should be prosecuted? Would there defense not have a field day? Even if she recuses herself could you ever discount her influence over the entire county prosecutors office? Over other cops collecting evidence for her? If she has to recuse herself for anything involving any of these people can she be an effective prosecutor?

She is tainted, and its because she did commit corruption. Whether she was drunk when she did it is irrelevant. That stink will always be there. She can't control it after the fact.

On the other hand, one can reasonably debate that corruption is a general-intent offense, and I would certainly give due weight to your words if you wish to argue that.

I am not clear on what you mean here.

That is highly dubious, because there are literally uncountable incidents of unserious threats not resulting in charges being pressed, over and above any which may have been laughed out of court.

As is the case with murders, rapes, child abuse, etc. Serious crimes go prosecuted over lack of evidence all the time, that doesn't make them any less crimes.

However, your position rests on the assumption of unseriousness due to her being drunk. DUIs don't get that assumption, even one like this where she hurt no one as you claim (but can't prove) is the case with her act of corruption.

In this case, Lehmberg declared intent to abuse her office, under circumstances where the threat was moderately credible BUT where she was clearly not in a functional state of mind. She did not, in fact, actually carry out any of the threats, and recanted the threats when her mental equilibrium was restored.

Do you actually know she didn't carry out any of these threads? Can we ever know that as long as she is in a position of authority over these people? How many cases has she tried where these officers are involved? How many of their family members have been in trouble with the law these last two years? What subtle influences in their cases, where things could have gone one way or the other, do we have to assume she and her agents were above board?

Again, just the whiff of corruption taints.

If it weren't for the fact that the ex-husband is quite capable of breaking into the house while in a similarly drunken state... I might.

Lets say it was reported the next day, nothing happened. No harm no foul right? Obviously his comments were unserious as he didn't act on them.

So, when this restraining order comes before judge Simon Jester, you are going to throw it out because obviously he was unserious in his threat to kill her.

Lehmberg made a threat. Who says when she is going to make good on it. She apologized? All well and good then, surely nobody has ever apologized for effect before with a wink wink to their victims.

In vino veritas is not a good doctrine for criminal law- we cannot assume that alcohol just makes people more 'honest' about their intentions, when in fact it is a mind-altering drug.

Not my argument. You are responsible for what you do, drunk or sober. When a frat boy rapes a girl and says he only did it because he was drunk, I don't assume he was always a rapist and alcohol made him act out. He could be a very nice person, the best person in the world, who had a bad ride the night before. He still raped someone, and he should still go to jail.

I don't care if Lehmberg is the most uncorrupt sober person in the world. She was a drunk corrupt person once, and she should pay for it.

When a drunken threat is made under circumstances where the threatener is capable of carrying out the threat right then, or at a future time, while in the drunken state... the drunken threat is credible. Sure, it reflects a state of diminished capacity, but the diminished capacity is still sufficient to commit the crime, so it's at least reasonable to think the threat might be carried out. Particularly when the threatener has gone out of their way to deliver the threat (e.g. come to your house without invitation).

To be clear, the assumptions that someone is usually good but was bad this one time, or is always bad under the surface and just showed it to us under the influence, are both irrelevant. What you do is relevant.

However, when a drunken threat is made under circumstances where the threatener is not capable of carrying out the threat immediately, or where they would have to act in a sober and controlled environment (e.g. on the job in a courthouse) to carry out the threat, my view on the ethics changes somewhat. The threat loses considerable credibility and immediacy, and whether or not the threatener continues to pursue the threat after sobering up comes into play, when it comes to how I judge the situation.

The problem here is that we will never know if she was serious or not, but for her to do her job we have to know 100%. For those police officers to do their job they have to know 100%.

Susan's ex-husband who threatened her drunk... may very well attack her next Saturday when he gets drunk again.

Lehmberg may ruin a police officers career tomorrow, sober, out of revenge.

By contrast, Susan who threatened to get somebody fired when drunk... will have a hard time convincing her fellow supervisor to fire that somebody if she shows up to work as drunk as she was when she made the threat. So I will judge Susan less harshly if after sobering up she disavows her threat, and does not take action against whoever she threatened.

Lehmberg doesn't have a supervisor. As this case shows clearly, she sees herself as an unassailable and unaccountable Lord of her little fiefdom. Sucks to be a cop on her bad side in her little fiefdom.

Is there any evidence that Lehmberg actually carried out the drunken threats she made against the arresting officer(s)? Or, alternatively, that she had a known habit of showing up to work drunk?

She is an alcoholic.

Thats not how corruption works. When you are on video tape clearly threatening it the taint is there. We can never know how or when you let that influence you. Every decision she makes and by those she has influence over, including letting BS charges like those in question move through her office, has to be viewed in that context.

Either of these would send my opinion of Lehmberg to very rock bottom for obvious reasons. It is already quite low but could go lower.

She has a history, see Tom Delay's corruption charges. Overturned now, after she achieved her political goals.

In my opinion it is wrong for the federal government to use highway funding to coerce states into any course of action that does not specifically, directly impact the condition of the state's highways. Or to use any other specific type of funding to coerce the state in any matter not directly connected to the issue the funding is being supplied for.

As you said that's your opinion, but not the law. Withholding supply is a common mechanism throughout many governments worldwide.

Lehmberg should have resigned after the incident. But it is not appropriate to call her "corrupt" without separate evidence of her actually, intentionally, abusing her office for gain.

We have it on video. Now was it particularly effective corruption? No. Being bad a crime is not an excuse to ignore crime.

Nor is it the governor's place to decide that firing this particular district attorney, the one who might be investigating him for corruption charges, takes precedence over allowing the anti-corruption task force to continue operating.

You may see it that way. What I see is Lehmberg deciding her own personal career, pride and political goals being more important than investigating anyone's corruption charges.

Its the governors job to veto legislation he disagrees with. Full stop.

Or forthcoming against any friend or associate of Perry... or against anyone who might implicate Perry in the process of the investigation... which would probably include much of the Texas political establishment.

Shall we challenge any action Obama takes over the DOJ while his BFF Hillary is under threat of indictment for obvious breaches of the law? If Lehmberg cared about any of this she would have resigned. Perry is not responsible for the ethics quagmire Lehmrberg foisted on the State of Texas, though he did admirably try and address it by holding her to account.

[This is a relevant point which undermines my argument and contradicts earlier claims I had heard about the whole affair. Thank you for mentioning it.[/quote]

No not all of your points, but it does but Perry's actions in cotext. It might just be he sees a real abuse of power and undermining of the public good through a corrupt official tainting a very important office and is trying to remedy it. The legal question of whether he can do it the way he did are still worth looking into even if they are obvious.

Actually, in your eyes there WAS (or should be) an issue, because there was a DA who was 'supposed' to resign, and no normal legal mechanism to compel her resignation (the governor deciding by fiat to defund her office is not a normal legal mechanism).

If DAs were not elected, and instead worked for the executive branch (or for that matter the judiciary), this wouldn't be an issue.

Should have resigned. She is an elected official, and thus I don't thing Perry should be able to fire her. Nor did he try. Her position as a selectee of voters is far more sacred than any appointed government functionary. That being said, when one such as her is so blatantly corrupt accountability should be applied by whatever means are available. Its a good thing Perry's actions are so disruptive and controversial because it shouldn't be easy to compel an elected official to resign. That keeps it from being abused.

[Simon_Jester]

This is a relevant point. Would you mind providing an external reference on that?

http://www.texastribune.org/2014/08/19/ ... pursued-d/

The liberal group who brought the complaint, Texans for Public Justice, brought it to the Travis County District Attorney's office which is run by, you guessed it, Rosemary Lehmberg. Her office vetted it in their role as public corruption arbiter. Now, she isn't entirely idiotic so she did refer it to another prosecutor. To avoid all appearances of further impropriety they sent it to McDrum, a well know Democrat prosecutor residing in liberal (for grand jury purposes) Austin.

As a hypothetical, if it were right to press the charges, would there be any way to press the charges that didn't go through Lehmberg's office?

I think that if Perry had done this, and Lehmberg had folded for that reason, the charges should have been pressed, because governors should not be able to force elected officials to resign by holding hostage the organizations responsible for investigating said governors for corruption.

To me it is that simple.

Should be legally, or should be morally? My point was that the charges obviously rested on a legal fiction that everyone knows is BS.

How new is the statute? Has the question of whether it applies to government officials attempting to coerce an elected county official into resigning by threatening to defund their office been resolved prior to this case? If not, I'm not sure where you get "everyone knows" that it is a legal fiction to claim that this is unlawful coercion.

So, minus Lehmberg being Perry's object of attention, would the prosecutors of her office have cared? Would the Texans for Public Justice complaint ever have seen the light of day?

Keep in mind this is the same office and prosecutor that gave us the abortion of the Tom Delay trial, which has been thrown out for being BS too. Lehmberg has a history of political targeting.

If your aim is to establish that Lehmberg is corrupt, bringing up the Tom Delay trial would be a good argument. Hacking at Lehmberg's reputation accomplishes that goal.

If your aim is to establish that Perry shouldn't be accused of wrongdoing for trying to coerce an elected official into resigning by defunding their office, then hacking at Lehmberg's reputation isn't very relevant.

Criminal intent forms the basis of much of American case law. Not every statute contains it, but that doesn't mean it doesn't matter.

The issue is that the same logic you are using to give automatic criminal intent to DUIs can be applied here. I don't have to prove you intended to drive drunk before you got drunk. You making every decision to do so while drunk, even if you would not have otherwise, is irrelevant to getting a DUI charge. The same applies here.

Now, you may use circumstances like that for sentencing, but you still committed a DUI/corruption and should be charged like it.

Except that there are cases where people routinely are found innocent of specific crimes on the grounds of diminished capacity or a lack of intent to commit the crime.

The fact that you might be found not to be guilty sometimes, which is the case with murder/rape/armed robbery/child molestation/etc. too, does not mean the act is not generally considered criminal.

This is missing the point, though I admit my point may have gotten lost in the shuffle.

My argument is that the moral oppobrium which would apply to Lehmberg for being "corrupt" cannot justly be applied to her purely because of a single incident which took place when she was drunk. When we describe someone as "corrupt," we are strongly implying that corruption is a fundamental part of their character on a deep enough level to be relevant at all times.

To show that she was "corrupt" would require either showing a pattern of behavior, an isolated incident that took place when we can be sure she was in her right mind, or both.

I also argue that there is precedent in, among other things, the legal system for the idea of applying less oppobrium to people who committed an offense while in a state of diminished capacity, especially if their prior subsequent actions indicate that they reject and disavow the actions they took in the diminished state.

The chain of back-and-forth we've been debating is based entirely on this: I do not consider it accurate to call Lehmberg "corrupt" because she made less-than-precise threats invoking her status as district attorney while clearly drunk, on a single occasion.

I might call her "foolish" or "a drunken sleaze," but not "corrupt," because this specific instance is not evidence that it is normally part of her character to use her office for personal gain.

As a general rule, enforced by law, you can't threaten to kill someone. Lots of times instances you might consider unserious, I will consider otherwise, and visa versa. Just like anything. I feel you are being especially flippant here though, because thousands of domestic violence, custody hearings, and stalker cases declare what many might consider unserious threats quite serious all the time.

And it depends on context and credibility in many such cases- which is why a lot of the genuinely unserious accusations don't even see a courtroom.

So when judging level of moral oppobrium, as I am... I consider the context and credibility of the threat as part of judging how poorly I will think of the offender. I think poorly of Lehmberg, but not as poorly as I would if I thought she had pursued revenge against the arresting officers when sober, or if she has a persistent pattern of getting out of arrests by waving her status as a DA at the officers.

They often also decide that it didn't (excuse their conduct) FAR more often. DUIs specifically. Also, this is not just a question of intent, but as you mentioned earlier whether or not you actually did something. Unlike your threaten to kill someone example, Lehmberg DID commit corruption. Can you honestly say, drunk or not, whether she apologized sober later or not, that everyone involved in her arrest can rest easy at night knowing that surely contrite Rosemary Lehmberg will never remember. That she is not holding a grudge? That their actions are not under constant judgement by her schewed eye?

If one of these cops was to get caught up in the shooting of a black man under dubious circumstances could they really look to her as an impartial legal opinion on whether they should be prosecuted? Would there defense not have a field day? Even if she recuses herself could you ever discount her influence over the entire county prosecutors office? Over other cops collecting evidence for her? If she has to recuse herself for anything involving any of these people can she be an effective prosecutor?

Out of sheer curiosity, can police officers do this if they ever have grounds to arrest a county prosecutor? I mean, how far out of my way would I have to go, in order to convince the cops that I don't hold it against them that they are arresting me on spurious charges?

She is tainted, and its because she did commit corruption. Whether she was drunk when she did it is irrelevant. That stink will always be there. She can't control it after the fact.

Ah, so when you say "Lehmberg is corrupt," you actually mean "Lehmberg can reasonably be accused of corruption and others may fear her being corrupt, therefore, she is eternally suspect."

Thing is, when I say "Vladimir Putin is corrupt," versus saying "Vladimir Putin is under permanent suspicion of being corrupt," those are not the same thing in my mind. Are they the same in yours?

If it weren't for the fact that the ex-husband is quite capable of breaking into the house while in a similarly drunken state... I might.

Lets say it was reported the next day, nothing happened. No harm no foul right? Obviously his comments were unserious as he didn't act on them.

So, when this restraining order comes before judge Simon Jester, you are going to throw it out because obviously he was unserious in his threat to kill her.

[Rolls eyes]

I don't think you're listening well enough to me to justify my explaining this part all over again.

Actually, in your eyes there WAS (or should be) an issue, because there was a DA who was 'supposed' to resign, and no normal legal mechanism to compel her resignation (the governor deciding by fiat to defund her office is not a normal legal mechanism).

If DAs were not elected, and instead worked for the executive branch (or for that matter the judiciary), this wouldn't be an issue.

Should have resigned. She is an elected official, and thus I don't thing Perry should be able to fire her. Nor did he try. Her position as a selectee of voters is far more sacred than any appointed government functionary. That being said, when one such as her is so blatantly corrupt accountability should be applied by whatever means are available. Its a good thing Perry's actions are so disruptive and controversial because it shouldn't be easy to compel an elected official to resign. That keeps it from being abused.

Are you arguing that Lehmberg's corruption is made blatant by this incident when it wasn't before?

Because just a minute ago you were arguing that Lehmberg had a pattern of corrupt actions. Now, apparently, you're arguing that this incident is worse than the previous ones somehow, given that it justifies the governor trying to engineer the resignation of an elected official whereas the earlier ones don't.

Or do I have that wrong?

Besides which, my point stands- if you really think that DAs this corrupt should resign whether they feel like resigning or not, then why don't you think people in Lehmberg's position need a supervisor, or at least a well-defined procedure for impeaching them on corruption charges?

[If there is such a procedure in play, why has it not been exercised?]

If you want district attorneys to be elected, then you have to accept the corollary that the job of hiring and firing them belongs to the electorate. Not to Perry threatening to blow up the office responsible for investigating, among other people, him.