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The World's Most Absurd Indictment

I'll be the first to admit I know zilch about Texas law.  I'll also freely admit that I'm no fan of Gov. Rick Perry, one of the most obviously not-ready-for-prime-time Presidential candidates I've ever seen.  My opinion of him did not improve when he started touting his program to save money (or, more accurately, to shift costs onto future crime victims) by an early prison release program.

But the indictment brought against him today by a grand jury sitting in Texas's nutty left-wing capital, Austin, is probably the most exotic and preposterous felony charge I've ever seen, and I've seen lots.  It makes the political prosecution of former Texas Congressman Tom DeLay look serious by comparison.

In brief, Perry has been indicted for vetoing an appropriation for a prosecutor's office after the prosecutor, a Democrat, was convicted of drunk driving and sent to jail. And no, your eyes are not deceiving you:  A governor got indicted for vetoing a bill.  From the Wall Street Journal, here's the story.


According to press reports, Bill, the special prosecutor who secured this indictment, Micahel McCrum "worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration." You often give me grief when I question the charging discretion and choices of federal prosecutors, but I suspect from the title of this post that you are not keen to defend this prosecutorial charging decision.

Dare I assert that when you are sympathetic to the defendant, you then actually support some limits or review of prosecutorial power? Dare I fear that Micahel McCrum learned the tactic of indicting first and asking questions later during a decade as a federal prosecutor?

As to the first paragraph: Both you and I have questioned (or more than merely questioned) quite a few prosecutorial charging decisions, in this Administration and past ones. The difference between us is that I recognize and accept that constitutionally-based prosecutorial discretion is to be corrected, when needed, by the political process, whereas you want to give the judicial branch extra-constitutional power to interfere in charging decisions. You want to do so, moreover, for strictly ideological reasons, to wit, so that dealers in heroin, meth, PCP and other drugs YOU ARE ON RECORD AS WANTING DE-CRIMINALIZED will get slap-on-the-wrist sentences. You correctly see that the political branches are not about to buy legalization of hard drugs, so you want the next best thing you can get, to wit, legalization lite by mangling the Constitution so that the judiciary gets to stick its nose in.

Believe me, I get it. You correctly believe that, once the judiciary gets its nose under the tent, drug traffickers will have more of a chance to buy off the next Alcee Hastings or get a sweet deal from a good-faith but delusionally pro-defendant judge like Jack Weinstein.

Sorry, I just don't buy the idea that judiciary-uber-alles is the answer. The answer lies with the electorate.

Why, Bill, the effort to distract this discussion with drug policy issues? Can we stay on point with a focus on the use and potential abuse of prosecutorial discretion and viable means to check/review this power?

I share your interest in trusting the political process over the judiciary as a limiting/checking authority, when possible, but I am unsure how that is going to work in this kind of case when a prosecutor is so politically insulated from the electorate. The special prosecutor here, best I can tell, is completely politically unaccountable. (Same goes, I fear, for most federal prosecutors, too.) Moreover, this curious prosecution appears to emerge from local/state political in-fighting run amok --- and so I struggle to see how "the electroate" is going to provide an answer to problems that stem from political divisions.

As you should realize, I do not "buy the idea that judiciary-uber-alles" is the way to go with anything. But I also do not favor "prosecutors-uber-alles" either. So, unless you can explain to me in this context how the "political process" or "the electorate" someone has a helpful response to what you call "the most exotic and preposterous felony charge [you]'ve ever seen."

The missing piece, it seems, is a functional grand jury and jury check --- in part, I fear, because folks like you encourage the thinking that prosecutors are almost never wrong or misguided. Obviously, you think this prosecutor is wrong and misguided, though I am inclined to say on this front, tongue somewhat in cheek, that the "jury is still out" on this matter.

Doug --

1. The reason for my discussion of drug law is that the rolling back of drug penalties is BY FAR the main item on the agenda of attacking prosecutorial charging power.

2. The judicial branch has plenty of say-so in this case, and my guess is it's going to start in a matter of hours with its docketing the motion to dismiss on grounds of selective and/or vindictive prosecution.

3. The main difference between us is that you want the judiciary to be able to disable the prosecutor from charging the defendant WITH THINGS HE ACTUALLY DID, simply because a member of the judiciary dislikes the sentence.

That would be gross judicial overreaching. If the judge wants to refuse to impose a MM term because he finds it an Eighth Amendment violation, fine, let him. But there's all the difference in the world between engaging in a judgment properly before him (the constitutionality of the sentence) and one that's reserved for another branch (what charge to bring in the first instance).


1. Actually I am far more concerned about stacked 924(c) MMs and the receipt MM in CP cases than I am concerned about drug MMs when I attack misuse of prosecutorial power/discretion in the federal system. Will you defend how MMs were used in the Angelos or Williams cases? Will you explain or defend the wild charging inconsistencies documented by the US sentencing commission in its CP report. You might want to believe the concern is only about drugs (and the SSA would suggest as much), but it is about so much more and that is why I am a much bigger supporter of the JSVA than the SSA.

2. Am I right to read your comment as an indication that you are (a) glad the judiciary is a check on charging power in this case, and (b) that you acknowledge here than the political process (and/or the grand jury process) does not serve as an adequate check in this case (and presumably others).

3. Are you disputing that Perry used his power as Gov to seek to push out a prosecutor? There seems to be no factual dispute about what Perry actually did, all that appears at issue is whether felony charges are justifiable based on the seemingly undisputed facts. Similarly, in a federal CP case where either a possess charge without and MM or a receipt charge with a 5-year MM, the issue is which charge(s) should be brought, not what the defendant did. What I want are some kind of transparency and legal checks on the hidden, unregulated discretion of prosecutors to pick what sentence to require the judge to impose, and I do not want every one of these cases to turn into a constitutional fight (ergo my support for a statutory remedy like the JSVA).

4. The main difference between us Bill is that I want the judiciary to be able to question and scrutinize the SENTENCING decisions of federal prosecutors because I do not think prosecutors should have unlimited and hidden power/discretion to charge AND sentence. You, in your defense of prosecutors uber-alis, want to preserve prosecutorial power/discretion to charge AND sentence. And the point of this whole thread for me is to highlight that, at least in some cases (as you seem to recognize), we cannot reasonably depend on the "political process" or "the electorate" to curb prosecutorial overreach and that great harm can come if a judiciary does not have at least some power to respond to prosecutorial overreach.

5. Indeed, to the extent you believe it is always improper for the judiciary to "disable the prosecutor," why are you rooting for a judicial dismissal of this indictment? To the extent you are, I hope you can better explain to me why this case so obviously calls for judicial disabling of a prosecutorial charging decision, but other cases so obviously do not. Your current ALL CAPS explanation in point 3 does not itself adequate explain the difference in my view.

I can sum up in one sentence where your analysis goes awry: It understates what the judiciary can do UNDER PRESENT LAW. No additions to the already awesome and (as you understand), abuse-prone power of His Honor are needed.

1. The Constitution gives the judge no role whatever in the initial selection of charges. This has been the case, and wisely so, for over 200 years. There is no legal or historical basis for changing it. The only "basis" is the current fad the criminals are helpless victims and prosecutors are extortionists. Since both these propositions are false, they have proven insufficient to bully Congress into passing the legislation you prefer.

2. With all that, as soon as the charges are selected and filed, the judicial branch swings into action. It can dismiss the charges in response to a motion asserting that they are selective and/or vindictive. Why, after this remedy has been available for decades, has it all of a sudden become inadequate -- and indeed so inadequate that we must now re-rig the long-standing division of authority over charging decisions?

3. If the defendant fails in such a motion, and gets convicted under a MM statute, he still has at least three options: (1) the judicial safety valve, available under perfectly sensible conditions; (2) the government safety valve, available for substantial assistance, and used by over 70,000 defendants (according to FAMM); and executive clemency, of which the Administration is preparing thousands and thousands (admittedly rather quietly, at least before the election).

4. Even after all that, will there still be sympathetic cases? You bet. Too bad. No system ever devised on this earth is foolproof. The only adult question is whether the system we have developed now, after years of experimenting with both indeterminate sentencing (60's and 70's) and determinate sentencing (90's and 00's), works well to serve the great majority (you know, the greatest good for the greatest number). And the answer is yes. The crime rate has been suppressed by half. Thousands upon thousands of our citizens -- people who would have been hurt by crime -- have been able to lead better lives instead.

In the service of meth pushers, gangbangers, CP distributors and strongarm thugs -- and their protectors like Jack Weinstein and John Gleeson -- you want to go back to the failed, Imperial Judiciary policies of the past.

Here's our major difference: I don't.

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