“Wounded Innocence?”: Why Rick Perry May Be Out Of Luck
Governor Rick Perry of Texas and President Barack Obama, strangest of bedfellows, are making similar discoveries about the scope of prosecutorial discretion. In short, it’s very broad.
Perry’s education on the subject is an unhappy one. Late Friday, the Texas Governor, who has about five months left in his term, was indicted on two counts: abuse of official capacity and coercion of a public servant. What those charges mean, though, is hard to say. The indictment itself is just two pages and, to put it charitably, unelaborated.
The case has its origins in Perry’s long-running feud with Rosemary Lehmberg, a district attorney in Travis County, which includes Austin and represents an island of blue in the deep-red sea of Texas. Last year, Lehmberg was charged with drunken driving. She promptly pleaded guilty, which, in light of the YouTube videos of her sobriety test and her booking at the police station, was no surprise.
Lehmberg served several days in jail but declined to resign, so Perry decided to make the most of her difficulties. He said that, unless she resigned, he would use his power as Governor to veto $7.5 million in state money for her Public Integrity Unit, which had been hard at work prosecuting Texas pols, many of them Republicans. He could not, he said, support “continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”
What Perry did was obvious. The Governor was using his leverage to jam a political adversary—not exactly novel behavior in Texas, or most other states. But Democrats succeeded in winning the appointment of a special prosecutor, Michael McCrum, to investigate Perry’s behavior, and on Friday McCrum brought the hammer down. The threat to veto the money for the D.A. amounted to, according to the prosecutor, two different kinds of felonies: a “misuse” of government property, and a corrupt attempt to influence a public official in “a specific exercise of his official power or a specific performance of his official duty” or “to violate the public servants known legal duty.” (In the charmingly archaic view of Texas statutes, every public official is a “him.”)
Perry’s indictment has been widely panned, including by many liberals, as an attempt to criminalize hardball politics. (Vetoing things is, generally, part of a governor’s job.) Perry himself is all wounded innocence. “I intend to fight against those who would erode our state’s constitution and laws purely for political purposes, and I intend to win,” he said at a news conference. (It would be easier to feel sorry for Perry if he expressed similar concern about, say, the constitutional rights of those who were executed on his watch and with his support.)
So Perry may have a point, but 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 President 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.
By: Jeffrey Toobin, The New Yorker, August 19, 2014
“The Fire This Time”: In Ferguson, A Sense Of Being Left Behind
The fire this time is about invisibility. Our society expects the police to keep unemployed, poorly educated African American men out of sight and out of mind. When they suddenly take center stage, illuminated by the flash and flicker of Molotov cocktails, we feign surprise.
The proximate cause of the rioting in Ferguson, Mo., is the killing of 18-year-old Michael Brown, who was stopped, a witness has said, by a white policeman for walking in the street rather than on the sidewalk. Officer Darren Wilson shot Brown at least six times, according to a private autopsy and, reportedly, one conducted by the St. Louis County medical examiner. Two of those bullets struck him in the head.
There we have the familiar narrative: another unarmed black man unjustly killed. Brown thus joins a long, sad list — Trayvon Martin, Eric Garner, etc. — that seems to have no end.
This story line is unassailable. Anyone who thinks race is not a factor in these fatal encounters should have to cite examples of unarmed, young, white men being killed by trigger-happy police or self-appointed vigilantes. Names and dates, please.
But the violence in Ferguson tells of a deeper, more fundamental narrative about what African Americans have done, and what has been done to them, in the decades since the urban riots of the 1960s — the fire last time.
Tempted to conclude that nothing has changed? Please note that the Missouri Highway Patrol commander, brought in to bring proportion and discipline to what had been a provocative local police response, is black. The attorney general who interrupted his Martha’s Vineyard vacation to order a Justice Department investigation and a third autopsy is black. And, of course, the president and commander in chief — who also took time from a Vineyard holiday to address the crisis in Ferguson — is black.
Also note that this undeniable evidence of progress on the issue of race — which would have been unimaginable when Harlem exploded in 1964 over the police shooting of a 15-year-old boy — makes no apparent difference to the young men who have been rampaging through the streets of Ferguson.
Why not? Because the tremendous gains achieved by some African Americans have not just left some others behind but made their situation more desperate and hopeless than it was 50 years ago.
When the unrest in Ferguson is over, I predict that there will be a flood of ambitious journalism seeking to assess the status of black America. Most of this analysis will be ignored because it will so contradict what many Americans see every day with their own eyes.
Millions of African Americans took advantage of the opportunities created by the civil rights movement to climb into the middle class — and in some cases far beyond, as exemplified by President Obama and Attorney General Eric Holder.
Yet millions of other black Americans did not reach the middle class. This group, mired in poverty and dysfunction, finds the paths others took are blocked. They live in neighborhoods with failing schools that cannot prepare them for today’s economy. Secure, high-paying blue-collar jobs are a thing of the past. Racial bias in policing means African Americans are much more likely to be arrested and jailed for minor nonviolent offenses, such as drug possession, than whites who commit the same crimes.
Increasingly, these African Americans who were left behind are invisible. Their neighborhoods either get gentrified — which means they can no longer afford to stay there — or simply bypassed by development. What happens in poor black neighborhoods has less and less to do with the everyday lives of middle-class Americans, white or black.
Yet in Ferguson and other such pockets across the nation, millions of young black men and women grow up knowing that the deck is stacked against them. Did Michael Brown have a chip on his shoulder? Not according to his friends and family, although the convenience store video suggests otherwise. Would it be understandable if he did? Might he have wondered if white kids, living in more affluent parts of town, routinely got hassled by the police for jaywalking?
Brown had no police record. He had graduated from high school. He was about to enter a technical college. Given where he came from, it’s hard to do a whole lot better — and easy to do a whole lot worse.
Now that the streets are filled with incoherent rage — and the rioting must be strongly condemned — we can see Brown’s struggle. Momentarily, at least. After the smoke clears, we will be blind once again.
By: Eugene Robinson, Opinion Writer, The Washington Post, August 18, 2014
“Perry Case Complicates Boehner’s Lawsuit”: Republicans Arguing One Thing For Perry, And The Exact Opposite For Obama
The indictment of Governor Rick Perry of Texas and his subsequent court case are about to complicate things politically for John Boehner. No matter the actual outcome of Perry’s case, the arguments made by Perry and his supporters are going to provide an easy equivalence with Boehner’s plans to sue President Obama — an equivalence that would not have existed had Perry not been indicted.
Perry is making the claim that the entire thing is just a partisan witchhunt, driven by out-of-control Democrats in the liberal enclave of Austin. He may succeed in convincing the public of this — and it remains to be seen whether this will help or hurt Perry among Republican primary voters in the upcoming presidential contest. So far, he has signaled that he’s going to wear it as a Republican badge of honor — standing up to liberals trying to tear him down in the courts. Here is Perry’s lawyer, summing up this defense:
The facts of this case conclude that the governor’s veto was lawful, appropriate and well within the authority of the office of the governor. Today’s action, which violates the separation of powers outlined in the Texas Constitution, is nothing more than an effort to weaken the constitutional authority granted to the office of Texas governor, and sets a dangerous precedent by allowing a grand jury to punish the exercise of a lawful and constitutional authority afforded to the Texas governor.
He is arguing that the voters entrusted Perry with executive powers, which Perry then faithfully exercised, and that the case against him is nothing more than Democrats fighting a partisan battle that they already lost at the ballot box.
Now, I should explicitly point out that I have no idea what the actual facts are and until a jury hears the case, it is impossible to know whether the indictment was partisan overreach or not. I’m not going to argue the facts of the case here, to put this another way — we’ll all have plenty of time to do so as the case makes its way through the legal system in the months to come. I’m instead focusing only on the politics of the case.
Perry and his defenders are going to be making the case for strong executive power, which (they will say) is supposed to be executed without the interference of the courts. That’s Perry’s argument in a nutshell, and so far he has not been shy about strongly making this argument himself.
But this is going to become a major political stumbling block for House Republicans when John Boehner actually files his own lawsuit against President Obama. Because they’ll be arguing that, in Texas, the executive should be allowed to execute his powers without interference from the courts; while at the same time arguing that on the national level the courts should indeed interfere with the executive attempting to exercise his powers. The parallels are going to be obvious to all, in fact.
Again, the facts of both cases won’t even really enter into the discussion much, because while one party thinks the Texas case is weak, the other party is going to say the same thing about Boehner’s case. The real argument, in both cases, is: Should this be the way politics works? At what point should political arguments be handled by the justice system? Perry’s case is all about politics from beginning to end. Boehner’s case will be too.
Republicans were counting on Boehner’s case to whip their base voters into a frenzy, right before the midterm elections. They were all set to pronounce the righteousness of their position, using the justice system to rein in an otherwise-unchecked president. That’s going to be a lot tougher sell now, especially since it is scheduled to happen after weeks and weeks of discussing the merits of the case against Perry. Republicans will be denouncing using the justice system against an executive in purely partisan fashion, and then they’ll have to start arguing that John Boehner has every right to use the justice system against an executive in purely partisan fashion. The turnabout will be so dramatic it might induce whiplash.
To the casual observer of politics, the two cases are going to sound an awful lot alike. Some Democrats, perhaps realizing this, have already expressed doubts about the case against Perry. The woman at the heart of the case isn’t exactly a “poster child” character, since video exists of her drunk driving arrest, which doesn’t exactly inspire confidence in her personality. To defend the case against Perry means also having to defend her, which is why some Democrats are already backing away from this one.
But Republicans won’t be able to back away so easily from Boehner’s case. This isn’t some squabble in one faraway state; this is national politics. The speaker of the House will be suing the president of the country, which can’t be written off as some sort of parochial affair. House Republicans are already on the record, having voted to proceed with the lawsuit right before the August break. For some Republicans, the lawsuit won’t even go far enough — Boehner is already walking a tightrope with Republicans who want to see him impeach Obama. Boehner won’t be able to back down, to put this another way.
But now the argument for suing Obama is going to get more complicated than anyone could have foreseen. Perry’s case is going to prepare the ground with the public, and provide Democrats with an easy response: “How is this case any different than Perry’s?” Republicans are going to be arguing one thing for Perry, and the exact opposite for Obama. This is going to become more and more obvious to all concerned, in fact.
The best Boehner can hope for, at this point, is that Perry’s case moves very, very slowly. Maybe everyone will forget about it if there is no breaking news from Austin in the next month or so. My guess, however, is that Democrats will be more than ready to remind everyone of the similarities between the two cases, and how Republicans are taking positions in the two which are completely contradictory. The Perry case — again, no matter how it turns out — has certainly made it a lot more politically complicated for Boehner to move forward with his lawsuit.
By: Chris Weigant, The Huffington Post Blog, August 20, 2014
“Widening Disparities”: Maine Props Up ‘Two Americas’ With No Medicaid Expansion
The Affordable Care Act, as originally passed, holds tremendous promise to decrease health care costs and increase insurance coverage rates across rural states like Maine. But federal court opinions and repeated vetoes of Medicaid expansion are putting all that into jeopardy. Already, data is pointing to widening disparities between the states embracing health reform and those that have resisted — in the numbers of uninsured, in new health care jobs and in the finances of local hospitals.
Historically, the United States has maintained the highest health spending in the world, but it still had lower life expectancies and the highest rates of infant mortality in the developed world. Health costs have sucked up 18 percent of our gross domestic product, leaching out wage gains and damaging America’s global competitiveness.
These factors drove Congress and the president to enact health care reform. Since then, despite the fact that health care utilization typically increases as the economy recovers from recession, health care cost growth has been held in check and health economists increasingly agree that this is due to the structural reforms initiated by the ACA.
And, with federal subsidies and Medicaid expansion to help cover the working poor, the number of people who are uninsured in the country is going down. These are promising trends, but die-hard reform opponents continue to work to reverse them. Every recalcitrant governor, every contentious court decision impedes health reform from realizing its full potential, despite its proven success to date.
There are two Americas. One is prosperous, long-lived and healthy. The second comprises the working poor who are short-lived, disabled early and beset by chronic illnesses that could have been prevented — diabetes, heart failure, pulmonary disease. Those in this second America are people who have a job — maybe two — but do not earn enough to make ends meet.
We make special provisions for some of the most vulnerable in this group — children, the elderly and disabled — but millions of hard-working Americans fall through the gaps. And unfortunately, the ranks of America’s working poor are increasing, not shrinking.
An American born in one of our rural counties is likely to live a shorter life than a person in Algeria or Bangladesh. Meanwhile, Americans who live in prosperous urban regions have life expectancies that rival the healthiest places in the world. This disparity exists, and it takes money. It costs our economy, through lost worker productivity and the high price of treating people in emergency rooms when they cannot afford less expensive preventive care.
As designed, health reform aimed to erase health disparities. It pumped money into making affordable health care available to Americans in poorer, more rural states like Maine. It offered good jobs and billions in economic impact while improving the quality of care to all Americans wherever they live, whatever their income. It directed money to cost-effective primary care and dedicated scholarship funds to increase the number of doctors in rural and underserved areas, like much of Maine.
The New York Times recently reported that state-level refusal to expand Medicaid combined with the recent court ruling jeopardizing subsidies to residents of states on the federal exchange threaten to undo the national reform and create a state-by-state patchwork. This would effectively maintain the two Americas. The states that declined to expand Medicaid or design state exchanges are mostly the poorer, less healthy states. Right now, Maine is on this list.
Gov. Paul LePage has vetoed majority votes to expand Medicaid five times. If we continue in this direction, 12 percent of Mainers will continue to be uninsured while 96 percent of residents in nearby Massachusetts are insured.
Politics threaten to block health reform from fulfilling its promise: to bridge the yawning gap in health and economic potential between the two Americas. Partisan politics shouldn’t block Maine from reaping the benefits of health reform — both in better health outcomes and in expanded economic opportunity.
By: Christy Daggett, Policy Analyst, The Maine Center for Economic Policy; Published in The Bangor Daily News, August 19, 2014
“Obama’s Executive Order Rights A Wrong”: One Of The Most Important Positive Steps For Civil Rights In Last 20 Years
Little noticed in coverage of President Barack Obama’s signing of the Fair Play and Safe Workplaces executive order July 31 was a provision that has been called “one of the most important positive steps for civil rights in the last 20 years.”
The statement comes from Paul Bland of the public interest group Public Justice, quoted by Emily Bazelon of Slate. He’s right; what he’s referring to is a provision of the order that bars employers from forcing workers to bring workplace discrimination, sexual assault or sexual harassment cases only through arbitration. As Bazelon reports, the order applies to firms with federal contracts valued at more than $1 million. But that’s plenty.
The arbitration provision got little public attention after the signing, in part because business lobbyists were so busy carrying on about other aspects of the executive order.
As my colleague Christi Parsons reported, businesses are exercised about a rule requiring prospective federal contractors to disclose labor law violations dating back three years and government agencies to take those violations into account when handing out federal contracts. The idea is to goad employers into settling the violations before they apply for contracts.
Business mouthpieces complain that the provision will create a “blacklist” barring companies with even minor violations from hopping on the government gravy train. Repeat after me: “Tough.”
The arbitration provision, however, addresses what may be an even more important abuse. As a private venue for dispute resolution, arbitration may be an effective way to keep commercial disagreement from clogging court dockets. That’s true chiefly when all the parties come to arbitration with roughly equivalent resources.
When it’s used by employers against employees, or by corporations against aggrieved customers, and when it’s forced down complainants’ throats against their wishes, however, it’s a scourge.
Arbitration provisions have proliferated everywhere, and it’s a safe bet that many, if not most, people forced into arbitration didn’t even know they were subject to the requirement until after their dispute arose – arbitration clauses are buried in the boilerplate you sign when you enroll with a cable company, go to a doctor or hospital, or take a new job. Arbitration typically favors the bigger party — they know their way around the process better, and they can take better advantage of what are often very loose standards of evidence and testimony in arbitration.
The Obama order strikes at the heart of this injustice by allowing complaints about workplace discrimination or abuse to be arbitrated only with the consent of the parties after the disputes arise. Surprise arbitration clauses, in other words, are out.
It’s hard not to see the order as a reproach to the Supreme Court and other courts. Judges are big fans of arbitration, in part because it keeps tedious commercial disputes out of their hair. The key case upholding arbitration clauses involved AT&T and a customer dispute over the real cost of “free” cellphones sold by the mobile carrier.
A California federal judge and the 9th Circuit Court of Appeals rejected AT&T’s demand to compel arbitration. But the Supreme Court sided with the company in a 5-4 ruling (naturally).
This was a reflection of what legal scholar David Cole recently called the court’s “unremittingly conservative” narrowing of access to the judiciary to remedy legal wrongs. The Earl Warren Court, he observed in the New York Review of Books, “viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process.”
The Roberts Court has put its thumb on the other side of the scale.
The Obama order shifts the balance just a little bit back the other way.
By: Michael Hiltzik, Columnist for The Los Angeles Times; The National Memo, August 14, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 