“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
“Bonzo Goes Bonkers”: Boehner’s Contempt For Obama Reaches Tipping Point
As a rule, those who ask House Speaker John Boehner (R-Ohio) about his relationship with President Obama tend to hear the same answer: the two leaders “get along fine,” the Ohio Republican likes to say.
But as Boehner’s frustrations mount, his commitment to a respectful tone has disappeared. The Speaker sat down with KTGO in North Dakota on Friday and showed real contempt for the president with a tone that seemed unusually caustic for Boehner.
Speaker John Boehner (R-Ohio) blasted President Obama’s domestic and foreign policies in a recent radio interview, saying Obama was “not prepared for the job.” […]
Boehner also blamed global tensions on Obama’s “apology tour” five years ago.
In political science circles, there are often spirited debates about whether anyone is ever truly “prepared for the job” of the presidency, but the fact remains that Barack Obama has some of the most significant accomplishments of any president in a generation, even in the midst of crises few of his predecessors have had to endure. Boehner, on the other hand, is routinely ignored and bullied by his own members, struggles to complete even routine legislative tasks, and his most notable accomplishment as Speaker – indeed, arguably his only accomplishment – was a government shutdown with no apparent purpose.
One of these two leaders is probably “not prepared for the job,” but it’s not who Boehner thinks.
As for the Speaker’s reliance on the “apology tour” talking point, it’s a painfully dumb argument, but more importantly, it’s beneath Boehner’s office. We expect lazy, recycled rhetoric from random talking heads on Fox, not the Speaker of the House.
Wait, it gets worse.
“There’s nobody more frustrated than I am, but we’re the minority party,” Boehner added.
Well, not really. Boehner is the Speaker of the House because his party isn’t in the minority, at least not in the House. It’s a divided government, but Boehner is nevertheless the ostensible leader of the majority party in one chamber.
Boehner said he is committed to reforming the country’s “broken” immigration system, but until “we have an administration committed to security of the border, it won’t happen.”
“We’ve tried and tried and tried, but he just won’t go there,” he said.
Wait, does the Speaker now want sympathy? The truth is, the Obama administration has already improved border security, and would improve it further as part of comprehensive immigration reform. Boehner won’t even bring a popular, bipartisan bill to the floor, refuses to unveil an alternative, refuses to negotiate with Democrats, and refuses to even consider a compromise.
“We’ve tried and tried and tried”? Have all of these efforts happened in secret because when it comes to immigration policymaking, it appears the only folks who aren’t trying are Boehner and his far-right caucus.
As for the larger point, does the Speaker believe such rhetoric will improve governing prospects over the next couple of years? Almost certainly not, though by all appearances, Boehner no longer cares.
By: Steve Benen, The Maddow Blog, August 18, 2014
“Why The GOP Should Tank The Midterms”: The “Party Of No” GOP Does Not Want To Actually Govern
Several statistical models used to forecast the midterm elections give the Republican Party a better-than-even shot at seizing the Senate.
This should terrify Republicans.
Look into Speaker John Boehner’s exasperated eyes and think about how much he has suffered the last two years trying to contain his tea–crazy Republican caucus. Now double it. Then add an extra dose of Sens. Ted Cruz and Rand Paul. And then take away the ability to blame Harry Reid for the failure to get any Republican bills passed in the Senate.
Add it all up, and what you get is not a glorious triumph of a unified army on an unstoppable march to the White House, but an expansion of the GOP civil war into a two-front bicameral battle.
Recently asked by Politico to explain what he would pursue with a GOP Senate, Boehner said, “Nobody’s given it that much thought.” Probably because thinking about it would give him a panic attack no amount of merlot could cure. What can he and his Senate counterpart possibly propose to position the party for a general election in 2016 that won’t be mocked and blocked by the Tea Party?
Consider Boehner’s most recent humiliation over legislation to address the child migrant influx.
While the politically rational Boehner tried to keep the immediate crisis separate from the messy politics of immigration reform, Sen. Cruz whipped up the House rank and file to refuse support for any bill that did not terminate the president’s executive order providing waivers to some undocumented immigrants already in America who arrived as children. Lacking the votes, Boehner junked his narrow proposal and bowed to the anti-immigration forces.
As a result, just one month after Boehner had decided that Republicans were better off avoiding any immigration reform votes, he had to schedule an incredibly controversial one. Now nearly every House Republican is on record in favor of deporting people who grew up in America and who have no significant connection to their birth country, further worsening Republican efforts to reach out to the Latino community in advance of the next presidential election.
If the Tea Party gets its mitts on the Senate too, the humiliations will only become more frequent and more public.
Now obviously, under normal circumstances, taking over the Senate while retaining the House would be a good thing. Republicans would control the national agenda, deny Obama a free hand in further shaping the judiciary, and be one step away from fully controlling Washington after the 2016 presidential election. They could pass whatever legislation they wanted, and put Obama in the unpleasant position of, having spent years complaining of GOP obstructionism, now having to constantly veto things himself, or swallow what Republicans feed him.
But this is not a normal circumstance.
There is a fundamental breakdown of trust between the party leadership and the conservative rank and file. Attempts by the leadership to tone down rhetoric, calibrate policy positions away from the ideological fringes, and avoid all-or-nothing legislative battles are irrationally decried as surrender. Such pragmatism would be crucial at the moment Republicans are in full control of Congress and carry a heightened responsibility to help govern, but they will be in no position to deliver. If the past few years have taught us anything, it is that the “party of no” GOP does not want to actually govern.
Republicans may want to take solace in the fact that Boehner has been able to contain the worst impulses of the party’s right flank. He was able to ram through bills to provide hurricane disaster relief, expand domestic violence protections to LBGT survivors, stave off cuts to Medicare reimbursements for doctors, and avoid the insolvency of the highway trust fund, all over the objections of conservative ideologues. And while he let Cruz’s followers shut down the government in 2013, he made sure it didn’t last long and that there would not be a repeat performance in an election year (though perhaps one shouldn’t be overconfident until Congress actually passes legislation to fund the government by the next Sept. 30 deadline).
That track record suggests a Republican-controlled House and Senate wouldn’t completely jump the rails. But even when Boehner wins, he wins ugly. And if the GOP wins the Senate, these fissures will constantly be laid bare in the upper chamber too, preventing the leadership from presenting a consistent and welcoming face to the general electorate, and putting Republican presidential contenders in one awkward position after another.
A titanic budget battle, with the usual mix of unreasonable demands and threat of government shutdown, will be irresistible to the Tea Party once Republicans run all of Congress. But an outside-the-Beltway candidate like Jeb Bush or Chris Christie, inclined to run as someone who can end the federal government’s chronic dysfunction, will be hard-pressed to choose between criticizing Washington or praising the priorities of the Washington Republicans. If another natural disaster hits — especially in a key primary state or swing state — and conservatives again fight against emergency aid, presidential candidates who have a vote in Congress will be forced to choose between the compassion of the average voter and frugality of the debt-obsessed right-winger.
Those are the sorts of headaches that await Republicans if they win the Senate. And what exactly would they gain? Yes, they would be better able to stop Obama from further shaping the judiciary. But so long as they keep the House, they don’t need the Senate to bottle up Obama’s legislative agenda. Nor do they need to win the Senate outright in 2014 to win both the White House and the Senate in 2016. The few benefits do not outweigh the costs stemming from expanded governing responsibilities.
Republicans who want to win big in 2016 should ask themselves: Do we really want to export the House circus to the Senate next year? Or do we want to take a little extra time to sort out our own issues, and give our next presidential nominee more latitude to define the party’s agenda for the future?
By: Bill Scher, The Week, August 11, 2014
“The Speaker In Wonderland”: Boehner Sees Basic Current Events In The Reflection Of A Fun-House Mirror
The headline, at first blush, doesn’t seem amusing. House Speaker John Boehner’s (R-Ohio) latest op-ed – a 700-word piece for Politico – begins, “Do Your Job, Mr. President.”
It gets funnier, though, once the piece gets going. Boehner (or whoever writes these pieces for him) falsely claims, for example, to have “sent more than 40 jobs bills to the U.S. Senate.” He also claims the president “rewrote the law” by helping Dream Act kids, which isn’t at all what happened.
But the crux of the piece is about tax policy. “Our tax code, like our immigration system, is badly broken,” Boehner argues. “Because we have the highest corporate tax rate in the developed world, American companies have an incentive to relocate their headquarters overseas to lower their tax bill.”
That’s not quite right. We have a relatively high corporate tax rate, which corporations don’t actually pay thanks to holes in the tax code. President Obama has proposed cutting the rate while closing existing loopholes as part of a broader tax-reform package.
Republicans have refused, which made this part of Boehner’s op-ed plainly ridiculous, even for him.
…President Obama is hinting that he may act unilaterally in an attempt to supposedly reduce or prevent these so-called “tax inversions.” Such a move sounds politically appealing, but anything truly effective would exceed his executive authority. The president cannot simply re-write the tax code himself.
The right choice is harder. President Obama must get his allies on Capitol Hill to do their job. Senate Democrats, including Senate Majority Leader Harry Reid and Senate Finance Chairman Ron Wyden, pay lip service to tax reform, but they have utterly failed to act.
It sometimes seems as if Boehner lives in an entirely different reality – one in which the Speaker sees basic current events in the reflection of a fun-house mirror.
Let’s briefly review reality in the hopes of refreshing Boehner’s memory.
As we last discussed in February, House Republicans originally gave tax reform the special H.R. 1 designation – a symbolic bill number intended to convey its significance – with the intention of unveiling House Ways and Means Committee Chairman Dave Camp’s (R-Mich.) plan in the fall of 2013. Camp had spent three years of his life on a tax-reform overhaul, and House GOP leaders saw it as an important priority.
And then they changed their minds. In November 2013, Republicans no longer wanted to tackle the difficult task of overhauling the tax code, choosing instead to complain about “Obamacare” full-time. Shifting their attention to policy work, the party decided, would have been an unwelcome distraction.
By March 2014, House GOP leaders decided to give up on the idea altogether. Sure, GOP lawmakers could try to accomplish something on the issue, but the effort would almost certainly divide Republicans, and there was no guarantee they’d get a bill done, anyway. Worse, if they succeeded, it might offer an election-year win for President Obama, the very idea of which was a non-starter.
Asked in the spring about the substance of a tax-reform bill, Boehner said, quite literally, “Blah, blah, blah, blah.”
And now the House Speaker, who hasn’t even considered bringing the issue to the House floor, is whining in an op-ed that Democrats “pay lip service to tax reform, but they have utterly failed to act.”
This kind of chutzpah is kind of scary. Boehner seems to think we’re fools, unable to remember what he said and did just a few months ago, and unable to access Google long enough to check.
I can appreciate the Speaker’s frustration – he’s proven himself incapable of governing, and when he tries, his own members betray him – but that’s no excuse for shameless dishonesty.
“Do Your Job, Mr. President”? This from the Speaker who wants tax reform but won’t even try to pass it through his own Republican-led chamber? Which of these two leaders is failing to do his “job”?
By: Steve Benen, The Maddow Blog, August 11, 2014
‘From Embattled To Pitiful”: Boehner Has A New Pitch To Defend Congressional Ineptitude
About a year ago, a reporter started to ask House Speaker John Boehner (R-Ohio) about Congress’ “historically unproductive” term. “That’s just total nonsense,” he snapped, before the question was even finished.
In reality, it wasn’t nonsense at all, and the question appears even more apt now. The fact remains that this is the least productive Congress since clerks started keeping track nearly a century ago.
Soon after, Boehner switched gears and tried to turn the argument around – sure, he said, Congress isn’t legislating, but that’s a good thing. According to Boehner, Congress “should not be judged by how many new laws we create,” but rather, Congress “ought to be judged on how many laws we repeal.”
This effort to rebrand failure also posed a problem: Congress hasn’t repealed laws, either. By either standard, the legislative branch was failing miserably.
But the hapless House Speaker clearly remains sensitive about Congress’ ineptitude, which seems to have led him to an entirely new argument: Congress isn’t working, but the Republican-led House is awesome.
As he began his annual month-long, 14-state bus tour this week, the Ohio Republican left many of the red-meat issues that rev up his base back in Washington. Instead, he’s trying to promote a different message: Republicans are doing the legislating while everyone else is slacking off. […]
“When you hear all this stuff about the Congress, understand there are two bodies in the Congress,” Boehner said during a morning fundraiser in Bolingbrook, a suburb of Chicago. “One is working our rear ends off, and frankly, you’d be surprised all the stuff we do is done on a bipartisan basis. [Senate Majority Leader] Harry Reid didn’t even try to pass a border bill that we passed last Friday.”
And it’s at this point when the House Speaker made the transition from embattled to pitiful.
Boehner may feel slightly embarrassed for creating an accomplishment-free legacy for himself, and he’s no doubt frustrated by the fact that Congress’ approval rating has fallen to levels unseen since the dawn of modern polling, but this latest tack to rationalize failure is laughable.
Consider the example Boehner himself is using: the GOP-led House passed a “border bill,” while the Democratic-led Senate ignored it. Proof of House Republicans working their “rear ends off”? Not for anyone who was actually awake and watching Congress last week.
The House’s “border bill” was a ridiculous joke that even Boehner didn’t like. The Speaker pushed an entirely different bill; his own members decided to ignore his weak leadership (again); causing Boehner to give up and tell right-wing extremists to write whatever they wanted, without any regard for whether it would become law.
It was a pathetic effort to ram through a symbolic gesture, not a legitimate effort to pass a real bill. That Boehner is using this as a great example of how effective House Republicans are helps prove the exact opposite point.
On the surface, it stands to reason both sides are going to blame the other – in this do-nothing Congress, the Democratic Senate wants voters to blame the Republican House and vice versa. None of this is surprising.
But there’s an objective truth available to anyone who wants to see it. This Congress could approve immigration reform, tax reform, ENDA, and a minimum-wage increase, among other things, were it not for the no-compromise, far-right party dominating the U.S. House. That’s just the reality.
Boehner, taking orders instead of giving them, has approved a bunch of symbolic, partisan bills that no one, including Republicans, expect to become law, but that’s not governing – it’s self-indulgent posturing. Until the Speaker is prepared to acknowledge the difference, Congress will remain a national embarrassment.
By: Steve Benen, The Maddow Blog, August 7, 2014
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