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The Curiously Relevant Case of Rick Perry
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The Curiously Relevant Case of Rick Perry

Obviously official acts can still be read as potential crimes if an enterprising prosecutor so desires.

Then-President Donald Trump at the White House on July 8, 2019, as then-Energy Secretary Rick Perry speaks about the Trump administration's environmental policies. (NICHOLAS KAMM/AFP via Getty Images)

Regarding the legal (and legalistic) issues related to the current raft of criminal cases lodged against former game-show host, occasional pornographic-film performer, and disgraced ex-president Donald J. Trump, I commend to you the expert opinions of Dispatch legal analyst Sarah Isgur and frequent Advisory Opinions podcast guest David French of the New York Times.

For my part, I have a narrow, but relevant, example to put forward: the felony case against former Texas Gov. Rick Perry, who was indicted by a Travis County prosecutor entrusted with countering political corruption throughout the state of Texas. The prosecutor, a wildly corrupt and out-of-control drunk named Rosemary Lehmberg, indicted Perry for threatening to veto funding for a specific state expenditure: her office.  

While she was a Travis County prosecutor, Lehmberg was arrested for drunk driving, which is not a great surprise for someone who was consuming about two liters of vodka a week for more than a year in addition to whatever other drinking she did. (I sympathize.) She was pulled over after driving erratically, found with an open bottle of vodka in the car, and came in at about three times the legal blood-alcohol content. That is not great, but the much worse part is that while in custody, she attempted to use her position to bully and threaten sheriff’s officers and other personnel into giving her special treatment and letting her go. She threatened to have them arrested and jailed, among other things.

Perry rightly understood this to be an unbearable outrage against the public interest in clean and fair government, and sought—unsuccessfully—to have Lehmberg removed from office. He subsequently announced that as governor he would use his veto powers to block state funding for the office as long as Lehmberg was the incumbent—if Travis County wanted to protect its corrupt prosecutor, Travis County could pay her.

Lehmberg retaliated by indicting Perry on felony corruption charges on the theory that, while the governor of Texas has entirely open-ended veto power, it was an act of political corruption for him to use that veto power to try to pressure her to leave office. That was pure nonsense, as the courts eventually decided, and everybody knew it was a vindictive, frivolous case: another outrageous abuse of power from a prosecutor inclined to the abuse of power. Perry was at the time campaigning in the Republican presidential primary while under felony indictment—Donald Trump is not the first to have done so.

As our legal writers have observed, there isn’t anything in the statutes or in the Constitution that says you cannot indict a sitting president. There is a Justice Department memo that says the Justice Department won’t do that, and there is the fact that the president, as head of the executive branch, would in effect be prosecuting himself if he were tried under federal law while in office. There isn’t anything that says a local prosecutor cannot indict a president either—that this is not the usual practice is a matter of custom that had not been much challenged before the presidency of Donald Trump, who is a profoundly corrupt, indecent, and immoral man, albeit one who has not yet been convicted on any charge. It doesn’t have to be that way, and it hasn’t always been: President Ulysses Grant was arrested while he was president, and apparently thanked the arresting officer—this having happened in the 19th century, it is worth observing that the police officer who arrested the sitting president was black—and praised him for doing his duty. Grant was a reckless horseman, and the officer had, apparently, given him a prior warning. 

I like the story about President Grant, but we don’t live in Ulysses Grant’s world—we live in Rosemary Lehmberg’s world. 

The question about legal immunity for presidents mainly has to do with official acts, i.e., with actions taken in the course of performing the duties of a president. Donald Trump believes that such immunity should cover all conduct for presidents, including ordinary crime. It is easy to understand why such a figure as Trump would prefer this, but almost nobody takes that argument seriously. There are some serious reasons to doubt that U.S. presidents are—as opposed to should be—legally entitled to any official immunity, including for plainly official acts while president. As Justice Clarence Thomas pointed out last week during oral arguments for the case involving these questions, there isn’t anything in the Constitution that explicitly confers such immunity on presidents, while there is plain-text discussion of immunity for members of Congress.

The example of Rosemary Lehmberg is one little piece of evidence that obviously official acts within the core executive powers of a chief executive (which a governor is) can nonetheless be read as potential crimes if an enterprising prosecutor so desires. The cases may come to naught, but that doesn’t make them necessarily any less politically useful to partisans or toxic for democratic procedure.

None of this is especially relevant to the Trump case at hand, which mostly involves private conduct that would be outside the scope of any plausible immunity claim. Like many of my lawyer colleagues, I was somewhat mystified by Jack Smith’s inclusion of Trump’s desire to fire one attorney general and replace him with another as part of the criminal case against him—choosing his own attorney general is something presidents get to do, provided there is no evident crime involved, such as taking a bribe to fire one Cabinet member and replace him with another. Firing a political appointee because he will not toe the political line is something that would be very hard to understand as a crime, even in the context of the broader Trump-led coup d’état effort after the 2020 election, which was—in my view and, I am confident, in the view of any reasonable jury that should ever get to consider the case in full—a criminal conspiracy. 

Consider, for example, the murder case against Barack Obama. There wasn’t one. In my view, President Obama should have been impeached and removed from office after ordering the assassinations of two American citizens—jihadist social-media propagandist Anwar al-Awlaki and his teenage son—who were killed not in the heat of battle but after being put on a hit list (Obama’s lieutenants bragged to the New York Times about it) and targeted for extrajudicial killing. What Barack Obama did wasn’t ordinary criminal murder—it was much worse than that. A self-respecting Congress would have acted against him (Sen. Rand Paul, before he devolved into … whatever it is he has become … tried to do so) and drawn a bright line in policy regarding the assassination of American citizens.

But Congress failed to act. Would it have been better, from a civic or constitutional point of view, if some prosecutor had attempted to construe Obama’s national security policy as a murder conspiracy? I do not think that it would. There are a lot of variations on the theme of Rosemary Lehmberg out there, and a lot of Republican answers to Rosemary Lehmberg out there, too. 

There are plenty of plausible charges upon which to convict Donald Trump. And for every plausible felony charge against him, there are 14,697 non-criminal reasons he should never again be entrusted with any kind of political power and never should have been in the first place. The scars of the Trump presidency will be on our constitutional order for generations, and the issue of indicting, trying, and convicting former presidents for acts taken while in office will be part of that. Some kind of qualified immunity for plainly official acts, both during the term in office and after, seems to me a reasonable measure—but it also seems to me that this is a question for Congress, not a question for the Supreme Court. As Justice Thomas noted, there isn’t any obvious textual source for any claim of immunity for presidents. An immunity statute written by Congress would do well to include a provision permitting the removal of such immunity (perhaps by a two-thirds vote or as part of an impeachment sentence) in the case of truly outrageous offenses done under the color of official acts. 

Rick Perry was indicted on felony charges for threatening a veto. The case against Donald Trump isn’t anything so obviously vindictive or trivial. But the history of our republic does not begin with Donald Trump and—one hopes—it will not end with him, either. This is something we need to get sorted out before there is an even more corrosive test case. The taste for tyranny is not limited to men as lazy and stupid as Donald Trump—and we simply have to prepare for the possibility of a more competent and capable demagogue.

Kevin D. Williamson's Headshot

Kevin D. Williamson

Kevin D. Williamson is national correspondent at The Dispatch and is based in Virginia. Prior to joining the company in 2022, he spent 15 years as a writer and editor at National Review, worked as the theater critic at the New Criterion, and had a long career in local newspapers. He is also a writer in residence at the Competitive Enterprise Institute. When Kevin is not reporting on the world outside Washington for his Wanderland newsletter, you can find him at the rifle range or reading a book about literally almost anything other than politics.