Just found this on the Volokh Conspiracy:
Is the indictment of Texas Gov. Rick Perry inconsistent with a Texas Court of Appeals precedent (as to the ‘coercion’ count)?
The indictments for abuse of official capacity and coercion of a public servant came late Friday, after a special prosecutor spent months calling witnesses and presenting evidence that Perry broke the law when he carried out a promise [using his veto power] to nix $7.5 million over two years for the public integrity unit run by the office of Travis County District Attorney Rosemary Lehmberg. The Democratic official was convicted of drunken driving, but refused Perry’s repeated calls to resign.
But — though I stress that I’m not an expert on this Texas statute — it seems to me that we’ve seen this movie before (okay, maybe playing in a small art house to a tiny audience). Here are the facts of State v. Hanson (Tex. Ct. App. 1994):
The state alleged that [County Judge Regina Hanson] intentionally and knowingly threatened to terminate the county’s funding of the salaries of a deputy district clerk and an assistant district attorney in an attempt to coerce the district judge into firing the county auditor and the county attorney into revoking a misdemeanant’s probation.
So we see here a threat to take action as a public servant in attempting to influence another public servant — a district judge — in specific performance of his official duty. What did the court say in Hanson?
Threats may portend either lawful or unlawful action. First Amendment protection is extended to the former but not the latter. Therefore, a criminal statute that seeks to punish threats must clearly distinguish between an actionable or true threat and protected speech.
Judge Hanson had to guess at the meaning of section 36.03(a)(1) and its application to her official conduct because section 36.01(1)(F) [now 1.07(a)(9)(F) -EV] failed to give fair warning of the nature of the threat prohibited. Did the term “threat” encompass a threat of lawful action or only prohibit a threat of unlawful action?
Read the whole thing if you have a mind to, it’s interesting, but it looks like the prosecution’s case is very shaky on the facts and the law & almost certain to be overturned even if she wins.