Rick Perry Prosecutors|Push for Trial

AUSTIN, Texas (CN) - The veto threat at the center of former Texas Gov. Rick Perry's criminal saga is not protected speech, prosecutors said in urging an appellate court to uphold the felony charges and grant oral arguments.

In a March 27 brief to the Austin-based 3rd District Court of Appeals, prosecutors Michael McCrum and David Gonzalez lambasted every step of Perry's defense, calling his First Amendment challenge wrong and his veto threat criminal.

They say Perry is not immune from prosecution for "extortionist and quid pro quo threats" he made to Travis County District Attorney Rosemary Lehmberg after her 2013 drunken-driving arrest.

"Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression," the prosecutors say in the Table of Contents to their 132-page brief.

"Appellant plainly misapplies the legal principle of separation of powers in his effort to avoid prosecution for his criminal acts," the prosecutors wrote. "Courts have repeatedly rejected similar pleas from public officials, including governors, who have been charged with committing crimes in connection with the abusive exercise of their governance."

The prosecutors say former governors Rod Blagojevich of Illinois and Marvin Mandel of Maryland used the same flawed argument. Both disgraced were convicted of felonies for abuse of power while in office.

McCrum and Gonzalez request oral arguments that would likely include a discussion "of the limits - and abuses - of power in our representative democracy and how it can be regulated."

Perry's legal team responded on April 3.

Attorneys Tony Buzbee and David Botsford asked the appellate court to reject the state's request because of time constraints.

They asked the court to act swiftly "because of the forthcoming conclusion of the legislative session and the corresponding minimal time frame afforded to Governor [Greg] Abbott to determine in which circumstances, if any, he can exercise his constitutional right to veto items of appropriation."

Abbott, now governor, was Texas attorney general when Perry's problems began.

Perry has maintained his innocence and vowed to fight the felony charges as he prepares for a widely expected second try at the Republican Party nomination for president. In the nearly eight months since the August indictment, his attorneys have said that count one of the indictment, official abuse of power, is vague and unspecific.

They say the second charge, of coercion, is facially unconstitutional and must also be dismissed.

Visiting Judge Bert Richardson, a Republican elected to the Court of Criminal Appeals in November, has refused to dismiss the indictment.

Perry is appealing Richardson's latest ruling to the all-Republican 3rd Court of Appeals. At least half of the courts six justices are Perry appointees.

Perry's attorneys wrote in a Feb. 25 brief to the court that Judge Richardson denied Perry's motion to quash and his pretrial application for writ of habeas corpus, challenging the constitutionality of the charges, "without fully grappling" the challenges.

The prosecutors say the two crimes Perry committed: coercion of a public servant, and abuse of official capacity, are designed "to protect the democratic process from more dangerous, sometimes less obvious forms of corruption."

"The common law doctrine of legislative immunity does not make a Texas governor above the law," the prosecutors say in the brief.

"Coercion crosses a line, landing firmly outside of the First Amendment protection of free expression and well within the authority of the Legislature to regulate and criminalize it."

They say the criminal statute "Coercion of a Public Servant," which has been in Texas' books for more than four decades, protects public servants such as Lehmberg from extortion and quid pro quo threats.

"After fourteen years as governor of our state and numerous prosecutions against Texas citizens under this statute, Mr. Perry asserts for the first time that this statue, on its face, is unconstitutional under the First Amendment to the U.S. Constitution. Appellant is wrong," the prosecutors say.

They also rip Perry's claim that the indictment should be dismissed because of his First Amendment rights to free speech.

"No public official can hide under the cloak of official authority or the First Amendment in order to commit the crime of coercion of a public servant and abuse of office, nor should he be able to assert that statutory definitions of criminal coercive conduct are overbroad," prosecutors wrote.

McCrum and Gonzalez say the state has more evidence to present, and that Perry's "as applied" challenge should be reserved for trial.

"At a trial on the merits, if a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection. There is no evidence for the court to review appellant's claim that the two statutes are unconstitutional as applied to him," the prosecutors wrote.

After Lehmberg, a Democrat, refused Perry's demand to resign, he followed through on threats to pull more than $7 million in earmarked funding from the ethics investigation unit her office led.

Perry claims that his actions were allowed by the Texas governor's veto authority.

He has continued campaigning in early primary states for an all-but-announced White House bid. He has hired a team of campaign staffers outside Texas and delivered a speech on foreign policy Monday at South Carolina's military college, The Citadel.

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