AUSTIN, Texas (CN) - Attorneys for former Texas Gov. Rick Perry spent Wednesday morning arguing that their client shouldn't face trial on two felony counts that they called "disturbing."
During two hours of arguments in front of the state's highest criminal court, Perry's legal team and state prosecutors battled over the former governor's constitutional rights, the criminalization of political speech, and whether the charges - abuse of official capacity and coercion of a public servant - can even be dismissed before trial.
"The state should be judicially estopped," David Botsford, Perry's attorney, said. "All of our claims seek to ban a trial."
Wednesday's hearing was their last shot to spare the former governor from trial and was the first courtroom showdown in over a year. Attorneys on both sides have buried the visiting judge in the criminal case with mountains of legal briefs since the indictment hit 15 months ago.
Perry did not attend the hearing. He has called the indictment "baseless political charges" and said that his veto threat was "not only lawful and legal but right."
Visiting Judge Bert Richardson had refused to dismiss the indictment, first on a technicality and then on constitutional grounds, making way for Wednesday's showdown.
Inside the Court of Criminal Appeals, Perry's legal team and a state prosecutor used their allotted one-hour time arguing their positions before the court's eight judges.
Perry has been under indictment since last August when a Travis County grand jury charged him with abuse of official capacity and coercion of a public servant.
The felony indictment came after Perry followed through on threats to pull funding from Travis County District Attorney Mary Lehmberg's ethics investigation unit if she did not resign after a drunken-driving arrest.
When Lehmberg, a Democrat, refused to resign, Perry used his veto power to strip her office's Public Integrity Unit of more than $7 million that had been earmarked by the Legislature during its 2013 session.
The all-Republican Third Court of Appeals struck down the lesser coercion charge in July, but left intact the abuse of official capacity count.
Wednesday's hearing took up both issues: the lower court's refusal to dismiss the abuse of capacity charge and its decision to throw out the coercion charge.
Botsford tried to persuade the appellate panel that the lower court's decision to dismiss that count was accurate State prosecutor Lisa McMinn argued that it should be reinstated.
"They were faithful to this court," Botsford said of the Austin-based lower court. "Any statement that attempts to criminalize any political threat is absolutely protected in the First Amendment."
Botsford said the former governor never directly threatened the district attorney. He centered his arguments on the speech and debate clause, the separation of powers, and Perry's legislative immunity as the state's chief executive.
"These three claims are designed to prevent a trial," the Austin attorney argued. "(Perry) was wearing his legislative hat at that time. Therefore, a special prosecutor cannot prosecute a governor."
He said that a prosecutor inquiring into the motives of a governor is banned under the speech and debate clause.
"The danger of allowing a prosecutor to do this is mindboggling," he said.
While Botsford jumped from one argument to another, McMinn often found herself on the offense. The judges peppered the state prosecutor with questions, from hypothetical scenarios to how the case relates to court precedent.
"If the prosecutor threatened Gov. Perry to back off his threats on Lehmberg - is that criminal?" Judge Cheryl Johnson asked.
"Sounds like it," McMinn responded.
"We're not prosecuting just for the threat of the veto," she reiterated. "We're prosecuting the veto."
Botsford argued that a governor exercising his veto authority is "part of his core duties."
"Allowing core political speech to be criminalized is disturbing," he told the judges.
McMinn argued that the charges shouldn't be allowed to be dismissed absent a trial.
"This is still pretrial and there aren't any facts before the trial court," she said. "We don't want to have mini-trials before trial."
But Botsford disagreed.
"They're issues of law, not issues of fact," he said.
The court's ninth judge, Richardson, recused himself from hearing arguments as the visiting trial court judge in Perry's case.
Botsford was joined by defense attorneys Tony Buzbee and Thomas Phillips, a retired chief justice of the Texas Supreme Court.
Perry has blamed the ongoing legal drama in his home state for his second failed presidential campaign that lasted just 99 days this year.
No decision is expected from the appellate court for at least the next few weeks.
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