08/21/2014 06:11 pm ET Updated Oct 21, 2014

Governors Perry, Christie, and Cuomo: Hardball Politics or Criminal Conduct?

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What do Governors Perry, Christie, and Cuomo have in common? All three are governors of big and important states, all three are accomplished bullies, and all three have used bullying tactics recently for overreaching political objectives. Governor Perry, a Republican, tried to coerce the Travis County District Attorney, a Democrat, into resigning and when she refused, he vetoed funding for the Public Integrity Unit that Perry wanted to get rid of. Governor Christie, a Republican, sought the endorsement of the democratic mayor of Fort Lee, New Jersey, and when he refused to endorse him, Christie retaliated by dumping thousands of motorists into a massive traffic graveyard on the George Washington Bridge. Governor Cuomo, a Democrat, wanted the New York legislature to enact a package of so-called "Public Trust" laws, and when the lawmakers balked, Cuomo retaliated by empaneling a prosecutor-studded investigation commission to investigate the lawmakers and use its massive subpoena powers to expose and embarrass them.

Governor Perry has been indicted for criminal coercion by using his official position to threaten another person with harm unless that person comply with the governor's demands. Perry has called his indictment a "farce," and editorials have questioned its validity. But the essence of the crime of coercion, in Texas, and also New Jersey and New York, is simple and straightforward: it consists of compelling a person by intimidation to engage or refrain from engaging in certain conduct that the person threatened has a right to engage in. Our culture disparages bullying, and we often punish bullies, whether in schools, workplaces, or the military. Why should governors be exempt when they abuse their power and, like other bullies, intimidate persons who are at their mercy into succumbing to their demands?

To be sure, the line between bare knuckle politics and criminal coercion is vague. Governor Perry clearly possesses the legal authority to veto the funding legislation. And Governor Cuomo clearly has the legal authority to create the Moreland Commission to investigate government misconduct. It's the reason for the use of this power that matters. Criminal law focuses on the actor's mental state. Only Governor Christie, it appears, lacks any legal authority for his bizarre and inexcusable conduct in willfully engineering the injurious traffic-jam stunt.

Is Governor Perry's indictment an overreach by a misguided special prosecutor? I don't think so. The charges of abusing his office and coercing a public official are well within the Texas criminal statutes. His threat to force out of office District Attorney Rosemary Lehmberg was motivated by Perry's revulsion at the work of Lehmberg's Public Integrity Unit, which was investigating Perry cronies and donors for financial fraud and other wrongful conduct. Threatening to defund the Unit unless Lehmberg resigned would seem to fit well within the coercion statute. To be sure, Lehmberg had seriously compromised her position by getting arrested for drunken driving. And she made a fool of herself at the police station. But Perry didn't seek her resignation because of the arrest. The arrest was merely the pretext for Perry to gratuitously insinuate himself into the case, and to throttle her anti-corruption unit. With her out, he could appoint a republican District Attorney who would neutralize the unit.

Governor Christie's conduct involves a tacit threat to all New Jersey political officials; endorse me or you will be punished. That may be the myriad dirty stuff of hardball politics, but Christie took the threat to an unusually toxic level. And his attempt to pawn off his personal liability on underlings is not the sort of conduct that endears him to friends or foes. And by the way, he's still being investigated by federal and state prosecutors.

Governor Cuomo also made tacit threats which appear to fit well within New York's criminal coercion law. According to one of the co-chairs of the Moreland Commission, William Fitzpatrick, the District Attorney of Onondaga County, Cuomo threatened the Legislature dozens of times that I they didn't pass his ethics bill, he was going to appoint a commission to investigate them, which he did. And the commission used its vast investigative machinery punitively, issuing a flood of subpoenas to every lawmaker, law firm, and business with which the lawmaker is or was associated. The legislature ultimately capitulated to Cuomo's demands by enacting a few modest ethics laws, and Cuomo, claiming victory, disbanded the commission. Is Governor Cuomo guilty of coercion? According to the clear language of N.Y. Penal Law § 135.60, sub. 8, person is guilty of coercion if he "induces another person [lawmakers] to engage in conduct which the other person [lawmakers] has a legal right to abstain from engaging in by means of instilling a fear that, if the demand is not complied with, the actor or another will use or abuse his position as a public servant by performing some act within or related to his or her official duties in such manner as to affect some person [lawmakers] adversely." It seems fairly clear, no?

Governors Perry, Christie, and Cuomo appear to have engaged in the type of intimidating and coercive tactics that all bullies use. And coercion, no matter who does it, is a crime, not politics as usual. Perry got caught. Christie and Cuomo have escaped so far.