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https://jonathanturley.org/2021/08/...rotecting-democratic-legislators-from-arrest/

Texas Supreme Court Lifts Restraining Order Protecting Democratic Legislators from Arrest
by jonathanturley




Yesterday, we discussed the order of State District Judge Brad Urrutia to block the arrest of House Democrats who fled the state to prevent a quorum to pass election reforms in a type of flight filibuster. It did not take long for Urrutia to be reversed. Last night, the Texas Supreme Court lifted the temporary restraining order. The decision has not only exposed the Democrats to arrest but it has exposed another claim of bias against the PolitiFact, which lambasted Sen. Ted Cruz (R., Tx) who claimed that the legislature clearly had the authority to order such arrests.

I previously discussed both the state lawsuit and a poorly written and poorly conceived federal filing.

The earlier discussion noted that the authority of the Texas legislature to compel the appearance of members (which is the same as the provision in U.S. Constitution) is expressly stated in the state constitution. While the legislators raised creative arguments based on the limits imposed of criminal arrests (and arresting officers) generally, the express authority stated in the constitution rebutted such claims. Nevertheless, there is virtually no case on the provision, which has (thankfully) been rarely used.

The lack of case law was at the heart of the “fact check” of the PolitiFact. Such fact checks are often challenged as biased, including the well-known fact checking at the Washington Post (here and here). Such objections should be distinguished from complaints over distorting backgrounds, historyhistory, or the law. Rather, these are factual claims including claims made in “fact check” column. Many of these articles come in pieces with a clear political slant against conservatives, including clearly false accounts.

That bring us to the latest such example. PolitiFact ran a piece basically calling Cruz a liar for his saying that there was “clear legal authority” for the order to arrest the members. The Post said it was clearly “false” when it was not. The Post has relied word “clear” as the basis for its categorical denial. That was where the bias was clear.

The Post is correct that there is virtually no case law on the provisions in either the federal or state constitutions. However, Cruz is right to claim that there is clear legal authority if he was relying on the constitution.

The legislature has relied on that authority for its own rule allow for a Motion for Call of the House, directing the House’s sergeant-at-arms to order state police to force the wayward members back to the floor. Rule 5 (Sec. 8) specifically refers to an “arrest”: “All absentees for whom no sufficient excuse is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found.”

That is clear legal authority. It may not be dispositive authority according to these Democratic members. However, the federal lawsuit primarily hit the House rule on the meaning and limits governing “arrests.”

Cruz was clearly reasonable in claiming his view of clear authority. Reasonable people can disagree but he had an express constitutional provision supporting his position.

If someone was discerning enough to read the column, they would see the glaring contradiction between the analysis and the conclusion. The Post knows that most people will not read much past the conclusion that Cruz said something false. However, the analysis simply says that “because absent lawmakers aren’t charged with a crime, it’s unclear how the use of the word ‘arrest’ should be interpreted in this context. This is because no Texas court has reviewed how this provision is to be enforced. Thus, there is no legal clarity.”

It was reminiscent of the fact check of the former White House press secretary Sarah Huckabee Sanders by Glenn Kessler. The Post assigned her two “Pinocchios” for saying that Comey’s actions “were improper and likely could have been illegal.” Yet, the Post concluded that the memos were, despite Comey’s denial, FBI material and that he violated FBI rules in removing and releasing such information. It also accepted that employees under Comey as director could well have been fired for such violations. It also agreed that the memos might have been either classified or privileged, even though there has been no final determination. Regardless, the Post awarded two Pinocchios for Sanders stating that Comey’s actions were “improper and likely could have been illegal.”

Cruz has demanded a correction from the Post in light of the Supreme Court decision.

It is unlikely to do so. I would not object to PolitiFact to saying that some have and would contest the legal basis for the arrest order. It could even say that many would say it is not clear without case authority. However, it is clearly biased to claim that it was false for Cruz to claim clear legal authority. Obviously, the Texas Supreme Court viewed it as a clear because it reversed the district court within 24 hours.

PolitiFact should correct its column. Indeed, it should have been corrected before the Texas Supreme Court decision.
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