Dan Patrick Didn’t Accept a Bribe, Did He?

Ken Paxton’s best friends, the Defend Texas Liberty PAC, gave Dan Patrick $3 million at the end of June. What did they think they were getting?

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Tuesday, August 8, 2023

I.  Dan Patrick Gets a $3 Million Contribution from a Pro-Paxton PAC

         The most ferocious and outspoken defenders of Disgraced, Twice Indicted, Investigated by the F.B.I., Impeached and Suspended from Office Attorney General Ken Paxton is a group called Defend Texas Liberty PAC, which is basically two GOP megadonors named Tim Dunn and Farris Wilks, who contributed over $1.5 million each to the PAC.

         The PAC has made clear that it takes the political survival of Ken Paxton personally. After he was impeached by an overwhelming vote of the Texas House, the PAC’s congenitally-excitable spokesbot, former Rep. Jonathan Stickland, vowed revenge on the GOP members who’d voted to impeach. A vote to impeach Paxton, Stickland wrote on Twitter, “is a decision to have a primary.”

         “Wait till you see my PAC budget,” he later boasted.

         At the end of June, Defend Texas Liberty PAC gave a $1 million contribution and a $2 million loan to Lieutenant Governor Dan Patrick, by far its biggest contributions this year; in fact, 91.74% of all the contributions the PAC made this year. The contribution came five days after the Texas Senate adopted rules that gave broad and unprecedented control over the impeachment proceedings to – checks notes – Dan Patrick (more on that below).

         Now look, people give political contributions every day, and always in the name of “good government.” And you’d think $3 million would buy a lot of good government. When Defend Texas Liberty PAC, whose sole current raison d'être is to prop up Ken Paxton, gives anyone $3 million, it’s certainly reasonable to wonder what it thought it might get in return for such a prodigious investment.

(Ken Paxton, the hero of Defend Texas Liberty PAC, whose impeachment trial begins September 5.)

II.   Dan Patrick Is the Fulcrum of the Whole Paxton Impeachment

         Since the beginning of the Paxton impeachment process, the outsized role of Dan Patrick has been a feature, not a bug. In previous impeachments (historical note: both presided over by men named Hobby) the role of the presiding officer was just that – to preside. They could make ruling on matters, but they were subject to being overruled by the senators themselves. The Senate as a body was conducting the impeachment, not the Lieutenant Governor.

Not so this time.

(Would you buy a used car from this man?)

         Patrick is the most powerful Lieutenant Governor in Texas history because he has imposed his personal and ideological stamp on the Texas Senate in unprecedented ways. And, while I am sure he’d like to give credit for the Impeachment Rules to the senators, there is no doubt his fingerprints are all over them.

II-A.  The “Easter Eggs” in the Senate Impeachment Rules

         In video games, an “Easter egg” is a message, image, or feature hidden in software, a video game, a film or another, usually electronic medium. In the Senate impeachment rules, an “Easter egg” is a seemingly fair rule or process that actually gives an advantage to one side or the other.

         The biggest Easter egg in the Senate rules is the role of Senator Angela Paxton, Ken Paxton’s wife. Rule 31 a) requires her to participate in the proceedings, and b) bars her from participating in deliberations or voting on any matter, motion, or question. At first, this seems like a loss to Ken Paxton, since her favoritism and her vote for him were never in question.

         Her presence, though, has tactical value for her husband. With her “present/not voting” during the trial, 21 votes will be required to convict. If she was recused, it would only take 20. From the perspective of counting heads to convict Paxton, it would be better if she was not there at all.

         The second biggest Easter egg is the requirement (in Rule 25) that the Articles of Impeachment be proven “beyond a reasonable doubt.” This is the standard used in criminal trials, although Ken Paxton’s life and liberty are not at risk in this proceeding. When Governor James “Pa” Ferguson was impeached in 1917, the House managers were required to prove the articles by a preponderance of the evidence, the standard used in most civil proceedings. In 1975, though, at the impeachment of Judge O.P. Carrillo, the burden of proof was “beyond a reasonable doubt.”

         I could find no rationale for the increased burden in the Carrillo trial; presumably it is the precedent for the same standard in the Paxton trial. Suffice it to say that the higher burden of proof makes it harder to convict Paxton, even though that higher burden is not necessarily justified by any risk to his life or liberty.

         The third biggest Easter egg allows the defense to dismiss an Article of Impeachment upon a majority vote, while requiring a 2/3s vote to convict. Again, this favors the defendant by lowering the number of senators/jurors who can vote to dismiss to 16 while keeping the number required for conviction at 21.

II-B.  The Unchallengeable Power of the Lieutenant Governor

         The Rules of Impeachment also vest enormous discretion and authority in Dan Patrick. For instance, they bestow upon the Lieutenant Governor the power to make rulings on all pre-trial motions, excepting only those that would dismiss an Article of Impeachment. The Lieutenant Governor’s rulings are not debatable or appealable.

         Consider the shift in language and tone between the 1917 Ferguson impeachment, the 1975 Carrillo impeachment, and the 2023 Paxton impeachment:

         1917: “Rule 9. After such demurrers shall have been presented and argued the court (i.e., the senators) shall, after due deliberation and consultation, announce its decision upon each and every demurrer and exception … “

         1975: “Rule 6. … The presiding officer shall rule on each such motion, objection, request or application or at his option shall submit the question to a vote of the court. The ruling of the presiding officer stands as the ruling of the court unless a member of the court asks that the question be decided by a vote of the court (i.e., the senators), in which case the question is to be submitted to the court for decision.”

         2023: “… The presiding officer of the court shall rule on each such motion, or at his or her option, shall submit the question to a vote of the majority of the members present and eligible to serve as jurors.”

         “Rule 13(b). All questions of evidence, including questions of relevancy, materiality, or repetition of evidence, and all incidental questions … The presiding officer of the court shall rule on each question, or at his or her option, shall submit the question to a vote of the majority of the members present and eligible to serve as jurors without debate or comment.”

         In summary, key decisions on pre-trial motions and evidentiary issues will be made by the Lieutenant Governor, who might decide to submit the issues to the senators.

         Also noteworthy in the 2023 Rules is the phrase “without debate or comment,” meaning that on occasions when senators are able to vote, they must do so by yeas and nays and without discussion. The phrase appears in the Rules an astonishing 12 times!

         Consider, for instance, a situation where one party or the other wants to exclude evidence during the trial. First, the Lieutenant Governor will make a ruling. In both 1917 and 1975, the senators themselves could review that ruling and substitute their own decisions. I’m sure there were some thoughtful, even Solomonic, debates about such profound questions in those trials, but we will hear none of them now.

         This absolves the senators – who are the officers charged with judging impeachments under the Texas Constitution – of any agency in or responsibility for their decisions, except on the ultimate question of guilt or innocence. But as any good lawyer will tell you, favorable rulings on pre-trial motions or admissibility of evidence can determine the final outcome of a case.

         The beneficiary of this rule-imposed silence is, of course, the Lieutenant Governor. Other than the parties themselves, he may be the only one allowed to speak on the Senate floor. (Students of the Texas Constitution will note that the key provision requiring a trial of impeachments in the Senate – Art. XV, Sec. 3 – does not even mention the Lieutenant Governor.)

III.  Smart Journalists, Smart Questions

            A wise reporter I befriended once explained to me a line of questioning he used when he was interviewing someone who’d been caught, it seemed, violating some law or regulation or ethical standard. (For historical context, people in politics and public service used to govern themselves by such things back in the day.)

         He would let his subject explain himself: “See, I did this, and then this happened. How could I know that lobbyist would buy the property for ten times what I paid for it the next day?”

         Then he would snap the trap shut. “Well, let’s say you actually wanted to illegally gain money through a phony land transaction – what would you have done differently?” It was his version of “if it looks like a duck, and walks like a duck, and quacks like a duck, explain to me how it is not a duck.”

         Let us now turn from this to the entirely unrelated question of whether Dan Patrick may have accepted a bribe.

IV.  Texas Penal Code Section 36.02: the Bribery Statute

         Section 36.02 of the Texas Penal Code reads in part:

Sec. 36.02.  BRIBERY.  (a)  A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:

(1)  any benefit as consideration for the recipient's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter;

(2)  any benefit as consideration for the recipient's decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding; …

         The statute applies to both the briber (“offers, confers, or agrees to confer on another”) and the bribee (“solicits, accepts, or agrees to accept”). And it requires that the offender “intentionally or knowingly” perform the prohibited act.

         The key, of course, is that there must be a quid pro quo, a “decision, opinion, recommendation, vote, or other exercise of discretion.” And that is why bribery cases are so hard to prove. There may be quids and quos floating around, but these guys are pros at not easily connecting the dots.

         And Dan Patrick’s best defense to any insinuation of a quid pro quo is that this is exactly how he would play it, even without such a staggering donation.

V.  The Appearance of Impropriety

         Lawyers and public servants are taught from the cradle to avoid not only impropriety but the appearance of impropriety. (I concede that recent behaviors of, for instance, members of the Supreme Court call into question whether anyone believes that anymore.) There is no proof that Dan Patrick, who accepted from a pro-Paxton PAC a $3 million combination of contributions and loans a week after the Senate passed a set of rules that 1) were favorable in many respects to the Defendant Ken Paxton and 2) granted him unprecedented power over the conduct, and potentially, the outcome, of Paxton’s impeachment, did any of those acts in awareness of or as consideration for that very generous contribution. But it still looks shady, or ought to to anyone who still takes such things seriously.

         What do you think? Let’s see your thoughts in the Comments.

VI. The Circus Is Coming to Town

(The Senate Chamber, arranged in anticipation of the impeachment trial.)

         The Texas Senate has created a handy webpage that contains all documents and filings in the impeachment case. Check it out.  

         The Paxton defense team has recently filed motions to dismiss all of the articles and, separately, most of the articles individually, as well as to exclude evidence. The House impeachment managers’ answers to these motions are due later this month, and they will be ruled on at the beginning of the trial on September 5.

         Life Its Ownself will continue to opine on the Paxton impeachment. Stay tuned!

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         Some other reading for the week …

         From The Atlantic … Texas is the 3^rd-largest electric vehicle market in the country … can the grid keep up?

         From Texas Monthly … hot enough for you this summer? Imagine being a pitmaster.