Recap: Ken Paxton Impeachment Trial, Day Four
The good news: we’re halfway done, according to the time schedule. The bad news: I still can’t tell what the Senate will do. Plus: finally, Central Casting sends us an interesting witness!
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Friday, September 8, 2023, 10:00 p.m.
As we go into the weekend, let’s review our status:
1. Each side has 27 hours to present its case. That includes opening and closing statements and time spent cross-examining the other side’s witnesses. Dan Patrick and his lawyers are tracking the time.
2. Earlier in the afternoon, Patrick announced that the House impeachment managers have used 15 of their 27 allotted hours, while the defense has clocked up 16 hours. Throw in an hour or two each from this afternoon’s testimony, and let’s call it 33 out of 54 hours. Testimony could be over by Wednesday or Thursday of next week, at which point the senators will retire to deliberate among themselves.
3. The House managers have now put on four witnesses, all members of the “whistleblowers” group.No word on who their next witnesses will be.
Day Four is done and the trial is breaking for the weekend. The cross-examination of Ryan Vassar continued, and whistleblower David Maxwell testified. Maxwell’s testimony focused on Paxton’s efforts to get the OAG to launch an investigation into the August 2019 raid on Nate Paul’s properties.
I. What’s the Big Picture?
By the spring of 2020, Ken Paxton was actively intervening in the day-to-day operations of the OAG on behalf of Nate Paul: ordering favorable Open Records rulings, directing intervention in the Mitte litigation, ordering up a guidance letter on public foreclosure sales that contradicted OAG policy, and seeking OAG’s initiation of a criminal investigation into the August 2019 raid on Nate Paul’s properties.
Paxton’s behavior increasingly alarmed “the eighth floor” — the senior managers dealing with his requests, who were convinced it was putting the OAG, and even Paxton, at risk for political if not legal consequences.
Paxton, however, saw himself as defending a constituent who was being persecuted by law enforcement (as he believed he was in his long-running securities fraud indictments). He was frustrated by his managers’ refusal to open an investigation into Paul’s allegations, and sought other alternatives to get an investigation going.
II. Vassar’s Cross-Examination Continues
(Mitchell Little during his aggressive cross-examination of Ryan Vassar.)
Paxton defense lawyer Mitchell Little continued his lengthy cross-examination of Ryan Vassar, the former Deputy Attorney General for Legal Counsel. Having talked about the “midnight opinion” the day before, he asked Vassar whether he had any personal knowledge that the guidance letter had prevented any Nate Paul foreclosures. Vassar said he didn’t.
Little then walked Vassar through a text message chain, created among some of the whistleblowers after most of them had left and Paxton had brought in new leadership. Many of the comments were snarky, as text message chains often are, and Little suggested they proved the whistleblowers’ disloyalty to Paxton and the OAG.
After Vassar testified that he’d counseled OAG grant writers that Paxton legal problems could endanger federal grants, Little got him to admit he’d not previously raised such alarms until the end period in September-October 2020.
Vassar was more confident today and fended off a lot of Little’s insinuations.
On re-direct, Hardin asked Vassar to clarify under what authority the “midnight opinion” had been issued. Vassar also restated that different units within the OAG use different letterheads, and that Paxton’s name does not appear on all of them.
III. David Maxwell’s Testimony and Cross-Examination
(David Maxwell, former deputy attorney general for law enforcement, testifies on Friday.)
David Maxwell was the fourth witness for the House managers. If Enchanted Rock had silver hair and could fit into the Senate Chamber, it would look like David Maxwell. The former Deputy Attorney General for Law Enforcement, a Texas Ranger for three decades, is tall, gravelly-voiced and strictly business. He was self-assured, a bracing contrast to the other witnesses who hemmed and hawed under cross-examination. His one- and two-word answers to questions seemed to throw off the audience, who’d gotten used to florid chatter from witnesses and attorneys alike.
Maxwell’s story, as the House managers want him to tell it: As he learned who Nate Paul was, he became convinced he was a criminal and that Paxton should cut his ties to him. He resisted efforts to get the OAG to launch an investigation into the FBI raid on Nate Paul’s properties because, he believed, that would be obstructing justice and interfering in a federal investigation. Eventually, Paxton had him terminated in a way that ended his 50-year law enforcement career.
Maxwell’s story, as the Paxton defense team want him to tell it: Maxwell, a once great cop, refused Paxton’s entreaties to take Nate Paul’s complaints seriously, forcing Paxton to hire Brandon Cammack as outside counsel and, once the extent of Maxwell’s disloyalty was evident, to terminate him.
Maxwell’s involvement began in June 2020, when Paxton asked him to meet with Nate Paul to hear his complaints about the August 2019 FBI raid on his properties. Before the meeting, Maxwell did a cursory investigation of Paul and became convinced that Paul was a criminal, at one point warning Paxton that his relationship with Paul “would get him indicted.”
Maxwell met with Paul and his attorneys three times. Paul laid out his “conspiracy theory” that the State Securities Board, the DPS, the FBI, the US Attorney’s Office, and a federal magistrate had all acted improperly and were persecuting him.
SIDEBAR: Maxwell used the phrase “conspiracy theory” at least five times. The Paxton team never objected, which I thought was amazing, given how picayune some of their earlier objections had been.
The gravamen of the conspiracy theory was that the raid had been designed to find drugs and, when none were found, the warrants and supporting affidavits were retroactively tampered with to allow a search for financial records and other evidence. The magistrate who issued the warrant, the U.S. Attorney’s office, and all the state and federal law enforcement agencies were in on the switcheroo. (N.B.: this does not explain why the State Securities Board would have been involved in what was initially a drug raid.)
Maxwell also testified that the first two meetings had been videorecorded on his orders, but that Paxton ordered that the third meeting (which Paxton attended) not be.
Maxwell believed Paul’s complaints were ludicrous and had no merit. Paxton nevertheless urged him to open an investigation, going so far in the third meeting as to threaten Maxwell’s job. “I knew then what his commitment was to Nate Paul and that he was not going to be deterred,” Maxwell said.
During this time, the OAG received a criminal referral about the Nate Paul allegations from the Travis County D.A.’s office. Later, Don Clemmer in that office told Maxwell the referral had been requested by Paxton to get him and OAG to begin an investigation.
During the crucial week of September 28-October 2, Maxwell was on vacation but became aware that Cammack’s issuance of subpoenas on the OAG’s authority had alarmed the other managers and crystallized their conviction that Paxton was off the rails. Although he did not attend their meeting with the FBI on 9/30 or sign their letter to Paxton on 10/1, he was placed on investigative leave on 10/2 and terminated a month later. Because of how his firing was reported to the law enforcement regulatory agency, it ended his 48-year career in law enforcement. Maxwell joined the whistleblower suit to vindicate his reputation.
Paxton lawyer Dan Cogdell began his cross-examination by praising Maxwell effusively (I wrote down “fluffer”). He tried to get Maxwell to admit that, generally, search warrant affidavits (the subject of the Open Records requests Paxton intervened in) did not, in fact, list information that could endanger investigators or their sources and methods. Maxwell pushed back, though, and so the 2019 search warrants were brought out and briefly discussed. Maxwell maintained that the OAG was right to object to the disclosure (which Paxton changed to ‘no decision.’)
They also discussed a PowerPoint handout that Nate Paul had brought to the third meeting, laying out in detail “Operation Longhorn,” the investigation Paul wanted OAG to do. The document listed, for instance, six specific law enforcement people Paul wanted the OAG to investigate.
Maxwell’s position was that investigating those people would constitute obstruction of justice and interference with an ongoing federal investigation. Cogdell repeatedly asked Maxwell what specific crimes Paul was committing in asking him to investigate. Maxwell was focused on the OAG’s criminal exposure, but Cogdell kept coming back to: did Nate Paul commit a crime in asking for this investigation?
Their back-and-forth became increasingly heated, with Cogdell suggesting Maxwell was deliberately being obtuse. Dick DeGuerin, presenting Maxwell’s case, became more insistent in his objections to Cogdell’s badgering. It got to the point where Patrick summoned both lawyers to the dais, I think in an effort to calm them down. It did not work: the combination of Maxwell’s evasiveness (as Cogdell saw it) and DeGuerin’s objections finally blew Cogdell’s cool, leaving him fuming.
On re-direct, DeGuerin got Maxwell to reiterate that it was Don Clemmer who told him Paxton wanted the Travis County D.A. to refer the Nate Paul allegations to the OAG.
After Maxwell was done, Patrick adjourned the court for the weekend. They’ll be back Monday at 9:00 a.m.
IV. More Impressions
Paxton was once again absent from the trial today.
Quote of the Day – David Maxwell: “I told [Paxton] Nate Paul was a criminal, that he was running a Ponzi scheme that would rival Billie Sol Estes, and if he didn’t get away from this individual and stop doing what he was doing, he was going to get himself indicted.”
Dick DeGuerin led the direct examination of Maxwell, the first appearance by the legendary trial lawyer. I thought he was excellent, leading him through his case and then parrying Cogdell’s attempts to cross to shake his story.
Mitchell Little joined the queue of Paxton lawyers (all Houston-based) who have asked witnesses about the expression, “There are no coincidences in Texas.” Cogdell, for his part, forgot to ask that question during his cross-examination of David Maxwell. Come to think of it, I’d like to have seen Maxwell’s reaction.
Yesterday I mentioned the criminal referral by the Travis County D.A.’s office, about which not much had been said. Maxwell today confirmed the news reports: Paxton engineered the give-and-go to force the OAG to open a formal investigation into Paul’s complaints.
Although the members of the Legislature are bound by a gag order, others are free to comment on the trial, and some Texas politicos are doing so. Senator John Cornyn called the allegations “deeply disturbing.” Representative Chip Roy – a former first assistant to Paxton – praised David Maxwell in a tweet. And a tweet by State Rep. Cody Harris drew the ire of Texas GOP chair Matt Rinaldi. As the trial drags on, the comments from the peanut gallery will increase in frequency and vitriol.
Watch for an analysis this weekend of where we stand with the evidence in the 16 Articles of Impeachment. I will be back with my daily summary after Monday’s session.
Have a great weekend!
The even better news, I'd say, is that there is enough evidence in Maxwell's testimony to convict Paxton, and your timeline makes it look possible by the end of this coming week. Yee haw.
I've listened to some of the trial, probably 25% or so. I don't think I've ever had anything good to say about Lt. Gov Patrick and I still have nothing good to say, but my left-handed compliment to Patrick is that he is giving the appearance of being much more neutral and even-handed than I ever expected in this trial. My observation is that he is so taken up by the trappings of the trial and his role as judge that he sees himself at the center of a courtroom drama and he relishes his role as judge. He is so caught up with trying to play his role as judge that he seems to have forgotten (momentarily) that he is an ultra-partisan hack. Although he frequently confers with advisors, sometimes he looks like a kid who just had the training wheels taken off his bicycle when he rules on an objection without having to ask advice. We can only hope that his momentary lapses into the world of the reasonable will allow enough testimony to get into the record.