Recap: Ken Paxton Impeachment Trial, Day Three

The trial enters the “slog” phase – droning testimony, some of it repetitive, testing attention spans. Sharp cross examination catches the prosecution off guard. And why isn’t Ken Paxton here?

         Welcome to our special coverage of the impeachment of Attorney General Ken Paxton here at Life Its Ownself! Please subscribe and encourage others to do so. Your support inspires me to write and publish regularly. All my content is free, but your paid subscription is a big affirmation. Please let me know how I’m doing by 1) liking, 2) subscribing, 3) sharing with others, and 4) commenting below.

(Today’s witnesses, the Ryans: Ryan Bangert [above] and Ryan Vassar [below])

Thursday, September 7, 2023, 10:00 p.m.

         Friends, there’s only so much of this you can take before you get a little crazy, even if you’re watching it in the comfort of your own home. The impeachment trial was never supposed to be easy, and I knew it would turn into a slog. My naivete and optimism made me hope it wouldn’t feel that way until Week Three, but here we are, slogging already on Day Three.  

         Nevertheless, I am committed to sitting through each day’s proceedings and regaling you with intelligence and insight each night.

(“I do this for you, the people. “)

         It’s not all bad. This morning a smart friend of mine brought some breakfast tacos by and we watched the proceedings together. This seriously helped my mood, although not my concentration.

---

         Day Three is done. Ryan Bangert, the former deputy first assistant attorney general, continued his testimony and was cross-examined by the Paxton defense team. Bangert is in some ways “the smoking gun” – the staffer who directly interacted with Paxton on some of his biggest interventions on behalf of Nate Paul. For that reason, Bangert is very important to both the prosecution and defense cases. I’ll discuss his testimony below.

         We also heard the direct examination and part of the cross-examination of Ryan Vassar, who was deputy attorney general for legal counsel, with a portfolio that included opinions and contracting for outside counsel. He was in on a couple key events – the Open Records requests, the “midnight guidance letter,” and the attempted hire of Brandon Cammack. He did a good job during Rusty Hardin’s direct examination but stumbled under Mitchell Little’s withering cross-examination.

---

I.              What’s the Big Picture?

         After three days, the outlines of the prosecution and defense gameplans are becoming clearer. The prosecution sees a group of dedicated lawyers, all with impeccable legal and conservative credentials and hand-picked by Ken Paxton, becoming alarmed at his increasingly “bizarre” relationship with Nate Paul and the lengths to which he would use the A.G.’s office to help his friend. The defense sees a talented Attorney General who led the charge nationally on conservative issues, brought down by a cabal of disloyal employees who tried to “stage a coup” to further their own ambitions or the ambitions of their unknown-but-hinted-at masters.

         The burden is on the prosecution, of course. They’ve been laying out straightforward testimony about the various Paxton interventions during 2020 that eventually led the whistleblowers to revolt. The three witnesses so far, all senior managers, have laid out a clear narrative about what was going on and why they grew alarmed.

         The defense seems to have three overlapping strategies:

• The ‘nothingburger’ defense – Paxton’s interventions, if any, never materially changed the facts on the ground for Nate Paul, so why all the fuss?

• Character assassination – the whistleblowers were corrupted by their own ambition, or were in thrall to outside forces with an agenda. A subset of this is the “why didn’t you just ask Ken Paxton?” line to impugn their loyalty.   

• The “throw it at the wall and see what sticks” defense – vague insinuations about George P. Bush, Johnny Sutton, and an altered letterhead. (I am not making that up.) There doesn’t seem to be any “there” there, but maybe the defense will have something solid when they present their case.

---

         For each of the witnesses I discuss below, I will start with my take on how their appearance fits in the goals of the prosecution and defense. Then I will summarize their testimony itself and comment on any points scored during cross-examination.

II.            Bangert’s Testimony and Cross-Examination

         Bangert’s story, as the prosecution wanted him to tell it: Bangert was a committed conservative lawyer working at the top levels of the OAG when Paxton personally intervened in three distinct situations, asking Bangert and his other lawyers to set aside longstanding OAG policies and procedures to generate outcomes that benefitted Nate Paul and his business interests. Over time, Bangert (and his colleagues) grew convinced that Paxton had abandoned his commitment to his oath of office and was using the power of the OAG to benefit one person, Nate Paul. The hiring of Brandon Cammack – done by Paxton without their knowledge and over their objections – crystallized their fear that Paxton was off the rails and that they were out of options.

         Bangert’s story, as the defense wanted him to tell it: Notwithstanding their suspicions, all of Paxton’s interventions “on behalf of” Nate Paul came to nothing. The agency did not turn loose of the DPS files. The OAG intervention in the Mitte Foundation lawsuit did not go anywhere (in fact, there was testimony about how mad Nate Paul was about the OAG’s ineffective participation). The “midnight foreclosure letter” did not stop a single foreclosure sale that next Tuesday. Bangert and his colleagues overreacted to Paxton’s perceived favoritism to Nate Paul.

         Yesterday afternoon, Bangert testified that he was involved in three OAG actions involving Nate Paul during 2020:

·      Three Open Records rulings in which Nate Paul sought protected information from law enforcement agencies about raids they had conducted on his home and business in August 2019. The agencies in turn sought OAG guidance on whether the information should be withheld. Longstanding OAG policy had been to affirm the denial of such requests for records, but Paxton intervened on one occasion to insist the agency deliver a “no opinion” opinion. (But see Ryan Vassar’s testimony below.)

·      A decision for the OAG to intervene in a lawsuit between the Mitte Foundation and some of Nate Paul’s companies. The OAG has authority to intervene in cases involving charities to protect the public’s interest in well-run charities. They had decided not to intervene, as nothing about this particular case seemed notable, but Paxton pressured them to do so, and to seek a stay in the proceedings, which would benefit Nate Paul.

·      A legal guidance letter confirming that, under COVID guidelines issued by the state and federal government, outdoor home foreclosure sales should be postponed. The guidance letter – not a formal AG Opinion – was rushed through over the course of a weekend, apparently in anticipation of foreclosure sales of some Nate Paul properties scheduled for the following Tuesday.

         These events are key to the prosecution’s case, and Bangert did a good job of laying out the facts of each story.

         Bangert’s cross-examination was led by Anthony Osso, an associate in Cogdell’s law firm. He had gotten everyone’s attention yesterday by objecting to what seemed like every question or answer in the colloquy between Hardin and Bangert.

         SIDEBAR: Objections in a jury trial are tricky. Objections to certain pieces of evidence or to hearsay statements are necessary to preserve error, i.e., so that an appellate court can throw out the case on review. The risk is, excessive objections tend to exasperate a jury and make them wonder if the objector is hiding something. Here, there is no appellate review, and Osso was, I thought, trying the senators’ patience – and Dan Patrick’s – with his constant interruptions. (Hardin, a more experienced litigator, seemed more strategic and infrequent with his objections during Buzbee’s cross-examination yesterday.)

         Osso on cross was cooler and calmer than he had been before. He addressed the foreclosure letter first, claiming that it had not prevented any foreclosure sales that following Tuesday. He also asked why the whistleblowers had not taken their concerns to Paxton before going to the FBI. And he suggested something untoward in Bangert’s relationship with attorney Johnny Sutton (who represents several of the whistleblowers). But Bangert parried his thrusts effectively.

III.         Ryan Vassar’s Testimony and Cross-Examination

         Ryan Vassar is the former Deputy Attorney General for Legal Counsel. Like Mateer and Bangert, he had a promising career trajectory, working for the right people (Rick Perry, Don Willett) and joining the OAG in 2015.

         Vassar’s story, as the prosecution wanted him to tell it: Vassar was a committed conservative lawyer just promoted to the top levels of the OAG when Paxton called upon him to steer agency decisions in directions that would benefit Nate Paul. In particular, Vassar was baffled by Paxton’s insistence on a COVID-related moratorium on outdoor foreclosure sales, even though Paxton and Texas OAG were leading the way nationally on “opening up for business.” This gap between Paxton’s oft-expressed conservative values and his behavior towards Nate Paul became more troubling to Vassar.

         Vassar’s story, as the defense wanted him to tell it: All the decisions that Vassar complained about were well within Paxton’s discretion as Attorney General. Paxton was personally “kind and gentle” to him, and treated him as a colleague, even sharing his personal phone number and private email address with him. Vassar had no reason to turn on him, and should have gone to Paxton with his concerns before he and the others went to the FBI.

         Like Bangert, Vassar was in the room on a lot of the key Nate Paul interventions that are the subject of the impeachment. He was in on the decision to offer “no decision” on the DPS’s request to keep its records of the August 2019 Nate Paul raid secret. But he told a fascinating coda to that story:

         Included in the DPS’s information – turned over to the OAG so it could evaluate the Open Records claims – was an unredacted copy of an FBI memo detailing why it did not want the DPS information released. Nate Paul made an Open Records request of the OAG for that file. (It was not clear how Paul or his lawyers even knew OAG had the file.) Following procedure, the OAG lawyers asked the FBI’s opinion on that release, and for whatever reason they did not hear back from the FBI. So, Paxton ordered that the FBI memo be given to Nate Paul. (This is the gravamen of Impeachment Article IV.)

         Vassar also did the initial draft of the “midnight foreclosure letter,” demanded by Paxton on a Friday afternoon and published late Sunday night. Their initial draft was consistent with federal, state and particularly OAG policy that disfavored pandemic restrictions, but Paxton called Bangert and told him they’d “gotten the answer wrong.” They redrafted the letter to discourage public foreclosure sales and it was published that Sunday night. Vassar said he had no idea what the purpose of the letter was, but belatedly realized that Nate Paul had used the guidance to stop the foreclosure sales of some of his properties the next Tuesday (see here and here).

         In September, Paxton asked Vassar’s help in drafting an outside counsel contract for Brandon Cammack to assist the A.G.’s office in investigating a criminal referral from the Travis County D.A.’s office. Vassar drafted the document, but became aware other senior managers objected to the contract. He thought the contract had never been executed by the agency, which is why he and the others were astonished to learn, on September 29, that Cammack had served subpoenas on at least one bank, apparently while in the company of Nate Paul’s lawyer. Their realization that Paxton had executed the contract without telling them convinced them that Paxton’s assistance to Nate Paul had crossed a line. They met with the FBI officials the next day.

         Vassar’s cross-examination was, in my estimation, a disaster for the prosecution. Defense lawyer Mitchell Little was very aggressive, cutting off Vassar any time an answer strayed outside the narrow bounds of his questions. (He was so overpowering that he intimidated Patrick, who routinely sustained his objections without even hearing from the other side.)

         Little trotted out the standard questions: why didn’t you just talk to Ken? Why was Paxton’s name stripped off the letterhead, and by whom? (Vassar pointed out that frequently OAG letterheads do not have Paxton’s name on them.) Why was a charitable foundation making investments in Austin real estate, for God’s sake? Vassar got rattled under the onslaught.

         Then Little called up some of the impeachment articles. His shtick was to highlight some factoid in the article, get Vassar to agree to some conclusory statement about it, and then suggest the whole article was thus invalid.  

         Here’s an example: Article IV says, “Paxton improperly obtained access to information held by his office that had not been publicly disclosed for the purpose of providing the information to the benefit of Nate Paul.” Their colloquy went something like this:

         Little: Paxton is the Attorney General, right? He should be able to access any information that’s in his office, yes?

         Vassar (helplessly): Umm, yes.

         Little: So, Article IV is not true, is it?

         Vassar: (unintelligible).

         Little: Let’s move on to Article V.

         Part of the horror was watching Rusty Hardin sit passively, objecting very rarely. At the end, for instance, Little asked Vassar if he knew that not a single foreclosure sale in Texas was stopped by the midnight guidance letter. Little was testifying, which should be a no-no. Buzbee said the same thing yesterday, but neither of them has provided any evidence of that. But that “fact” has begun to sink into the senators’ minds.

         Not a good ending to the day, IMO. Little will be back to continue his cross-examination tomorrow morning.

IV.          More Impressions

         Paxton was once again absent from the trial today.

         Quote of the Day #1 – Ryan Bangert: “I had a duty of loyalty to the Constitution and to my principal (Paxton). Ideally, they should be in alignment. But over nine months, they drifted further and further apart.”

         Rusty Hardin seemed visibly worn out by the end of the day. Except for the opening statement by Rep. Mark Murr, Hardin has been the only lawyer for the prosecution to speak thus far. Legendary trial lawyer Dick DeGuerin and former SCOTEX Justice Harriet O’Neill sit next to him at the counsel table, and ten of the House Managers are lawyers, but we haven’t heard a peep from any of them. By contrast, we’ve already heard from four members of the defense team.

         Quote of the Day #2 – Rusty Hardin, on trying to speed testimony along: “I don’t want to tell everyone how to build a Swiss village when all they want to know is what time it is.”

         Both Tony Buzbee yesterday and Anthony Osso today have asked witnesses if they’re familiar with the expression, “There are no coincidences in Texas,” (or, in Osso’s case, “in Austin”). What’s up with that? I’ve spent most of my life in Texas, and the last 38 years in Austin, and never heard the expression. Neither had the witnesses. Maybe they’re trying to create new meme.

         One of the interesting subplots about which not much has been said yet is the criminal referral by the Travis County D.A.’s office, which Cammack used as justification for the subpoenas he prepared and served on a number of businesses and people who’d aroused Nate Paul’s ire. News reports have indicated that Paxton arranged a meeting for Paul with then-Travis County D.A. Margaret Moore. Paul laid out his complaints to Moore, who then promptly referred the mess back to the OAG. Is that what happened? Is that how these things are supposed to happen?

---

         I will publish another special edition of Life Its Ownself after tomorrow’s session.

         CORRECTION: A sentence in the original version of this newsletter said, “The prosecution sees a talented Attorney General who led the charge nationally on conservative issues, brought down by a cabal of disloyal employees who tried to “stage a coup” to further their own ambitions or the ambitions of their unknown-but-hinted-at masters.” It should have started, “The defense sees a talented Attorney General who led the charge nationally on conservative issues, …”

         I regret the error. Thanks to the reader who pointed it out to me.