Recap: Ken Paxton Impeachment Trial, Day Five

Ken Paxton's problem isn't the Democrats, or even the RINOs. It's the God-fearing conservative lawyers around him who've become convinced he's corrupt and either bribed or blackmailed.

         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.

---

Monday, September 11, 2023, 10:00 p.m.

         How do you take a bunch of talented, well-educated, accomplished, proudly Christian, MAGA-certified foot soldiers in the conservative legal movement, give them the opportunity to work for the leading crusader for their cause, and in a year convince all of them he’s corrupt and either blackmailed or bribed?

         Day Five is done. It began with a moment of silence, followed by a prayer for the victims of 9/11. It was led by Senator Brian Birdwell, who was in the Pentagon that day and suffered severe injuries.

         Then the House managers put on four more witnesses, as many as they had in the first week of the trial. Mark Penley’s testimony focused on the hiring of Brandon Cammack (as had David Maxwell’s Friday). Then Missy Cary, the then-chief of staff at the agency, testified about the Paxton’s extramarital affair and about OAG policy re independent counsel hiring policies. After that, Gregg Cox, who’d worked at the Travis County D.A.’s office, testified that after a cursory investigation he believed Paxton may have violated as many as a dozen statutes. Finally, Margaret Moore, then the Travis County District Attorney, testified to her office’s dealing with the OAG over the course of two criminal referrals from her office to the OAG and to Brandon Cammack.  

I.     Timetable

         At the end of today’s testimony, Dan Patrick made the following observations regarding the timetable going forward:

         Each side is allowed 24 hours to present its case. After that, there will be limited time for rebuttal witnesses and closing arguments.

         As of the close of today’s session, the House managers still have nine hours, 19 minutes and 12 seconds to present evidence, and the Paxton team has 12 hours, 14 minutes and 15 seconds.

         Patrick thinks testimony might be done by Wednesday or Thursday of this week. After that, the senators will retire for deliberations, which will continue day to day (including Sundays) until the Senate’s verdict is announced.

---

II.   The Big Picture

         The House managers seem focused on proving up the first five or six Articles of Impeachment. Remember, if Paxton is convicted on even one, he is removed from office.       

         Accordingly, we’ve heard testimony about (1) the Mitte Foundation v. World Class (Nate Paul’s companies) litigation; (2) the “midnight opinion” the OAG issued to prevent the foreclosure of some Nate Paul properties; (3) the Open Records requests for information regarding the August 2019 raid on Paul’s home and businesses; (4) Paxton’s transfer of a confidential FBI investigative file to Nate Paul; (5) the engagement of Brandon Cammack as an outside counsel, and Cammack’s actions on behalf of Paul after that; and (6) the termination of the whistleblowers after they reported Paxton to the FBI and to OAG human resources officials.

         Today, for the first time, we also heard about Paxton’s affair and the consternation it caused among the senior managers in the office.

         The defense, for its part, seems focused on general attacks on the whistleblowers’ character and credibility. They’ve also attacked some of the Articles not in play so far, for instance asking a couple witnesses if they know for a fact that Paul paid for the renovations to the Paxton home. And, of course, the Paxton defense team seems obsessed with asking witnesses whether they’ve heard the phrase, “there are no coincidences in Texas/Austin,” to which not a single witness has answered in the affirmative.

         With that as background, let’s quickly review today’s witnesses.

---

III.Mark Penley Testimony and Cross-Examination

(Mark Penley, former Deputy Attorney General for Criminal Justice, testifies Monday.)

         Mark Penley was the Deputy Attorney General for Criminal Justice. He was recruited to the OAG by Paxton himself after a 20-year legal career, much of it as an Assistant U.S. Attorney. He’s 69 years old and an Eagle Scout (does one ever become a former Eagle Scout?)

         Penley’s story, as the House managers want him to tell it: Almost from the get-go of his time at the OAG, Paxton was encouraging Penley to help Nate Paul. The pressure built over the summer as Paxton became more adamant about what he wanted Penley to do. Penley’s refusal to authorize the hiring of Brandon Cammack precipitated a rupture in their relationship and a crisis among the deputies. Penley was placed on investigative leave on October 2 and fired a month later. Penley became one of the four whistleblowers who filed suit.

         Penley’s story, as the Paxton defense team want him to tell it: From the beginning, Penley refused to take Nate Paul and his story seriously. He became insubordinate, refusing at the end to authorize the Cammack contract and leading the deputies in going to the FBI. He was terminated, appropriately, on November 2. He proved his disloyalty by joining in the whistleblower lawsuit.

         Penley first became aware of Nate Paul when Paxton patched him into a phone call with Paul shortly after joined the OAG. The call lasted 30 minutes, during which Paul explained his grievances about the August 2019 raid on his properties and the government misconduct during and after the raid. Penley wondered, “Why are we even talking to this guy?” but Paxton said he felt like he, too, had been the victim of improper law enforcement and prosecutorial misconduct.

         Penley next heard about the name in early June 2020, when David Maxwell received a request from the Travis County District Attorney’s Office (TCDAO) to review a complaint Nate Paul had filed with the agency. The complaint essentially restated the story he’d heard months before. Penley later learned that the story had gotten on the TCDAO’s radar through a lunch meeting set up and attended by Paxton himself.

         Penley, Maxwell, and Mateer all believed there was no merit whatsoever to the complaint and decided to “slow walk” it in the hopes Paxton would lose interest. It was not to be; on July 6, Paxton asked him about the complaint and why nothing had happened. Penley told him candidly that he believed the complaint displayed “no merit, no state interest, and no evidence of a crime.” Paxton asked him to meet with Nate Paul and his lawyers and hear them out; if he still felt that way, Paxton suggested, they would drop the matter.

         Maxwell held the first meeting, which was videotaped, on July 23. Penley did not attend. Soon after, Paxton asked Penley to watch the video with him, during which Paxton expressed his agreement with Paul’s characterizations of what had happened to him. Maxwell had a second meeting on August 5 with Paul and his lawyers, this one attended by Penley (and also videotaped). There, Paul asserted that “metadata” on the search warrant would prove that it had been tampered with after it was signed by the judge. Maxwell took a thumb dive with the document on it to his forensic experts, who pronounced the data “inconclusive.”

         At a third meeting, held August 12 and including Paxton, the forensic experts shared their conviction that the metadata did not suggest, much less prove, that the arrest warrant had been tampered with. Paul laid out a PowerPoint presentation called “Operation Longhorn,” detailing how Paul wanted the OAG to proceed with its investigation. It called, for instance, into OAG criminal investigations into the federal magistrate who’d issued the search warrant. Penley and Maxwell thought the plan insane, but they were unable to convince Paxton to drop the matter.

         In an effort to placate his boss, Penley asked Paul attorney Michael Wynne multiple times to provide him with all the documents and evidence they claimed to have, but nothing more was forthcoming. On September 6, Paxton explained that Paul and Wynne had told him they no longer trusted Penley or Maxwell, and would not share information with him. After that, though, Penley felt he was cut out of the loop by Paxton.

         In the meantime, Paxton was directing the agency to hire an outside counsel to work on the Paul allegations. On September 16, Penley saw an Executive Authorization Memo (EAM) approving the hire of Brandon Cammack, which he was supposed to sign. On a September 24 telephone call, Paxton ordered him to sign it. He refused: the Paul allegations were ludicrous, Paul and Wynne were not complying with information requests, and he and Maxwell felt that getting too far into an investigation would jeopardize the ongoing federal investigation into Nate Paul.

         That Saturday, the 26^th, Paxton asked Penley to meet him in McKinney. Paxton and Penley had a long conversation about the merits of the outside hire, which Penley thought was a waste of time and money. Paxton, though, said, “You don’t know what it’s like to be the target of a corrupt investigation.” Paxton mentioned he’d already hired Cammack and that he, Paxton, would supervise him.

         On the following Tuesday, September 29, Penley and the other deputies found out the Cammack – with Paul attorney Wynne in tow – had served a grand jury subpoena on a Round Rock bank. Penley was “apoplectic,” and became more so the next day when they found out about another subpoena Cammack had served. This crystallized the deputies’ belief that Paxton was completely off the reservation and triggered their decision to go to the FBI. By the end of the week, Penley had been put on administrative leave; he was terminated a month later.

         On cross-examination, Paxton attorney Mitch Little asked if Penley, Maxwell and Mateer told Paxton they were “slow walking” the Paul review: didn’t they owe it to their boss to tell him that? And wasn’t that a violation of OAG policy?

         And why didn’t Penley go to Paxton, his friend, with his suspicions that Paxton was being bribed or blackmailed?

---

IV.          Katherine “Missy” Cary Testimony and Cross-Examination

(Missy Cary, former chief of staff at the OAG, testifies on Monday.)

         The next witness was Katherine “Missy” Cary, a longtime state (and OAG, since 1998) employee who was the Chief of Staff at the agency from 2015 to 2020. She is now retired.

         Cary’s story, as the House managers want her to tell it: She was a longtime fixture at the OAG, prized for her loyalty and broad knowledge of the agency’s operations. She estimated that 50% of the deputies’ time was spent on issues related to Paxton and Paul. When she counseled Paxton to end his affair, however, he shunted her aside.  

         Cary’s story, as the Paxton defense team want her to tell it: Cary correctly advised Paxton that he had authority to enter into outside counsel contracts.  

         In the spring of 2018, Cary became suspicious that Paxton was having an affair. Her suspicions were later confirmed.

         Paxton’s affair was wreaking havoc with his DPS protective detail, travel aides and other staffers responsible for keeping KP on time and focused. Morale suffered on the eighth floor, and then in other parts of the building.

         In September 2018, two months before his re-election, Paxton confessed to a small gathering of senior OAG and campaign staff – and Angela – that he’d be having an affair. He was contrite and repentant, and Missy left that meeting believing he’d put the affair behind him.

         By the summer of 2019, however, it became clear Paxton had renewed the affair and “still loved Laura Olson.” Cary, increasingly disappointed and angry, told Paxton he must get control of the situation for himself, his marriage, his office and the OAG. Their conversations became increasingly heated, and Paxton eventually reassigned her to other duties.

         Cary also testified (as a former head of the Open Records Division) that the policy changes reflected in the “no decision” on the DPS request had profound consequences for all state agencies, upsetting longstanding precedent and leading agencies to reconsider their policies on records and recordkeeping.

         Cary also testified about outside counsel contracts, the agency policies and procedures for which she had drafted. Those policies required specific budget authorization for payment, a defined scope of work, and sign-off from an ascending group of lawyers and managers. However, the Attorney General can waive that process if he makes a finding that it is in the best interests of the state to execute the contract and resolves any issues with funding the contract.

         Cary testified that she explained all this to Ken Paxton during a phone call on Monday, September 28. Paxton was trying to get around Penley’s refusal to authorize the contract. Cary recalled two conversations that day; on one she was on speakerphone, and she had the impression someone was listening in.

         On Tuesday the 29^th, she joined the deputies in a series of phone calls to assess what was happening with the Cammack subpoenas. However, she did not go with them to the FBI on Wednesday or join in the whistleblower lawsuit.

         Towards the end, Cary believed, as much as 50% of the deputies’ time and energy was being devoted to Nate Paul-related matters.

---

V.  Gregg Cox Testimony and Cross-Examination

(Gregg Cox, formerly of the Travis County District Attorney’s Office, testifies Monday.)

         Gregg Cox was a 30-year employee of the TCDAO who ran its Public Integrity Unit before it was disbanded. He now works for the Hays County D.A.

         Cox testified that in October of 2020, initially prodded by an Open Records request the agency had received, he was brought into meetings with other staffers regarding Ken Paxton and Nate Paul. He was asked to interview people with knowledge of the situation – Mitte Foundation lawyers, Mateer, Maxwell, Penley, among others – and draft a memo enumerating Paxton’s potential criminal liabilities based on the information. He did a second draft on October 28. That memo listed over a dozen criminal statutes that Paxton may have violated, based on the cursory information Cox had assembled. Per Moore’s counsel, he reached out to federal prosecutors to see if Travis County pursuit of any of these issues would interfere with an ongoing federal investigation. After consulting with the federal prosecutors, Cox determined not to pursue his investigations.

         On cross-examination, Cox was asked about communications among some of the whistleblowers that suggested they were rooting for the TCDAO to “attack” Paxton. Buzbee suggested that TCDAO was in a cabal with the whistleblowers to bring down Paxton.

---

VI.         Margaret Moore Testimony and Cross-Examination

(Former Travis County District Attorney Margaret Moore testifies Monday.)

         Margaret Moore has a long career as an attorney in public service – including a decade-long stint in the OAG – culminating in four years as the Travis County District Attorney from 2017-2021.

         In early June 2020, Mindy Montford told Moore that Ken Paxton had reached out to her, asking her to have lunch. The lunch was attended by the following: Montford, Clemmer, Paxton, Paul, and Wynne. Paul laid out his allegations at the lunch. When Montford and Clemmer briefed her later, Moore thought the allegations were “ridiculous” – an assessment with which Montford and Clemmer agreed. As far as TCDAO was concerned, it was “going nowhere.”

         In the interests of comity, though, Moore decided to forward a Request to Investigate (RTI) to David Maxwell at the OAG. Moore denied that the TCDAO wanted OAG to open an investigation into the Paul allegations in June, Moore also denied that TCDAO had hired Cammack or in any way encouraged his hiring. (They did provide clerical support to Cammack once he was hired.)

VII.       The Vibes

         Paxton was absent from the trial again today.

---

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