“So Long, and Thanks for all the Fibs”

A Hitchhiker’s Guide to the Paxton Impeachment

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(Ken Paxton, man of the hour.)

Tuesday, August 29, 2023

         Next Tuesday, as I assume everyone knows, is the opening day of the impeachment trial of Ken Paxton, the state’s suspended Attorney General. I propose here to provide a primer to the impeachment, divided into four parts. But first, some background:

Who is the Attorney General, and why do we care?

         The Attorney General is the chief law enforcement officer of the state. He represents state agencies in judicial and administrative proceedings. He collects past due child support and fights for consumers who’ve been ripped off. He also pursues criminal investigations into issues like human trafficking, although most of that work is done by local police and prosecutors.

         Ken Paxton has never seemed like an ideal fit for the job. Within months of being sworn in in 2015, he was indicted by a grand jury on several counts of securities fraud. He pleaded not guilty, but has so far avoided trial on the charges.

         During his tenure as Attorney General, he developed a close relationship with Austin real estate speculator Nate Paul. Over time, their relationship – and the actions Paxton took in defense of Paul – alarmed the senior managers of the Attorney General’s Office. They complained to Paxton, and then went to the FBI with their concerns. (The FBI investigation is ongoing.) Paxton fired some of them, and others resigned. They filed a whistleblower lawsuit against Paxton.

How did we get to the House impeachment articles and vote?

         In the spring of this year, Paxton reached a settlement with the plaintiffs in the whistleblower suit, including a cash payout of $3.3 million. Paxton went to the House Appropriations Committee and asked them to authorize the payment as part of the state’s budget. However, he declined to go into details about the underlying facts of the suit or the justification for the settlement. Rather than approve the item, House budgeteers asked the House General Investigating Committee to look into the circumstances underlying the lawsuit.

         The committee hired former prosecutors and investigators to look into l'affaire Paxton. In late May, it unanimously recommended 20 Articles of Impeachment against Paxton. The House, after a charged discussion, voted 121-23 to impeach Paxton.

The Senate rules and how they favor Paxton

         Now the ball was in the Senate’s Court of Impeachment. (See what I did there?) The Senate met for two days on June 20-21 to adopt Rules and a timetable for the trial.

         Two things were evident upon a quick study of the rules, which I wrote about here. The short version:

a)            Several of the rules favor the defendant; for instance, a requirement that an article of impeachment can be dismissed by majority vote, but requires a two-thirds vote to convict; and,

b)            The rules give unprecedented, and unchallengeable, authority to Lieutenant Governor Dan Patrick, in ways that make the Senators passive spectators to the impeachment.

         In previous impeachments, the Senate has acted as a tribunal, taking the roles of both judge and jury. The Rules  splinter that constitutional arrangement, setting Patrick up as the sole judge of the proceedings. From my earlier newsletter:

         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.”

         As I wrote back then:

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 pretrial motions or admissibility of evidence can determine the final outcome of a case.

The House managers’ evidence

         From the beginning, Paxton and his defenders have claimed the impeachment was a big nothing-burger: rushed through at the end of the session, with articles that made accusations but offered no proof, and all without giving Paxton a chance to speak in his own defense. (More on that last point later.) Once the impeachment began, the Paxton team moved to dismiss all the articles on grounds of insufficiency of evidence. Put up or shut up, they seemed to say.

         On August 15, the House Managers replied with some 4,000 pages of documentation and arguments that substantially detailed the evidence underlying each of the articles of impeachment. The back-and-forth, for anyone wishing to get into the weeds of the base, can all be found on the Senate’s Court of Impeachment page. They make for fascinating reading and, for the interested, a worthwhile time suck.

         It is from these documents that recent news stories about burner phones and fake Uber accounts are drawn.

The current state of play

         The trial begins a week from today and, as might be expected, the bombastic rhetoric is heating up. Some storylines:

         Paxton will not testify at this own impeachment. As I wrote last month,

“Paxton’s lawyers have announced he will not testify at his trial because ... he did not testify at the House hearings. This Möbius strip of legal logic is brought to you by Tony Buzbee: ‘They had the opportunity to have Attorney General Paxton testify during their sham investigation but refused to do so. We will not bow to their evil, illegal, and unprecedented weaponization of state power in the Senate chamber.’”

         It may not be that easy. The House managers have indicated they intend to call Paxton. Paxton’s team has objected. The Impeachment Rules are silent on whether Paxton can be called, but he is certainly a fact witness to most if not all the allegations. If he is called, he has the right to decline to answer specific – or all – questions under the Fifth Amendment. And the people of Texas have the right to draw whatever inferences they want from his silence.

         Dan Patrick Legal Advisor, Take Two.  After his first choice declined, Lite Guv Dan Patrick has selected former appeals judge Lana Myers to serve as his legal counsel during the trial. No word yet on whether the members of the Senate have selected their own counsel, as they are entitled to do under the Rules.

         Paxton impeachment pits the Texas GOP against … the Texas GOP. The scope of the intraparty brawl become evident last weekend when Texas GOP elders Karl Rove and Rick Perry each published op-eds urging a full and fair trial for Paxton – but suggesting Paxton’s expiration date may have passed. Their writings contrast with fevered defenses of Paxton, including direct lobbying of senators, from Paxton’s defenders.

         Will Paxton resign? Last Friday, Republican sources reported lots of chatter (paywall) to the Quorum Report about a Paxton resignation. In respeonse, Paxton on Saturday said he would “never stop fighting for the people of Texas and defending our conservative values.” Make of that what you will. September 5^th is still a long way away.

         Meanwhile, the House managers insisted they would press forward with the impeachment even if Paxton resigned, saying they “intend to fulfill their Constitutional duty and proceed with an impeachment trial, regardless of whether Paxton resigns. Resignation does not prevent a trial.”

         State Bar grievance filed against Paxton. A group of attorneys, some with distinguished records as leaders of the Texas Bar, have filed a grievance against Paxton, seeking to prevent him from practicing law in the state again.

         (The State Bar itself went after Paxton for his role in trying to overturn the 2020 election. That lawsuit is still ongoing.)

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Programming Note:

         On Tuesday morning, I will host a Chat on the Substack app. If you do not have it, you can get the app here on Apple or here on Google. Please join for a lively discussion of the important procedural and preliminary issues that day!

         I have not finalized plans for subsequent days yet. This will be during the evidentiary part of the proceedings. I likely will watch all day – so you don’t have to – and then publish an update every evening. Let me know in the Comments what you think about these arrangements.

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         Other Substacks to follow …  because of my morbid curiosity with the mediocrity who is Ken Paxton, and the historic nature of his impeachment, I will be all Paxton, all the time in September. To preserve your sanity (I’ve given up on mine) I offer you some other newsletters to peruse. These all combine great writing with thoughtful insights, and most of them have a Texas connection:

         Texas To The World by former journalist and still-great writer Jim Moore. A combination of great storytelling and trenchant analysis.

         The Border Chronicle by former Texas Observer writer Melissa del Bosque and her colleagues. The best writing about what is actually happening on the border.

         On Texas Nature by Misti Little, who has led the charge on trying to save Fairfield Lake State Park from deep-pocketed developers and TPWD intransigence, but also writes about the natural wonders of Texas.

         The Sex is Great by Austin’s inimitable Ashley Kelsch.  Funny, irreverent, bracingly candid at times, it’s all about … er, well, you just need to read it.

         A Zebra Without Stripes. Take a daughter of missionaries who grew up in Kenya. Add a twisted sense of humor and a deft storytelling ability. Be prepared to laugh.