What in the Wide, Wide World of Sports Is Going On Here?

The Texas Senate has agonized longer than expected over Rules for the Impeachment of Ken Paxton. Tune in at 5:00 today to see if they've succeeded.

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         The great Western cattleman, railroad builder and philosophizer Taggart (his first name lost to history) has poetically summarized my feelings at the moment:

         The Texas Senate was scheduled to meet at 10:00 yesterday (Tuesday) to adopt Rules for the Impeachment  of Ken Paxton. As of 1:30 today, they have not done that. Instead, they recessed – from 10:00 to 1:30 to 5:00 to 9:00 yesterday, and then from 10:00 to 1:00 and now until 5:00 today. I’m taking bets on whether they will recess again until tomorrow morning, although some people in the know say I should be paying attention at 5:00.

         In the meantime, like any citizen operating with very little information but at least some institutional history with the Texas Senate, I plan to speculate on what is going on inside the closed doors and silenced microphones of the Betty King Room behind the Senate Chamber.

         When a Pope dies, all the Cardinals in the Church come together in Rome to elect a successor. The Cardinals fill out ballots and, if no one gains a majority, they are all burned with wet hay and certain chemicals to produce the resulting black smoke that says a new Pontiff has not been chosen. Once a candidate gets a majority, though, the ballots are burned without additives, producing the white smoke that signifies a new Pope. “Habemus Papam” (“We have a Pope”) they shout in St. Peter’s Square.

         Why am I telling you this? Sorry, I wandered off there for a minute …

         Oh, I am telling you this because the Texas Senate is like the College of Cardinals in that it likes to make its most important decisions behind closed doors, but is unlike the Cardinals in that it has no comparable process by which it can tell outsiders whether it’s making any progress towards it goals, whatever they may be at the time.

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         So, what’s going on? The Senate Republicans are caught between a rock and a hard place: they are under intense pressure from the donors and the activist parts of the MAGA base to absolve Paxton of his sins, but the House vote to impeach Paxton was overwhelming – 121-23, with 70% of the House Republicans in the majority. It’s not a good look to just let Paxton off. What’s more, in a recent poll, 51% of voters considered the impeachment justified while only 17% did not.

         Whatever rules are adopted, of course, must create the Illusion of Impartiality. And, in a nod to modern tastes, the Appearance of Transparency (which they’ve already messed up.) Maybe that’s proven harder than expected. To be fair, there are some of what lawyers call “questions of first impression” to be resolved in the rules, among them:

1. Will there be a preliminary effort to dismiss the whole impeachment, on the grounds that the House process was insufficient? Previous impeachments have proceeded on the understanding that the House, in bringing the Articles of Impeachment, had done its job. This time, Paxton's lawyers are arguing that the House’s process was flawed, and Paxton should be entitled to the equivalent of a summary judgment without a trial.

2. What will the rules say about whether Sen. Angela Paxton, the defendant's wife, can participate in the trial and whether she can vote at the end? This is the first time a family member has been called on to serve as a juror; this would ordinarily be prohibited in a trial. Plus, Sen. Paxton is a fact witness in some of the more sensational allegations against the A.G.

3. What to do about other senators who may be fact witnesses or whose impartiality could be compromised, most prominently Sens. Byran Hughes and Donna Campbell?

4. And what about the Dan Patrick Factor? He runs the Texas Senate unlike any other Lieutenant Governor in history. What does he want? And can anyone stop him from getting it?

(FUN FACT: In both previous impeachments in Texas history, the presiding officer over the Senate was named William P. Hobby – father and son, who presided over the Governor James “Pa” Ferguson and Judge O.P. Carrillo trials, respectively. Not in their wildest dreams would either Hobby have imagined a Senate so thoroughly dominated by a Lieutenant Governor. )

         Several possibilities occur to me:

•          As a preliminary matter, there may be disagreements about the scope and duration of a trial. The O.P. Carrillo impeachment trial in 1975 lasted four months; it’s hard to imagine these senators sitting still for that long.

•          In the draft rules, the fix may be in to whitewash Paxton and restore him to the A.G.’s office tout suite. Some critical mass of R Senators (it would not matter if it was only Ds) objected and insisted on a more rigorous or transparent process.

•          There’s broad agreement about the rules, but a long argument over whether Sen. Paxton should recuse herself, and whether the Senate as a body can compel her to do so.

•          The recusal controversy could spread beyond Sen. Paxton to encompass Sens. Hughes and/or Campbell, or even Lieutenant Governor Patrick, who has an outstanding $125,000 loan to Paxtonwhich was supposed to have been paid back by the end of 2019. What do you do when multiple senators have questionable ties to Paxton or his funders?

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         We’ll see at 5:00 whether the senators have reached an agreement on all these issues.