What’s the Deal with Ken Paxton’s Criminal Fraud Trial?

If I were innocent, I’d want to clear my name as quickly as possible. That does not seem to be Paxton’s strategy.

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Tuesday, March 21, 2023

         Spring has sprung, to batter an old cliché. Technically, yesterday was the equinox, on which the daylight and the nighttime are supposedly equal. The days are getting progressively longer until mid-June, when they will start to shorten up in anticipation of another equinox in September.

         Out in the Big Bend where I am staying, there was a late winter snowfall which caught many spring breakers by surprise.  The storm left a few inches of snow around the region and made for some pretty surprising (for March) scenery.

         That was Saturday morning; by yesterday it was all gone. Today the temperatures will be back in the 70s.

         The Texas Capitol, it is said, was built for giants but inhabited by pygmies. Not every legislator gets to be a giant, but few aspire to be pygmies.

         Which makes the unrelieved 24-hour-a-day, seven-days-a-week, holidays-included tawdriness of Ken Paxton all the more depressing. Since the day he was sworn in to the Texas House of Representatives in 2003, he has managed to lessen the dignity of every office he has held and reduce our respect for politics generally.  

         Exhibit A: Ken Paxton has been under criminal indictment for fraud for almost his entire tenure as Attorney General of Texas.

How has Ken Paxton still not been tried in an eight-year old felony criminal fraud case?

         This question for the ages was posed to me recently by a wise political friend. It ought to be a source of confusion and mystification to all Texans, both for what it says about Ken Paxton and what it says about our criminal justice system.

         Here’s a quick overview of the situation:

         From the mid 2000s to the early 2010s, Paxton, a lawyer, recommended certain investment firms to his clients and friends without telling them he was being paid by the firms to solicit their business. In other words, he was getting a piece of the action for his supposedly “unbiased” recommendations.

         Paxton also failed to register with the State Securities Board, which regulates such activities. In 2014, while he was running for Texas Attorney General, he was reprimanded by the Securities Board and fined $1,000. Implicit in their findings was that his clients had not known of his arrangements with the investment firms – the gravamen of the fraud charges that were later filed against him. This led a non-profit to file a criminal complaint with the Collin County District Attorney.

         In 2015, six months after taking office as the state’s Attorney General, Paxton was indicted on three felony counts by a Collin County grand jury. He pled not guilty and, as is his right, asked for a speedy trial under the U.S. and Texas constitutions.

         But, eight years later, he still has not gone to trial, and it’s hard not to lay at least some of the blame for the multiple delays at the feet of him and his high-powered, high-priced defense team.

         Basically, the delays have centered around two issues. The first is how much the special prosecutors appointed to bring forward the case should be paid. Since the Collin County D.A. recused himself (wisely: he and Paxton had done business together), the case had to be investigated and prosecuted by independent counsel. Under that arrangement, their legal fees should be paid by the Collin County Commissioners Court, since the attorneys were operating in the place of the county’s D.A. But the commissioners court was, to say the least, not enthusiastic about paying to prosecute their hometown hero Ken. Squabbles over the attorneys fees have bounced up through the appellate courts and back down again since the get-go, and are still not resolved.

         The second issue is where a trial should be held. Paxton has the right to an impartial jury, but so do the prosecutors. For this reason, they argued that the case should not be tried in Collin County, where Paxton is at the political Top of the Heap and his wife is the state senator representing almost all of the county. The case was moved from Collin County to Harris County, but in 2021 a judge moved it back to Collin County. In October of 2021, the prosecutors appealed that decision to the Texas Court of Criminal Appeals. Eighteen months later, the Court of Criminal Appeals still has not ruled on the issue.

         During the pendency of this case, Paxton has:

·      Been re-elected as Attorney General twice (in 2018 and 2022)

·      Been accused by some of his top deputies of “violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses.”

·      Become the subject of an FBI investigation into those charges.

·      Been the target of a whistleblower lawsuit after he fired several of those key staffers.

·      Proposed to settle the whistleblower lawsuit with a $3.3 million payout to the people he fired, to be paid for by Texas taxpayers – a prospect that is viewed dimly by at least some members of the Legislature.

·      Been the subject of numerous editorials in Texas and articles in several national news sites criticizing his ethical lapses and mismanagement of the A.G.’s Office.

         To be sure, there is an ordered rhythm to the turning of the wheels of justice, even with the speedy trial guarantees. Nonetheless, the eight years of delay are a scandal and beg the question: is Ken Paxton being treated like any other defendant? If you or I were accused of felony securities fraud, we would have been able to put off a trial and remain free for eight years?  

         It is a truism that there are two systems of justice in this land: one for the rich and one for the poor. Paxton has clearly benefitted from being able to raise significant amounts for his legal defense – over half a million dollars as of August 2022.

         But Paxton has also benefitted from a second kind of exceptionalism: the willingness of judges, prosecutors, county commissioners, and other players in the criminal justice bureaucracy to put their thumbs on the scale on his side – including by letting the case languish for years.

         The wheels of justice grind slowly, yet something something something. It’s time to give Ken Paxton his day in court, or maybe more accurately, make him have his day in court. Every further delay just reminds ordinary Texans that there’s one set of rules for them, and another for the Ken Paxtons of the world.

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         Publishing Note … Your Humble Correspondent will be out of pocket this weekend and will not be publishing Life Its Ownself on either Friday or next Tuesday.