I’ve spent the last two weeks listening in on the Texas Senate impeachment trial of Attorney General Ken Paxton.
To review, at the tail end of the legislative session in May 2023, the House suddenly,
without warning, held a four-hour hearing in which they heard allegations and
then voted to impeach on 20 counts. No witnesses were heard. No hard evidence was
presented. No interviews leading up to that point had been under oath. We were
told this was like a grand jury; they just have to decide whether there is
enough there to hold a trial.
So that is what the Texas House did; they passed off any actual trial work to the Senate, where all the evidence would be presented.
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| Lt. Governor Dan Patrick presides as judge in the Paxton Impeachment Trial. screenshot from here |
The Senate
Impeachment Trial Process
This is similar to a court trial, but with significant
differences. The jurors are the Senate members. They do not have to reach
consensus, but must have 21 of 31 voting members vote to remove the Attorney
General from his duly elected position. In this case, it will be 21 of 30,
because one of the state senators is Angela Paxton, wife of the attorney
general, who has been attending all the sessions but is recused from voting. We
should note that one of the charges, bribery, reflects on her as well. The
accusers claimed the Paxtons had received home renovations as a bribe to do
political favors.
Earlier in the week a friend of mine commented on social
media that what he’s observing is, whatever anyone believed going into this trial,
they still believe. That’s probably accurate.
There are plenty of sources for information and commentary.
I’ll list some of those below. But for this piece, I’m just giving my impressions—having
listened to almost every part of the two weeks, including closing arguments
this morning. This isn’t intended to persuade either side. There’s no time to
do that. The Senate is now deliberating, and they could come up with a decision
by tonight—likely before you could read this—or in a few days, depending on how
long they take.
I won’t go through each of the 20 charges. But I’ll note,
the case offered somewhere around 15 hours per side to present their case. That
is less than an hour per charge. Cross-examination of the other side’s
witnesses counted as time on the countdown clock. [Note that, as of today they
are dealing only with 16 of the charges. The four related to securities fraud
are pending in courts, I believe. They can deal with those later, depending on
other outcomes. If they remove Paxton permanently from office, those charges won’t
need to be dealt with. If they do not remove him, they could either dismiss
those charges or deal with them separately.]
Impressions
on the Various Counts
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| one of a series of texts pushing the anti-Paxton agenda |
We learned that the investigative team presenting the case
to the House back in May made these allegations based on suspicions of the
so-called whistleblowers. They did not interview Nate Paul, nor the woman who
was hired by his company, nor the contractor who did work on the Paxtons’ home.
In the intervening months they still didn’t do those things. There was nearly
an opportunity to hear from “the other woman,” but, rather than subpoena her
and schedule her testimony, the prosecution noticed her presence and thought
they could call her, but couldn’t give the 24-hour notice that was required,
before their time was running out. Seems kind of too little too late. They
couldn’t have deposed her in June, July, or August?
Here’s what they missed, which was provided to us by the Paxton
defense team: the woman in question applied and was hired according to normal
process, continues to work there, pays for her own apartment in Austin, has not
continued a relationship with Paxton, nor is there any evidence of this hiring
being a cover for a favor to Paxton in exchange for—something unnamed.
The Paxtons had a general contractor to do the remediation
work. He wasn’t contacted. The only connection made to Nate Paul was the
mention of the name Nate during a discussion about possible upgrades, overheard
by Paxton’s aide, who was concerned about it but was relieved, visibly, on the
stand, to be convinced his concerns were unfounded. There is no evidence Nate
Paul paid for anything; the receipts and bank records are in hand, showing
Paxton paid for the renovation work. And the defense provided photo evidence
(it was in the news weeks ago, so the prosecution could have verified at any
time) showing that the Paxtons never upgraded to granite countertops and new cabinets
as alleged. They still have the same kitchen witnesses recognized from before
the repairs.
What the prosecution did was to bring in the people who
reported the claims initially. They laid out their suspicions—and they did this
well. What they saw, if you make assumptions about motive, looked like possible
favoritism toward a particular client.
But repeatedly their claims fell apart on the stand. Under
oath, one after another, the first few days admitted that, when they went to
the FBI to report their boss, Attorney General Ken Paxton, they brought no
evidence with them. By the second week they thought they had remedied this.
Their reports, they claimed, were evidence. They brought their observations
and beliefs and interpretations. So there!
Their stories might have been corroborating evidence,
had there been any material evidence. There wasn’t. There was only these persons’
interpretation of Paxton’s motivations, missing quite often a fuller picture
that they hadn’t sought. And neither had any other investigators.
Another oddity was that, when they went together, as a
group, to the FBI on October 1, 2020, they sat around a table, together,
recounting their observations. Had the FBI assumed their testimony validated any
actual crime, the witnesses would have been interviewed separately, so that
they did not know what the others were saying, thus coloring each others’
stories. Also note that the FBI, with all the “evidence” these five brought to
them, in the ensuing three years have brought no charges.
This is not to say the FBI is spotless—although they may be
in relation to this case. But it was suspicion about the FBI that led to some
of the allegations. Nate Paul had had his home and storage unit searched. He
believed that the original search warrant, of his home, was for drugs and guns,
I think was the story. But when they of course didn’t find anything, they
changed the search warrant to look for some kind of white collar crime, which
entailed going through the storage unit for records. Nate Paul and his counsel,
Wynne, believed they had metadata evidence showing that had happened. Note: eventual
forensic work showed this to be inconclusive—not disproven.
The whistleblowers and others involved thought this was baseless, because the FBI and other federal officials never do anything wrong. Ken Paxton, however, asked for a fuller investigation. There’s more to recognize here. Paxton had been hounded and, he believed, badly dealt with by federal investigators, so he didn’t have blanket trust of them. Add to that, there were, at the time (and more since) multiple instances of federal officials playing fast and loose with citizen rights.
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| Former Travis County DA Margaret Moore testifies Monday. screenshot from here |
It was a rather satisfying moment in the trial when the
defense Tony Buzbee was cross-examining the former Travis County District Attorney Margaret
Moore, who claimed the state could never so much as suspect a federal investigator.
The defense listed one after another of FBI crimes. Here’s some of that
exchange:
Buzbee: I mean, there’s a lot of them. But, did you hear
about the FBI admitted fraud forensic testimony in 32 death penalty cases?
Moore: No.
Buzbee: How about when the FBI conducted improper searches of
US officials using a foreign database?
Moore: I don’t know about that.
Buzbee: How about when the FBI improperly spied on activists?
Moore: I don’t recall reading about that either.
Buzbee: How about when the FBI misused an intelligence
database and performed 278,000 searches?
Moore: I didn’t hear about that.
Buzbee: And the reason I keep asking you about these repeated
alleged FBI abuses is because, when you first heard about this alleged FBI abuse,
the first thing you thought was, “Ridiculous.” Correct?
Moore: No. That’s not correct. That’s not what I said.
Buzbee: You knew that a federal judge had ruled that FBI
agents had conducted illegal searches of businesses?
Moore: I don’t know what you’re alluding to.
Buzbee: How the FBI violated the privacy rights of tens of
thousands of Americans?
Moore: Mr. Buzbee, I’m not aware of that article.
This lifetime law enforcement expert had never heard of any of them. Her claim to know the Nate Paul claim was false, without investigating it, rang hollow. My personal suspicion is that she didn’t want to investigate federal agencies she had to maintain a good working relationship with. That does not bode well for the people subject to the violations, though.
A similar line of questioning happened with the former Texas
Ranger near-superhero David Maxwell, in the OAG, who was handed that case by Moore.
He did a quick Google search on Nate Paul, concluded that he was a crook. So when
he heard out Nate Paul and his counsel, with this suspicion they had about the
search warrant, he thought it was ludicrous. He didn’t say so to them, but he
never intended to do any investigation whatsoever.
The
Whistleblowers
Paxton’s difficulty was that, despite his assignment to his
subordinates to do an investigation, they admitted they “slow-walked” it, and
in essence refused to do the investigation. When he followed up, they said they
would get on it, but they didn’t. They didn’t so much as open a file on it.
Finally, Paxton hired outside counsel. He signed a contract with a young lawyer named Cammack, who was interested and willing in doing the investigation. Cammack said Paxton instructed him to just find out the truth.
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| Cammack was derisively dubbed "the kid" by the whistleblowers. screenshot from here |
Cammack started that investigation, and he also started
another referral given to him, which the prosecutors had been unaware of and
had assumed he was issuing grand jury subpoenas related to the Paul case, which
he was not doing. He was thwarted at every turn by the “whistleblowers.” They
derisively called him “the kid” in their conversations and correspondence. And
they took it upon themselves to deny his contract, give him a cease and desist
letter, and left him unpaid—claiming the Attorney General didn’t have the
rights of the office given to him by the voters, which he could delegate to
them but still held.
And these whistleblowers did worse. They got or made (it was
disputed) official OAG stationery without the Attorney General’s name on it,
and they hired, without permission, outside counsel for $50,000 to
investigate/prosecute/persecute Attorney General Paxton. And then they claimed
the AG was out of line in firing them.
It may be hard to know exactly what was in AG Paxton’s mind
at every turn. But his communications show interest in the people of the state
in general, not the single friend they insisted he was working for. He had
worked hard to stop foreclosures from going through—before the first Tuesday of
the month, during this time of COVID when a stay on foreclosures was about to
end. This ended up having no affect on Nate Paul, as they insisted it did. But
what AG Paxton had expressed to his team was that they may have kept some
elderly grandmother from losing her home. And his policy became national policy
by executive order a couple of weeks later.
There’s a question about whether the whistleblower laws
affected these high-level appointees in the Office of Attorney General. Courts
have ruled that it does, but that is pending appeal. What we might be seeing is
something of a mutiny—and then, because of bad feelings, jumping to conclusions
and accusations to convince themselves and others that their failure to do the
work assigned to them was not what led to the loss of their jobs.
One of them, Brickman, I think it was, insisted that he was not interested and would never take the settlement—the $3 million
that was brought to the legislature, which supposedly triggered the
investigation during the legislative session last March. Except, when the
settlement was finally agreed upon, he took it. He testified that he required
the AG to apologize to them for calling them rogue employees (which, obviously,
they were). He didn’t get that. So far the money hasn’t been appropriated to
pay them, but when it does, it’s because he signed on to receive it. Hmm.
In closing arguments, the prosecutors urged the jury (the
Senate) to believe that they didn’t have to remove all doubt. They just needed
to do what they thought was right. Isn’t that convenient—when the rules and the
law say they must acquit if the evidence hasn’t taken them beyond a reasonable
doubt standard.
The biggest difference between this and a regular case is
that it is political. Sad to say, it is highly unlikely that any of the eleven Democrats
in the Senate will vote to acquit. It’s a team sport. They’re not really on
either team in this one; they’re the handicap. The two teams are: the ones
trying to oust the duly elected Republican official and the ones trying to
restore him to his office to do the people’s work. There are 18 total
Republicans allowed to vote (excluding Senator Angela Paxton).
We can identify the ones very
likely to acquit. These are the ones who voted to dismiss before the trial: Bettencourt
(my state senator), Campbell, Creighton, Hall, Kolkhorst, Parker, Perry, Schwertner,
and Sparks. However, Sparks, Schwertner, and Perry did not vote to dismiss on
all counts. So there are a solid six. If as many as ten senators vote to acquit
after hearing the case, then Paxton is acquitted and returns to work.
There are six identified as
pushing to convict: Huffman, Hughes, Hancock, Middleton, Birdwell, Nichols.
With the eleven Democrats, that puts their count at 17. They would need four
more to convict.
There are several considered “swing”
voters on this issue: besides possibly Perry, Schwertner, and Sparks, who were
willing to dismiss on several counts, there are unknowns Springer, Flores, and
King. So the question is, where will four of them go?
The Senate Trial Players
Unlike other Senate votes, Lt.
Governor Dan Patrick does not cast a tiebreaking vote. He was the judge. And I
have to say, I appreciated his work. It was done with humility, good humor, and
professional respect. I do not know what his opinion is. There were times when
the defense seemed to be saying “Objection. Hearsay” every other sentence. I
didn’t keep track, but as the umpire I couldn’t see that he gave more to one
team than another. He had some expertise on hand to help him answer questions
he had about it. And generally he seemed fair.
I had definite responses to the
two legal teams. There’s a particular style of Texas lawyer, where he talks with
a slow drawl and doesn’t appear too bright—but that is an act that surprises
the opposition when the bite happens. The slow Texas drawl and fumbling
described the prosecution team, particularly their lead lawyer. But there was
no bite. It was fumbling to the end—including when Rusty Hardin rested his case
before cross-examine and redirect of the last witness. Not knowing page numbers
was a problem. Not putting exhibits into evidence was another.
The defense, on the other hand,
was quick, organized, strategic. Tony Buzbee is probably an acquired taste, but
he was passionate and capable, as were the others on his team.
My Conclusion
As my friend said, you probably
saw what you expected from the trial. I had been appalled at the lack of
evidence presented at the House hearing, and the last-minute push to do that
dirty deed. But people kept saying the evidence would come with the real trial
in the Senate. I was open to that. I’ve been disappointed by way too many
politicians in the past. I’m disappointed that Ken Paxton was guilty of the
affair. Where can public virtue be found where there is not private virtue? Or,
as John Adams put it: "Public virtue cannot exist in a nation without
private, and public virtue is the only foundation of republics.” I am willing
to accept that he is repentant; his wife has accepted that. And, as they quipped
during trial, if we impeached for infidelity in Austin, we’d be holding
impeachments for a long long time.
I was willing to see the evidence.
Each time the prosecution laid out the things that looked bad, I could see why
a person might have thought that. But then, each time, the defense got up and
displayed how flimsy that was. Innuendo. Suspicion. Hearsay. Assumption. No
proof. Not any.
I believe I know what should
happen. Whether I am right or not, I pray that the Lord, who knows all, will
grant our state what is right for the people of Texas, that justice may be done.
Resources
Texas Senate provided livestreaming and archived recordings. The archived segments were not always up the same day, but I believe there are
all up now. When the Senate convenes to vote, that should be livestreamed as
well. (If you search YouTube you will also find some livestreaming by various
local news outlets, which was helpful when the Senate website delayed posting
after livestreaming ended.)
Texas Scorecard has several resources, in addition to daily news coverage.
·
Luke Macias, daily emails up through day five
and weekly podcast.
·
Brandon Waltens, daily headlines. You can also look for Brandon Waltens on X (Twitter).
·
The Texas Heist documentary
Houston Conservative Forum—Don Hooper. This source
was new to me. As with Texas Scorecard, there is a bias toward defending AG
Paxton. Know that going in, but the coverage is good, and squares with what I
saw in the hearings, but adding some inside baseball I didn’t know. Video clips
are sourced from Brandon Waltens.
·
Day 1 Prior Election Doctrine (vote on whether
to dismiss each count)
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Day 2—Beginning of Trial
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Day 3
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Day 4
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Day 5
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Day 6
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Day 7
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Day 8
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Elements of Articles of Impeachment
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