Welp.
Still a crook any way you look
The State Bar of Texas on Wednesday moved to drop its lawsuit against Attorney General Ken Paxton for his attempt to overturn the results of the 2020 presidential election, extending a cascade of legal and political wins for the once-embattled Republican leader.
In a court filing, lawyers with the bar’s Commission for Lawyer Discipline asked the Texas Supreme Court to dismiss the suit, citing the high court’s December decision to toss a separate state bar lawsuit against Paxton’s top aide, Brent Webster, for working with Paxton to challenge the 2020 outcome in battleground states won by Democrat Joe Biden.
The state bar had sought to sanction Paxton, which could have carried a punishment ranging from a private reprimand to disbarment. Lawyers from the bar — which regulates law licenses in Texas — have argued that Paxton, in falsely claiming to have uncovered major evidence of election wrongdoing, forced the battleground states “to expend time, money, and resources to respond to the misrepresentations and false statements.”
The bar’s dismissal motion effectively ends a case that dates back to May 2022. It is Paxton’s second major legal victory within the last year: In March, prosecutors dropped long-running felony securities fraud charges against Paxton under an agreement that required the attorney general to perform 100 hours of community service and take 15 hours of legal ethics courses. Paxton also agreed to pay around $271,000 in restitution to those he was accused of defrauding more than a decade ago when he allegedly solicited investors in a McKinney technology company without disclosing that the firm was paying him to promote its stock.
See here for the previous update. I can’t say I’m surprised. Hugely disappointed but not surprised. The lesson here is clear: Having friends in high places is better and more productive than living a virtuous life. Accountability is for suckers. Texas Public Radio has more.
NOT PERSONAL …. OFFICIAL, INSTITUTIONAL, ENDURING
The Texas Tribune writes: “The bar’s dismissal motion effectively ends a case that dates back to May 2022. It is Paxton’s second personal [sic] legal victory within the last year.”
This is wrong! The whole point of the Supreme Court’s disposition is to let Webster and Paxton off the hook because of their *official* status as executive branch officials (Webster only derivatively, of course).
So, to call this a PERSONAL victory is at best misleading (it’s partially true only, allowing that Paxton and Webster ALSO benefit personally by keeping their SBOT record clean). The big deal here is that we now have newly-forged precedent to the effect that AG lawyers are beyond the law, i.e. unaccountable to the disciplinary system that all other Texas lawyers are subject too. That precedent will not just apply to these named lawyer-defendants during their remaining time in office, but to their successors likewise.
More importantly, you will soon see the new non-accountability doctrine stretched to bring other governent lawyers within its protective shield. Indeed, the push is already under way: Petitioner Paxton (i.e. the OAG) has moved the SCOTX to VACATE the opinion of the Dallas Court of Appeals so it cannot be cited as precedent in the future cases. It currently stands for the proposition that the AG is not “unit of government” which would be authorized to bring an immediate (interlocutory) appeal when the trial court doesn’t rule that the goverment unit enjoys immunity from suit.
IT’S REALLY ABOUT (NO) CHECKS AND BALANCES
The press coverage of Paxton v. Commission for Lawyer Disticiple is widespread but very superficial: Passing reference to separation of powers as the decision rationale in Webster, and about the CFLD capitulating. That’s not incorrect, but what is really involved here is another giant step in the ongoing project of eliminating checks and balances by exempting these government lawyers from the State Bar’s (not Bar Association) professional accountability mechanism.
Couldn’t the reporters find some law professor that is willing to put things into perspective and candidly assess the ramifications of what the SCOTX has done? Apparently not. Where is the critical appraisal? … It’s useless to get reaction from practicing appellate attorneys. They are necessarily beholden to the High Court, since their livelihood depends on them and their good graces. Some willing to talk will even have you believe that jurisprudential decisions of the Texas Supreme Court are not political.
THE AG ASKS AND THE SCOTX GIVETH
But it probably doesn’t have all that much impact immediately because (1) the constitution does not even require the AG to be a licensed lawyer, so he can always act through licensed assistant AGs (even if he were disbarred), and (2) Brent Webster could simply be replaced with another loyalist if he were disbarred, with minimal effect to the OAG as an institution. There is always some turnover at the OAG.
Most importantly, however, the AG get’s his way virtually all the time in the all-GOP SCOTX anyhow. In part that’s because the high court is heavily populated with Abbott appointees (John Devine is an exception), who is himself both a former AG and a former SCOTX member. That’s not in any way to their discredit, but it does makes for a very homogonous group in terms of values, ideological priors, and policy preferences, whether they are self-aware of the perils of the groupthink and consensus dynamics or not.
And since the lawywers practicing before the high court are well aware of the ideological climate in the high court, it makes no sense to present innovative out-of-the-bubble legal arguments that are sure to be losers. So the legal discourse and manevering space is very constrained in the court of last resort, often limited to haggling over textual minutiae, leaving aside or playing down what’s really at stake in terms of substance and broader ramifications. The recent and ongoing open records cases are but one example. In one of those they barely acknowledged (in a footnote) that a violation of university code of conduct rules by a student is not the equivalent of a criminal conviction.
TL:DR.