Best mugshot ever
The state’s top officials came to the defense of embattled Attorney General Ken Paxton, saying a state bar investigation into his professional conduct is “politically motivated” and raises questions about the state’s separation of powers.
On Friday, Paxton said he had filed an objection to a state bar investigation prompted by his decision to file a lawsuit challenging the results of the 2020 presidential elections in four battleground states. The U.S. Supreme Court dismissed the lawsuit saying Texas did not have standing to file it.
Paxton called the state bar investigation “partisan” and said it was “weaponizing” its regulatory power against the attorney general’s office.
[…]
Gov. Greg Abbott and Lt. Gov. Dan Patrick, also blasted the investigation into the fellow Republican. Abbott, a former attorney general, said said the issue presented a “threatened intrusion upon executive branch authority.”
“These allegations raise separation-of-powers questions under our Constitution,” Abbott said in a statement. “I am confident that the Supreme Court of Texas, to which the State Bar of Texas is ultimately accountable, will ensure that the judicial branch upholds the law.”
Patrick said the investigation “appears politically motivated.”
“It is clear the Investigatory Panel, stacked with Biden and Democrat donors and activists, has weaponized its state-granted power, intended to protect a fair and just practice of law, to instead launch an attack over political differences,” he said in a statement. “These actions undermine the integrity of the Investigatory Panel and the State Bar of Texas as a whole.”
See here, here, and here for the background. Note that there are two complaints against Paxton, so it’s not clear to me which one is being whined about or responded to. I’m picturing Paxton standing behind Abbott and Patrick, like a little brother who’s gotten in over his head with the neighborhood kids. He’s picked a fight he doesn’t think he can win, so he tries to scare off his antagonists. It’s like an episode of The Little Rascals, if Spanky or Alfalfa had been caught trying to overthrow the government. We live in such dumb times.
Assuming arguendo that the motivation indeed was and remains primarily political, so what?
It wouldn’t — without more — compel the conclusion that the complaint has no merit. Both propositions can be true and are not inherently in conflict.
That said, this Kibitzer is queasy about the approach being taken here.
SUPREME MISCONDUCT – WHO WILL SIT IN JUDGMENT?
The alleged misconduct was committed in a court – the Supreme Court of the United States, no less – and that Supreme Court should be perfectly able to impose proper sanctions if warranted. Sua sponte even, exercising inherent control over its docket, the attorneys appearing before them, and presiding over the nation’s constitutional business more generally as ultimate guardians. Not to mention being in a position to do their part to preserve the regime and the key role of elections as a mechanism of political control by “We the People”.
PAXTON WAS BEFORE THE SCOTUS
And prior notice of charges to assure due process to the offender was obviously no problem because Paxton had e-filed the petition himself as lead attorney (e-signed with his unique Ken Paxton official-capacity email address). No issue here of having to acquire personal jurisdiction over a stray lawyer roaming around somewhere in the provinces under a Lone Star recruiting supporters for lawfare to overturn the results of a national election.
Nor was there a motion for sanctions by a party in Texas v. Pennsylvania, even though the states named as would-be defendants were best positioned to make a complaint about the baseless, if not insurrectionary, nature of Paxton’s bid to overturn the presidential election outcome of 2021.
In other words, Paxton was already before the court in the capacity of lawyer, not just his office, and not just as representative of the State of Texas through an Assistant AG from his office.
It would have been a different story if Paxton had been the elected AG but not an attorney. Then the question would be whether the staff or private attorney litigating in his stead committed the (alleged) misconduct, or the “client”, i.e. nonattorney Attorney General or even the State of Texas (the named party/petitioner), or both.
Nonattorney Attorney General may sound like an oxymoron, but the Texas constitution doesn’t require the AG to be a licensed attorney.
Finally, the Supreme Court could presumably have made a referral to the Disciplinary Counsel of the Texas State Bar itself. That didn’t happen either.
THE PROCEEDING SHOULD BE OPEN TO ALL
On the other hand, the bid to judicially overturn the elections was brazen, not just unprecedented. It is a matter of grave importance.
Therefore, if the disciplinary proceeding against Paxton goes forward — it should be opened to the public to assure maximum transparency. For example, the public should know why then-SG Kyle Hawkins was missing from the filing even though he would routinely represent the State of Texas in the SCOTUS, and the other attorneys from the Office of Attorney General whose names DID appear on( some but not all of) the SCOTUS filings by State in Texas v. Penn should also be named as persons of interest and/or material witnesses, and be called to testify. The deposition(s) or hearing testimony should live-streamed and a recording posted on the Bar’s or the Texas Judiciary’s website.
JUST SAY NO OR JUST FOLLOWING ORDERS: WHO DID AND WHO DIDN’T ?
Would they claim attorney-client privilege? And who would be the client exactly? Paxton? The State? The people of Texas? Hawkins is no longer with the OAG and no longer under Paxton’s thumb, so perhaps he could be invited or compelled to give testimony under oath as a private citizen with material knowledge. He should be able to explain why his name was not on the SCOTUS petition, and shed light on whether top lieutenants in the OAG did have a choice to say “NO” (of course they did), and whether he had to resign or agree to resign to avoid being terminated for insubordination. That might even have some relevance to the whisteblower suit against Paxton’s OAG that is now pending on interlocutory appeal in the Third COA.