Tuesday is going to be a huge day in the Ken Paxton impeachment saga, as the Senate committee in charge of setting the rules for the Senate trial get around to doing that. There’s been a lot of energy towards influencing them, mostly by the defense team.
A crook any way you look
As a Texas Senate committee works in secret to devise rules for an upcoming impeachment trial, allies for suspended Attorney General Ken Paxton are lobbying hard for the ability to dismiss the allegations against Paxton without the need for a trial.
House impeachment managers are pushing back, warning the committee against adopting rules that would pave the way for a “sham trial.”
The seven-member committee is expected to issue its recommendations to the full Senate on Tuesday. Because the panel has wide latitude in crafting those rules, many observers expect its work to be critical to Paxton’s chances of saving his job in a trial that is expected to start no later than Aug. 28.
Paxton’s lead attorney, Tony Buzbee, has been on a media tour in recent days, arguing that the House impeachment process was so flawed that the Senate should create rules that allow members to effectively dismiss the case pretrial.
“We’re told this is supposed to be like a trial,” Buzbee told Dallas radio host Mark Davis on Thursday. “Well, in every court across the United States, if the case that’s brought is so terribly weak, flimsy, it shouldn’t be in court, there should be a mechanism at the beginning to throw it out. So I’m suggesting that that should exist here.”
Buzbee has called for rules that allows a summary proceeding, or a speedy procedure by which senators could decide the case based on the evidence so far. Some county Republican parties have passed resolutions that go further, saying the Senate should not even consider rules and return the 20 articles of impeachment to the House.
On Thursday, the House board of impeachment managers sent a memo to the Senate committee that served as a response to Buzbee’s comments. The memo encouraged the committee to take guidance from the “tried-and-true rules of Texas trial procedure and evidence” and offered 17 examples of rules used in past impeachment trials for District Judge O.P. Carrillo in the 1970s and Gov. James E. Ferguson in 1917.
“We fully appreciate that progress on the proposed rules is at or nearing completion; however, given Mr. Paxton’s counsel’s alarming public request for a sham trial, we wish to share with the committee the findings of our research of the rules that were used in the impeachment trials of Carrillo and Ferguson,” the memo said.
As for the county GOP resolutions, the top impeachment manager, Republican Rep. Andrew Murr of Junction, responded in a Dallas Morning News op-ed Friday, noting the resolutions “focus entirely on the process” rather than the facts of the case. He said he was perplexed by Paxton supporters calling for no trial at all, saying it was the “only way to reach a resolution that is fair to Paxton.”
One of the 17 rules that the managers’ memo suggested addresses “the issue of when a Senate member is disqualified or subject to recusal.” The memo specifically cited state Sen. Angela Paxton, R-McKinney, the wife of the impeached attorney general.
Buzbee has said that decision is up to Angela Paxton. Texas GOP leaders have echoed that, but some have also nodded at the possibility of a rule addressing it.
“That will be up to her as well as the rules created by the Senate,” Gov. Greg Abbott told reporters Thursday.
[…]
Paxton’s side has been the most aggressive in trying to influence the rules. Buzbee has warned that if the committee does not create a possible pretrial off-ramp, the Senate could be in for a painstaking process featuring more than 60 witnesses, thousands of pages of documents and a time frame that could last up to a year.
Two other lawyers defending Paxton — Chris Hilton and Judd Stone — have personally appealed to Patrick as the rules were being crafted. They sent a letter to the lieutenant governor Saturday asking him to put a stop to investigative actions the House has taken post-impeachment, arguing the House “has no authority to do anything regarding the impeachment proceedings until the Senate establishes the rules.”
Hilton and Stone, who recently left positions with the attorney general’s office, also said they were available to “answer any questions or provide the attorney general’s position on the appropriate rules for these proceedings, if desired.”
Patrick apparently did not respond, according to a letter Paxton’s attorneys sent a day later that repeated their request for intervention by the lieutenant governor.
Buzbee added Thursday that Paxton’s team has “asked to appear before the rules committee.”
Also Thursday, Paxton’s team sent reporters an email highlighting a Federalist article by prominent conservative attorney Harmeet Dhillon that urged the Senate to allow both sides to have input on the rules. Dhillon also suggested a number of rules herself, including the exclusion of live witnesses in favor of testimony by deposition.
Patrick has promised a fair trial but otherwise has largely declined to comment on the Senate’s preparations. He briefly waded in during a news conference Thursday in Dallas, denying that his previous campaign loans to Paxton compromised his neutrality to preside over the trial.
By now everyone knows that the historical record for impeachment in this state is sparse, as noted in the story. As such, it’s understandable and even reasonable that we look towards the civil and criminal justice system for analogs on how to conduct this thing. But if we’re going to do that, then let’s be consistent about it. There’s literally no jury in which the spouse of the defendant could serve in their judgment. Moreover, the decision of whether or not to be on the jury would not be up to them. The judge asks up front if anyone on the panel knows anyone involved in the trial and excuses anyone who says Yes. The attorneys on both sides get to strike a certain number of prospective jurors that they think might favor the other side or disfavor them. Point being, ain’t no way Angela Paxton should be allowed to serve on this jury if we’re using “every court across the United States” as a guide.
Similarly, I’m not sure whether to cast the “personal appeal” that Chris Hilton or Judd Stone sent to Dan Patrick, who is nominally the judge in these proceedings, as a motion they filed or an example of ex parte communications. Lawyers are not supposed to talk to the judge on their own, without the other lawyers present. I can’t say for sure that this “personal appeal” is sketchy or not – a letter or email sent to the Lt. Governor’s office could be seen as a motion or a brief, which would be perfectly fine. But again, if we’re going to use this analogy as something other than a rhetorical device for Tony Buzbee, then let’s be consistent about it and clear about what it means. And by the way, the one person in all this who could provide some clarity is Dan Patrick, which would also perhaps give some reassurance that the Senate will actually treat this with an appropriate amount of seriousness. But as is typical, he can’t be bothered to say anything that isn’t his usual political blather.
Now let’s talk a little more about Paxton’s defense team, which is currently on leave from their regular jobs at the AG’s office.
The Texas attorney general’s office waived its own ethics rules when allowing six employees to take extended leaves to defend their boss, Ken Paxton, in his upcoming impeachment trial, according to agency records obtained by The Dallas Morning News.
A longstanding agency policy only allows attorneys to perform outside legal work in narrow circumstances, after a rigorous vetting process and without pay in order to avoid conflicts of interest.
First Assistant Attorney General Brent Webster granted an exception for the six staff in late May, and also promised the employees their jobs back after the impeachment proceedings end, the records show.
The staffers’ absences leave key roles at the attorney general’s office unfilled ahead of the upcoming Senate trial that could drag on for months, legal experts said.
“If all these high-up assistant attorneys general are taking leave, who’s attending to their business in their absence?” said Jim McCormack, an attorney in private practice and former General Counsel and Chief Disciplinary Counsel at the State Bar of Texas.
[…]
Hilton and Stone organized a law firm — Stone Hilton PLLC — on May 31, according to formation papers filed with the Secretary of State. They have since issued written communications regarding Paxton’s impeachment trial using that firm’s letterhead.
Also on May 31, Webster sent the employees a formal letter authorizing them to represent Paxton in their “individual capacity in all matters related to impeachment proceedings.”
“You will be permitted to return to your position and assume full duties at the OAG when this matter is concluded,” he wrote.
Webster determined in the letter that the staffers’ activity poses no conflict with their employment with the agency, that they can be paid for the outside work with non-agency sources, and that their “temporary absence will not disrupt or impede ongoing OAG operations in any manner.”
“I further grant an exemption to OAG policies restricting outside legal representation to the extent any would otherwise prohibit the representation,” he wrote.
It’s not clear whether Paxton will pay the agency employees for their work. He retained Houston lawyer Tony Buzbee to lead his defense in a Senate trial that must begin by Aug. 28.
See here for the background and the unease I expressed at this development. This is another reason for concern, given that we don’t know who’s paying for any of Paxton’s defense. If it turns out that the same fat cat moneybags that have generally funded Paxton and are likely funding Buzbee are also funding these on-leave staffers, then it would be a hell of an ethical mess if they succeed in getting Paxton off and go back to their previous jobs now with a sack of billionaire cash on their personal ledgers. I’m pretty sure our already-pathetic ethics and financial disclosure laws don’t cover this. But come on, how many people in positions of power in this state do we want to be in hock to rich people? Especially if we have no clear way of finding out who they are and how much hock they’re in to them? “Mess” doesn’t begin to describe this.
Finally, here’s a look at the four whistleblowers whose lawsuit helped lead to all this. I just want to point out one salient fact about all of them:
Paxton recruited Blake Brickman to the attorney general’s office in February 2020. After a career in Republican politics and working as a lawyer in private practice, Brickman served as Paxton’s deputy attorney general for policy and strategy initiatives.
From 2015-19, Brickman was chief of staff to Kentucky Gov. Matt Bevin, considered one of the most conservative governors in the country. Earlier in his career, Brickman was chief of staff for Republican U.S. Sen. Jim Bunning and a campaign manager for U.S. Rep. Andy Barr, also a Republican.
John Hodgson, a staunchly conservative Kentucky state representative who served with Brickman in Bevin’s administration, lauded Brickman for his conservative principles.
[…]
Ryan Vassar worked for Paxton for five years, rising to be the agency’s chief legal officer before he was fired in November 2020.
When Paxton personally promoted him to deputy attorney general for legal counsel at age 35, Vassar was the youngest person Paxton had appointed to the position, which involved supervising 60 lawyers and 30 professional staff across five divisions.
Prior to the attorney general’s office, Vassar had worked for other top Texas Republicans, including former Gov. Rick Perry as a fellow in the office of general counsel and former Texas Supreme Court Justice Don Willett as a law clerk.
[…]
Mark Penley was fired in November 2020 after a little more than a year as deputy attorney general for criminal justice, supervising about 220 employees.
Penley is a former federal prosecutor in the U.S. attorney’s office for the Northern District of Texas and has almost 40 years of legal experience. A graduate of the U.S. Air Force Academy, Penley served for five years, reaching the rank of captain.
[…]
David Maxwell worked in the attorney general’s office for almost 10 years, rising to director of law enforcement, supervising 350 employees. He came to the agency under then-Attorney General Greg Abbott and stayed after Paxton took over in 2015.
Before joining the attorney general’s office, Maxwell was with the Texas Department of Public Safety for 38 years, attaining the rank of sergeant and working as a Texas Ranger for 24 years. He has nearly 50 years of law enforcement experience investigating crimes, including public corruption.
Penley is later noted to be a “lifelong Republican”. Only Maxwell doesn’t have such a designation in his mini-profile. As we have seen, whenever there is an attempt to hold any Republican accountable for their actions, the first page of the playbook is to decry the whole thing as a partisan witch hunt dreamed up by radical leftists to destroy good conservatives. I would invite anyone to read about these four gentlemen and then contemplate where exactly they fit into that narrative.
Seems to me that Paxton gets a lot more due process than the rest of us. OAG ethics rules waived so his team can leave their jobs and get paid by his anonymous donors? Ethics, schmethics.
No one’s above the law. When Paxton comes before the law, a lot of folks want to change the rules.
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