Legal Perils Loom in Texas AG Ken Paxton’s Impeachment Trial

Texas Attorney General Ken Paxton’s upcoming state Senate impeachment trial is a legal minefield that the combative official must deftly navigate to avoid a conviction.

The proceedings could still be months away, but Senate leaders plan to unveil trial procedures by June 20. The ground rules will include limits on presenting evidence, the number of witnesses, and how much evidence must be shared with Paxton (R) in advance.

Veteran Texas political observers say a cautious person would tiptoe through the trial landscape. But as the state’s top prosecutor, Paxton has always been aggressive. Even suspended from office and with few prominent Republicans coming to his defense, he has remained anything but timid.

“Paxton has been very ham-handed because he’s always taken the view this is a knife fight and he only stabs first,” said Cal Jillson, a political science professor at Southern Methodist University. “This is a different deal for him because much of the political leadership has turned against him.”

The rules are also expected to specify how many questions witnesses can be asked, whether they’ll be under oath, whether senators or only lawyers can pose questions, and whether the proceedings will be televised.

Perhaps the two biggest issues in which Paxton will have a say are whether he testifies in his own defense, and whether his wife, state Sen. Angela Paxton (R), will recuse herself from voting in the decision to convict or acquit him.

The 20 impeachment articles focus on abuse of office, misuse of state funds and bribery –- but also include allegations that Paxton cheated on his wife.

‘Drive-By Shooting’

Former president Donald Trump and US Sen. Ted Cruz (R-Texas) are among those who have rushed to social media to defend Paxton, who rose to national prominence as a champion of far-right causes and an abortion foe. But “virtually no one is saying he’s a good man, a good Christian servant” wrongly accused, Jillson said. Instead, they’re attacking the process.

Paxton has condemned the impeachment charges as politically motivated fiction designed to help the Biden administration, a frequent target of Texas’s public policy challenges. He said his political opponents were “poised to do exactly what Joe Biden has been hoping to accomplish since his first day in office; sabotage our work, my work, as attorney general of Texas.”

Tony Buzbee, one of Paxton’s lawyers, called the impeachment “a drive-by shooting to politically assassinate one of the leading conservative voices, not only in Texas but in the United States” during a news conference Wednesday.

Buzbee described the case as “a sham” engineered by “someone with a vendetta” against Paxton, though he didn’t say who. He urged the Senate to throw out the case before trial, saying the charges are comprised of second-hand information not based on sworn witness testimony.

“Not even traffic court would accept this kind of foolishness,” Buzbee said.

When the trial gets underway, Paxton must decide whether he will testify, which would leave him open to cross-examination.

If Paxton answers just his lawyers’ questions but asserts his Fifth Amendment right not to respond to questions from House prosecutors, he’ll “look cocky and smug,” said GOP consultant Derek Ryan said. “That looks even worse and gives senators even more ammunition to remove him,” Ryan said.

The Texas House has enlisted a pair of legendary Houston defense attorneys, Dick DeGuerin and Rusty Hardin, to prosecute their case.

DeGuerin’s past clients include real estate heir and convicted murderer Robert Durst and Branch Davidian cult leader David Koresh, as well as a pair of high-ranking Texas politicians who beat back corruption allegations.

Hardin’s client roster includes NFL quarterback Deshaun Watson, MLB pitcher Roger Clemens and E. Pierce Marshall, a Houston oilman who to fought to protect his late father’s fortune from his widow, Playboy model Anna Nicole Smith.

Buzbee is a Houston attorney best known for defending former Texas Gov. Rick Perry (R) against abuse-of-office allegations. Buzbee also represented more than 20 women who settled sexual misconduct claims against quarterback Watson, Hardin’s client.

Paxton has also retained Dan Cogdell, another prominent Houston defense lawyer already representing Paxton in the ongoing criminal securities-fraud case that seeded some of the impeachment allegations. In that case, he’s accused of hiding his financial interest in an investment he touted to clients.

Paxton’s lawyers say they may need more than a year to prepare for a trial, to depose at least 60 witnesses and review more than 1,000 documents.

Senate leaders have said the trial will begin by Aug. 28. Buzbee said he’s not clear yet what legal grounds he’ll have to push for more time.

DeGuerin and Hardin are busy reviewing evidence, which Hardin described at a recent news conference as “10 times worse” than allegations already made public.

Some evidence or testimony related to the undisclosed allegations may be new to federal prosecutors also probing Paxton on corruption allegations. The trial may provide fresh material for that investigation. “Some of these allegations are quasi-criminal in nature,” DeGuerin said.

The question of whether Angela Paxton will recuse herself – she hasn’t yet -- hangs over the upcoming trial.

“There’s no way on God’s green Earth she should cast a vote on her husband’s impeachment,” Jillson said, “unless Angela is still really pissed at his extramarital affair.”

Made for Television

Former GOP state lawmaker Jonathan Strickland, who now manages the well-funded Defend Texas Liberty PAC, has publicly threatened to recruit primary challengers against any senator who votes to remove Paxton.

The state attorney general’s office dropped a fat binder outlining Paxton’s response to the allegations on each senator’s desk shortly after the House impeached him May 27. Lieutenant Governor Dan Patrick (R), who served as Trump’s Texas campaign manager and will preside over the senate trial, was among those who said they’ll ignore that material to remain impartial.

Some Republican senators may face a personal dilemma in judging Paxton, Ryan noted, because they share his policy positions.

“The most damning evidence may come out, and some voters will say: ‘We still like what he’s doing to the Biden administration,’” Ryan said.

Both the outside prosecutors and Paxton’s defenders are pushing for the trial to be fully televised and livestreamed

“It’s about protecting the public,” DeGuerin said. “The people have a right to know. And I think they’ll be appalled.”

Video snippets of testimony and questioning from the House and Senate proceedings will undoubtedly crop up in next spring’s campaign ads as well.

“You’ll see this pinned to members on both sides of the aisle,” Ryan said.

While DeGuerin and Hardin must convince 21 of the 31 senators to permanently remove Paxton from office, they only have to win on one impeachment article.

“If he’s convicted on one of them, he’s out,” DeGuerin said. “And there’s no appeal—that’s it.”