5 questions loom as Attorney General Ken Paxton’s impeachment trial gets started

Sept. 5, 2023

"5 questions loom as Attorney General Ken Paxton’s impeachment trial gets started" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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The Texas Senate’s impeachment trial of Ken Paxton is finally here.

After a long, hot summer of pretrial battles, political pressures and nagging uncertainties, the Senate will begin the process Tuesday of deciding whether the suspended attorney general should be permanently removed from office. It will be only the third impeachment trial in Texas history.

The trial begins more than three months after the House voted to impeach Paxton, accusing him of misconduct in 20 articles of impeachment, many of which centered on Paxton’s relationship with Nate Paul, an Austin real-estate investor and campaign donor. Paxton is accused of misusing his office to help Paul in exchange for favors, including a remodel of Paxton’s Austin house and a job for the woman with whom Paxton was allegedly having an extramarital affair.

The vote in the House was overwhelming and bipartisan, but the Senate presents a different political landscape. Its GOP caucus is seen as more aligned with Paxton’s brand of conservatism, and he boasts more personal connections in a chamber where his wife, Angela Paxton, is a member, and where he served for two years before becoming attorney general in 2015.

Rules adopted by the Senate allow Angela Paxton to attend the trial, but she cannot participate in deliberations or vote on each article.

Permanently removing Paxton requires support from 21 senators — two-thirds of the 31-member Senate. That means that if all 12 Democrats support removal, half of the 18 remaining Republicans with a vote would have to agree to kick him out of office for good.

But there could still be a long way to go before a resolution. Here are five questions that loom large as the trial kicks off:

Will there be a full-blown trial?

Patrick and the senators have a lot to consider before they can hear opening statements.

Paxton’s lawyers have filed nearly two dozen pretrial motions that could consume the opening hours — and perhaps days — of the trial. A large chunk of the motions seek to dismiss the articles out of the gate, while others deal with issues like whether Paxton can be compelled to testify.

Under the trial rules, Patrick can rule unilaterally on motions that would not result in the dismissal of articles. Pretrial motions to dismiss must be approved by a majority of senators. Patrick can defer rulings on pretrial motions until after all evidence is presented if he believes the information is necessary for a ruling. A majority of senators also can vote to defer rulings for the same reason.

Last week, a special committee of seven senators was supposed to finalize a report with recommendations on all motions. That report is confidential.

Paxton allies have been pressuring GOP senators to support the pretrial motions to dismiss, while the House impeachment managers hope the case remains intact after the initial blitz of rulings.

Texans for Lawsuit Reform, a powerful GOP-aligned group that has been at odds with Paxton, has urged senators to resist “acquitting Paxton before the trial even begins and the evidence has been presented.”

Does Paxton testify?

Early on, Paxton vowed not to testify in the trial. His lead lawyer, Tony Buzbee, released a statement to the media in early July that declared Paxton “will not dignify the illegal House action by testifying.”

But whether Paxton takes the witness stand may not be up to him.

When the Senate approved trial rules in June, they gave the presiding officer the power to issue subpoenas to compel the attendance of witnesses.

Paxton’s lawyers have filed a pretrial motion asking the Senate to effectively carve him out of that provision. They argued the trial is a criminal proceeding, so Paxton is entitled to the same legal protections as any criminal defendant, like not being forced to testify.

The House managers opposed that motion, saying the trial rules provide no exception for Paxton. They said Paxton has a Fifth Amendment right to refuse to incriminate himself in testimony, but he must assert that right from the witness stand.

Ruling on that pretrial motion will be one of the Senate’s tasks.

Does Patrick show his cards more?

Lt. Gov. Dan Patrick is the presiding officer of the trial — effectively the judge — and he has kept observers guessing on how he personally feels about Paxton’s myriad problems.

Typically self-assured and outspoken, Patrick has played his cards close to the vest and surprised even some skeptics with how seriously he has taken preparations for the trial. But he has also played into his critics’ suspicions by accepting $3 million in campaign funding from a pro-Paxton group in June.

In one of his few media appearances that touched on the trial recently, Patrick rebuffed a key argument from Paxton’s side.

"It’s not a criminal trial,” Patrick said. “It’s not a civil trial. It’s a political trial.”

That was welcome news to the House impeachment managers, who had been expressing the same view. But more broadly, they know that Patrick runs the Senate with an iron fist, and if at any point he wanted to put his thumb on the scale in favor of a certain outcome, he probably could.

How he handles the pretrial motions will probably be the first major glimpse into how much power Patrick plans to exert over the process. Under the trial rules, he can unilaterally rule on any motion that does not seek to dismiss articles of impeachment — or he can send the motion to the senators for a vote, taking the pressure off himself.

Who are the star witnesses?

Both sides were required to submit witness lists last month, and they are supposed to be secret. But it is easy to predict some of the names that are likely included, like the former top lieutenants to Paxton who reported their concerns about his relationship with Paul to the FBI in 2020.

The big question is which witnesses will senators hear from who have not spoken publicly before.

Could it be the woman with whom Paxton allegedly had an extramarital affair? One of the articles accuses Paxton of being bribed by Paul through his “employment of a woman with whom Paxton was having an extramarital affair.” Olson has kept a low public profile in recent years.

The affair has taken center stage ahead of the trial. Last month, House managers unveiled new claims that Paxton and Paul used a fake Uber account so Paxton could visit Olson.

The increased focus on the affair puts Paxton’s wife, Sen. Angela Paxton, in a closely watched position. The trial rules disqualified her from deliberating and voting on the articles of impeachment — something she disagreed with — but she can still attend and can also be called as a witness.

What happens outside the Capitol?

Are there any legal or political events outside the Senate that could shake up the trial?

The most anticipated legal development lately has been a federal indictment. Last month, a Paxton attorney, Dan Cogdell, acknowledged to reporters that a federal investigation into Paxton’s relationship with Paul was ongoing. And after that, the Austin American-Statesman reported that a grand jury had convened in San Antonio to hear from witnesses close to Paxton.

Paxton is already under indictment on state securities fraud charges that date back to 2015. Neither side in that case expects it to advance during the impeachment trial, and they have agreed to regroup at an Oct. 6 pretrial hearing, presumably after the trial.

Politically, there are few top Texas Republicans left who have not weighed in on Paxton’s impeachment in some way. But one who could still make waves is former President Donald Trump.

Both Paxton and Patrick have closely allied themselves with Trump over the years, and while Trump blasted the House’s impeachment of Paxton, he has been silent on the Senate’s handling of the case so far. If it looks like Patrick’s Senate is moving toward removing Paxton, will Trump break his silence and intervene?

Disclosure: Texans for Lawsuit Reform has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/09/05/ken-paxton-impeachment-key-questions/.

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