In Ken Paxton’s impeachment trial, the defense and prosecution are scoring wins

In the first week of suspended Texas Attorney General Ken Paxton’s impeachment trial, his lawyers and House prosecutors each scored points against each other, and now they’re heading into the back stretch looking to punctuate their cases.

The trial resumes at 9 a.m. Monday in the Texas Senate chamber, where, to this point, public turnout has been sparse for the state’s first impeachment trial of a statewide officeholder in more than 100 years. Based on the time remaining to present evidence for each side, it is possible the case could be turned over to the senator-jurors to deliberate by the end of the week. The question before the 30 lawmakers — 18 Republicans and 12 Democrats — is whether Paxton abused his position as the state’s top lawyer in 2020 to provide favorable legal services to a campaign donor, Nate Paul.

When the trial recessed Friday afternoon, the senators had just heard from David Maxwell, the former law enforcement director under Paxton in the attorney general’s office. An imposing figure at 6-feet, 6-inches, Maxwell testified that he cautioned Paxton against getting involved with Paul, an Austin real estate tycoon who had complained to Paxton that federal authorities had illegally searched his home the year before. Maxwell, a former Texas Ranger, said he found Paul’s complaint meritless and that he had shared that opinion with Paxton. Rather than heed his advice and close the matter, Maxwell said, Paxton hired an outside lawyer to investigate Paul’s complaint.

“If he didn’t get away from this individual and stop doing what he was doing, he was going to get himself indicted,” Maxwell said he warned Paxton.

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In August, the American-Statesman reported that federal prosecutors in San Antonio convened a grand jury to review evidence of Paxton’s association with Paul. Two months earlier, in June, Paul was arrested and indicted on eight counts of mortgage fraud in connection to the search that he alleged to Maxwell was unlawful.

Austin defense lawyer Rick Cofer, who is not involved in the impeachment trial, said Maxwell’s testimony was particularly convincing because unlike other witnesses whose testimony the jurors might view as having a political bent, Maxwell “is not a creature of politics.”

“He had a cogent reason for every decision he made,” Cofer told the Statesman in a live trial debriefing Friday evening. “His direction to the attorney general came from the perspective of a career law enforcement official.”

Maxwell is among four former senior aides to Paxton whom House prosecutors called to testify. Between them, they said they once held Paxton in high regard but grew concerned over his constant involvement in legal matters involving Paul, at the expense of larger issues facing the state. The four aides are among eight whistleblowers in the attorney general’s office who quit or were fired after they made a complaint against Paxton to the FBI in September 2020.

The effectiveness of their testimony was mixed. While Paxton’s lawyers struggled to break the dispassionate Maxwell, another whistleblower withered.

One of the memorable moments of the trial’s first week came Thursday with Paxton lawyer Mitch Little grilling Ryan Vassar, the attorney general’s former deputy for legal counsel, about the FBI complaint. Boxed into a corner, Vassar conceded that the complaint lacked evidence, a response that Paxton supporters online cited as evidence of a sham trial. The next day, Vassar returned to the stand to address his testimony. Given a night to think on it, he testified that what he meant by no evidence is that the whistleblowers did not bring physical documents with them to the FBI meeting. The cleanup went further when House prosecutor Rusty Hardin, in questioning Vassar, noted that Vassar’s experience and observations constitute evidence.

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From a political perspective, the stakes couldn’t be higher for Paxton. If Paxton prevails, he’ll return to work and fight for conservative causes like border security and abortion restrictions. The trial comes 10 months after 4 million Texans in November voted to reelect him to a third term. If Paxton loses, he’ll be removed as attorney general. That’s a high bar, requiring support from two-thirds of eligible senators, or 21 of 30 members. Another senator, Paxton’s wife, Sen. Angela Paxton, R-McKinney, does not get to vote under the rules the Senate approved for the proceeding. If Ken Paxton is removed, the senators could take it a step further with a second vote on whether to permanently bar him from running again for attorney general or holding any public office in Texas.

Early test goes against Paxton

Hoping to prevail without a trial, a defense motion to dismiss the case via summary judgment failed Tuesday by a 24-6 vote. All other defense motions to dismiss some or all of the impeachment articles came up short, with only one of them getting enough votes — 10 — to clear the two-thirds barrier.

Yet, Paxton scored some wins throughout the week. Among the 16 articles against him, one accuses the attorney general of instructing his lawyers to draft a pandemic-era legal opinion against foreclosure sales, days before Paul’s properties were scheduled for auction. Paxton’s lawyers argued that the opinion sought to provide relief to homeowners facing financial distress, and that Paxton’s position was so understandable that it was later adopted by the federal government. Specific to Paul’s properties, they said the foreclosure sale did not go through, and not because of the attorney general’s office’s opinion, but because Paul stopped it by declaring bankruptcy.

Another article is fatally flawed, Paxton’s lawyers argued, because it misidentifies the job title assigned to an outside lawyer Paxton enlisted to look into Paul’s complaint. House prosecutors have not addressed this discrepancy.

In a broader defense against the charges, Paxton’s legal team, led by Houston lawyer Tony Buzbee, argued that Paxton is the victim of a mutiny by the whistleblowers who, they allege, conspired with outside forces including members of Gov. Greg Abbott’s office. That theory has yet to be fleshed out with witness testimony.

Meanwhile, House prosecutors will continue to lay out their case, likely with testimony from some or all of the remaining four whistleblowers. They need not get a conviction on all 16 impeachment counts. One is enough to remove Paxton from office.

On the prosecutors’ witness list is a former Paxton confidant named Drew Wicker, who they hope will provide testimony that shows Paxton arranged for Paul to receive a confidential law enforcement file that identified people and entities involved in the federal investigation into him. Wicker is also central to a bribery charge on a Paxton home remodel. A transcript of an interview with House investigators shows Wicker overheard a conversation in Paxton’s home in which a contractor said he needed Paul’s approval before proceeding with a countertop upgrade.

During opening statements, Buzbee teased to financial records he says leave no doubt that the Paxtons paid for the remodel.

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Both sides began the trial with 24 hours to question witnesses. Heading into the weekend, House prosecutors had 13 to 14 hours remaining, and for Paxton’s side the remaining time was similar.

Paxton has not appeared in the Senate chamber since Tuesday morning when the trial began and he was required to be there to enter a plea to all counts. Based on a pretrial ruling from Lt. Gov. Dan Patrick, who is presiding over the trial similarly to a judge, House prosecutors cannot compel Paxton to testify, and his lawyers say they will not call him to testify.

This article originally appeared on Austin American-Statesman: Ken Paxton impeachment: Second week of trial resumes in Texas Senate