December 10, 2023

The trial to determine whether suspended Texas Attorney General Ken Paxton remains in office or is found guilty of misusing his position moved into its second week Monday with dramatic testimony that for the first time included mention of the thrice-elected Republican’s extramarital affair and its effect on the office’s morale.

And, acting as the judge in the Texas Senate Court of Impeachment, Lt. Gov. Dan Patrick said he expects testimony to be completed by as soon as Thursday. And the senators who must sit in judgment of Paxton will not get a day off until they reach a verdict.

Week 2 of Ken Paxton’s impeachment trial opens with somber remembrance

The start of the trial’s second week coincided with the 22nd anniversary of the deadly terrorist attacks on the World Trade Center in New York on Sept. 11, 2001. And, as is the Texas Senate’s enduring tradition, before getting down to the business of the day, Monday’s activities started with a prayer.

This time, the task fell to state Sen. Brian Birdwell, a Grandbury Republican who was a lieutenant colonel in the Army stationed at the Pentagon when the seat of the American military was targeted in a crashing commercial airliner. Birdwell suffered life-threatening injuries, including serious burns and his recovery required dozens of surgeries.

Texas Sen. Brian Birdwell, R-Granbury, leads the Senate in prayer during day 5 of Texas Attorney General Ken Paxton’s impeachment trial in the Senate chamber at the Texas State Capitol in Austin on Monday, Sept. 11, 2023. Brian Birdwell was in the Pentagon when American Airlines flight 77 struck. (Juan Figueroa/Pool via The Dallas Morning News)

Texas Sen. Brian Birdwell, R-Granbury, leads the Senate in prayer during day 5 of Texas Attorney General Ken Paxton’s impeachment trial in the Senate chamber at the Texas State Capitol in Austin on Monday, Sept. 11, 2023. Brian Birdwell was in the Pentagon when American Airlines flight 77 struck. (Juan Figueroa/Pool via The Dallas Morning News)

All 30 of Birdwell’s Senate colleges flanked him in the well of the Senate as Birdwell’s prayer called for a remembrance of those whose lives were lost in the attacks, blessings for the survivors and the families of the fallen, and gratitude for those who heeded the call to arms for the nation’s response.

In an impeachment trial, is the definition of ‘evidence’ self-evident?

Not necessarily. Last week, Paxton’s former deputy attorney general for legal counsel Ryan Vassar, a whistleblower, handed the defense team a cudgel with which to hammer the House impeachment managers and their hired lawyers.

Under sometimes withering cross-examination, Vassar acknowledged that when he and the other whistleblowers from Paxton’s office brought no “evidence” with them when they first met with the FBI to air their concerns about Paxton, which included accusations of bribery and abuse of office.

The next day during redirect questioning, Vassar was able to clear up, or perhaps clean up, the statement. he said he meant that they may not have brought things like documents, photos and such. But they did provide verbal details that, in their “best judgment,” showed Paxton had done wrong while in office.

Lawyers for the impeachment managers sought to bring amplification to that clarification. Questioning Mark Penley, Paxton’s former deputy attorney general for criminal justice, attorney Rusty Hardin for the House impeachment managers asked if whether all information brought to the attention of law enforcement in an investigation is “evidence.”

Yes, Penley replied. Hardin then asked if that evidence should be interpreted as the final word in an investigation. No, Penley replied. The investigators are expected to run the necessary traps and determine the value of any evidence, he added.

Putting a ‘ham sandwich’ on trial, at least figuratively

Paxton defense lawyer Tony Buzbee took issue with testimony from Gregg Cox, the first assistant district attorney for Hays County and formerly a staff member of Travis County District Attorney’s office. Cox listed several “potential” crimes that Paxton might have committed. And that prompted Buzbee to bring up the oft-maligned combination of bread and ham.

“You could indict a ham sandwich,” Buzbee noted, adding a bit of courtroom flair to his repetition of the legal cliche. His point was that if Paxton had actually committed some of the “potential” misdeeds, why had he not been indicted?

It’s fair to point out that Paxton has been indicted on felony security fraud charges since 2015. The case has not yet gone to trial and Paxton has maintained that the charges are without merit.

The American-Statesman last month reported that federal prosecutors had seated a grand jury in San Antonio and called witnesses close to Paxton to testify on a matter they’re investigating.

So far, no witnesses for the defense

When Monday’s action began, Patrick told both sides they had each used up about 14 hours of the 24 hours allotted in the trial to question witnesses. When the day ended, the House had about nine hours left and the defense about 12.

But so far, only prosecution witnesses have been called to testify. The prosecution has yet to rest. Also fair to point out that the burden of proof is on the prosecution, which is why lawyers for that side need to support their case with witness testimony.

Paxton’s team has no burden of proof, unless it’s to dispute or discredit testimony from the other side.

But the bottom line is, if Paxton’s side is confident the House managers failed to meet their burden of proof, the defense can rest without calling any witnesses.

This article originally appeared on Corpus Christi Caller Times: Here are the takeaways from Week 2, Day 1 of Paxton impeachment trial

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