The impeachment trial of Texas Attorney General Ken Paxton, explained

the-impeachment-trial-of texas attorney-general-ken-paxton,-explained
Texas Attorney General Ken Paxton speaking at the “Save America” rally on October 22, 2022, in Robstown, Texas. | Brandon Bell/Getty Images

The right-wing warrior may soon see his legal issues catch up with him. It could shape the future of the Texas GOP.

Ken Paxton, Texas’s Republican attorney general and an ally of former President Donald Trump, may soon see his long-running legal problems catch up with him.

The Texas House voted to impeach Paxton in May, and on Tuesday, the Republican-controlled Texas Senate began Paxton’s impeachment trial, which focuses on allegations including dereliction of duty, bribery, and disregard of official duty. The trial represents an opportunity for moderate state Republicans to neutralize the powerful far-right wing that Paxton represents, and the result could help decide the state party’s trajectory in one of the nation’s biggest GOP trifectas.

Paxton, who made his name filing high-profile lawsuits against the Obama and Biden administrations, has rallied some prominent Republicans behind him, including US Sen. Ted Cruz, former Trump White House adviser Steve Bannon, and the former president’s son, Donald Trump Jr.

“Today marks another milestone in Ken Paxton’s career of fighting the Austin Swamp and Establishment,” Trump Jr. tweeted Tuesday. “Ken will survive and will continue to combat the Swamp in Texas to put America First.”

Many of Paxton’s right-wing allies have sought to cast his impeachment in the same light as the prosecution of Trump, and while Paxton himself has not been so direct, he has warned about “the weaponization of state power” — against the former president and, implicitly, himself. In that sense, the trial could become a microcosm of the national discourse around Trump’s presidential candidacy and reveal just what it might take for Republicans to break with a leader plagued with legal and political problems.

While Paxton has his supporters, other Republicans — including former Bush administration adviser Karl Rove and former Texas Republican Gov. Rick Perry — have supported the impeachment trial given the evidence that has piled up against Paxton.

For years, the state party appeared willing to overlook Paxton’s legal problems so long as he was winning elections. That seems to have changed after he sought to use taxpayer funds to pay out a whistleblower settlement to his former deputies, respected Federalist Society lawyers who accused him of corruption. There have also been new revelations about Paxton’s alleged misdeeds that are difficult to defend: Lawmakers investigating him found that he took great pains to hide his mutually beneficial relationship with real estate investor Nate Paul, whom he allegedly helped shield from an FBI investigation using the powers of his office. Paxton has denied any wrongdoing and unsuccessfully petitioned the Texas Senate to dismiss all of the impeachment charges.

Paxton was suspended from his duties back in May after winning a third four-year term. Lawmakers (excluding his wife, state Sen. Angela Paxton) will decide whether to convict and permanently remove him from office in the coming weeks. They need a two-thirds majority in both chambers to do so following the trial.

But this is Texas, where there is an enthusiastic Republican base, and the impeachment trial is an inherently political proceeding. The outcome of the trial may therefore hinge more on Republican senators’ political calculus than on justice.

“Legislators are thinking about their electoral prospects, which is essentially their self-interest, and that is part of the process,” said Jim Henson, director of the Texas Politics Project at the University of Texas at Austin.

Who is Ken Paxton?

Paxton is among the most prolific state attorneys general in the country, known for leading splashy, multi-state lawsuits against policies of the Obama and Biden administrations and wading into culture war battles. That includes lawsuits seeking to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program and challenging the Affordable Care Act, as well as an investigation he spearheaded into a hospital that provided gender-affirming care to trans youth for unspecified “potential illegal activity.”

Those lawsuits — some of which were successful — allowed him to rise to a level of national prominence that most state attorneys general do not have, earning him powerful allies. Last year, he won Trump’s coveted endorsement in his reelection fight, and also addressed a crowd of Trump’s supporters just before the January 6, 2021, insurrection at the US Capitol.

In June, Cruz told KETK that he thought the Texas House’s vote to impeach Paxton was a “travesty” and that the legal issues at stake should have been resolved in court instead: “We have a system in the court of law that can resolve those issues but every bit as importantly, these allegations were before the voters.”

Bannon also told listeners on his podcast that the impeachment trial was just another witch hunt akin to what he believes Trump is facing with the four criminal indictments against him. “We want the entire MAGA movement to understand that what’s going on in Texas is not just about Texas,” he said earlier this month.

These kinds of figures have long cocooned Paxton from the consequences of his alleged misdeeds, which span more than a decade. Indeed, the basic contours of the misconduct alleged by the Texas House panel that investigated him were already known to the public, well before any murmurs of impeachment. Voters still twice reelected him, albeit after a hard-fought primary last year.

The question is whether the impeachment trial will change their minds.

Why was Paxton impeached?

The impeachment charges center on Paxton’s improper quid pro quo with Paul, an Austin real estate mogul who was indicted in June on eight felony counts of making false statements to financial institutions to obtain billions of dollars in loans.

Paxton allegedly issued a last-minute legal opinion to help Paul avoid foreclosure sales on several of his properties during the pandemic and ordered his staff not to help law enforcement in investigating Paul’s business. He is also accused of sharing confidential records about a 2019 FBI raid on Paul’s properties with him. In return, Paxton allegedly got Paul’s help with a home remodel and with finding Paxton’s alleged mistress a job.

Paxton, meanwhile, allegedly sought to hide his relationship with his alleged mistress and with Paul, leaving behind his security detail and using a burner phone, secret email accounts, and an alias on his Uber account. Those sordid details could prove particularly damaging for Paxton among the religious conservative voters he has long relied on.

Lawmakers investigating Paxton have amassed almost 4,000 pages of evidence and promised additional revelations during the trial.

Nominally, Paxton’s trial is about corruption. But behind the scenes, it’s also a showdown between warring factions of the Texas GOP.

House Speaker Dade Phelan led more traditional Republicans in pursuing Paxton’s impeachment, perhaps perceiving that he could strike the state attorney general at a moment of weakness and reclaim power for himself and like-minded colleagues. How that power struggle plays out could determine whether the state party, which seems likely to maintain control in Texas for the foreseeable future, embraces the more moderate conservatism championed by the Texas speaker of the House, or Paxton’s far-right style of politics.

The impeachment trial is only the latest episode in Paxton’s long list of legal troubles.

Perhaps the most pressing case against him involves a 2015 accusation leveled by Byron Cook, a former Republican state legislator, and Florida businessman Joel Hochberg. They claim Paxton encouraged them to invest $100,000 or more in a technology company called Servergy Inc., without notifying them that he would earn a commission if they did so. This is alleged to have happened in 2011, while Paxton was a member of the Texas House.

The indictment in that case alleges that Paxton “intentionally fail[ed] to disclose” that he had been given compensation in the form of 100,000 shares of Servergy stock, charging him with two counts of securities fraud. He was also charged with a failure to register with the state securities board. Paxton has denied the allegations in the case, which is still making its way through the courts all these years later.

In 2020, the FBI opened a criminal investigation into the whistleblower claims that are the subject of the settlement that Paxton has pushed in the legislature. Paxton has said that he’s done nothing wrong and has accused the FBI of infiltrating his office. No criminal charges have been filed yet, but a federal grand jury in San Antonio called witnesses close to Paxton earlier this month.

What the trial reveals about the Republican Party

Paxton’s approval ratings have fallen in recent months, though less so among Republicans, who are still on the fence about the impeachment trial, according to the latest August polling by the Texas Politics Project: 47 percent said investigations of Paxton were based “mostly on the facts,” 28 percent said they were based “mostly on politics,” and a quarter offered no opinion.

As far as the Republican state senators charged with deciding Paxton’s fate are concerned, those numbers create a problem: They don’t provide a slam-dunk political case for either removing him from or keeping him in office.

“Those calculations are very hard to make,” Henson said. “It would be one thing if you could say, ‘70 to 80 percent of Republicans in the state love Ken Paxton and say it was wrong to impeach him and would be wrong to remove him.’ That’s not what the data is telling them.”

That’s left state senators facing a conundrum in terms of determining what Republican voters actually want from the trial. Choosing wrong could mean facing an unwelcome primary challenger in the next election.

Complicating matters is Republicans’ broader “fundamental distrust of institutions,” said Brendan Steinhauser, a GOP strategist in Texas. “Republican voters and activists don’t trust the media that is covering the stories around Trump and Paxton. They don’t trust the investigative bodies, the Department of Justice, the FBI. They don’t trust the prosecutors or judges, even if some of those were appointed by Republican presidents or got elected in Texas.”

While Trump has been able to use that distrust to increase his base of support in the GOP primary, Paxton’s support hasn’t proved as durable in the leadup to the impeachment trial, Henson said. But the choices that Republicans, nationally and in Texas, make with respect to Trump and Paxton will reveal the extent to which the party is capable of holding its own to account.

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