Ken Paxton’s impeachment trial will begin Sept. 5, with his attendance required

By James Barragan, The Texas Tribune -- Suspended Attorney General Ken Paxton will answer to 16 of 20 articles of impeachment at a trial to begin Sept. 5, the Texas Senate said Wednesday night after spending more than 20 hours drafting the trial rules in private.

Paxton’s wife, Sen. Angela Paxton, R-McKinney, can attend, but she will not participate in deliberations or closed sessions, the rules said.

The trial, which will be held in public, will begin with opening statements. Lawyers for the House impeachment managers will present evidence first, with cross-examination of witnesses allowed. Paxton’s lawyers will be allowed to present evidence and witnesses as well.

A list of witnesses, who under the rules can be compelled to appear, must be filed by Aug. 22 and made available to the opposing side.

A resolution laying out the rules was adopted on a 25-3 vote without discussion. The three votes in opposition were by Sens. Sarah Eckhardt, D-Austin; Bob Hall, R-Edgewood; and Angela Paxton.

A separate resolution, adopted 28-0, requires Paxton to appear in person in the Senate chamber “to answer the said charges of impeachment.”

After the votes, Lt. Gov. Dan Patrick, who presides over the Senate, told senators, their staff and others involved in the court of impeachment to refrain from discussing the merits of the case with others, including Paxton, his lawyers and lawyers for the House impeachment managers.

A separate rule prohibits senators from discussing the case with each other as well, he said.

“No member of the court, or the presiding officer of the court, shall advocate a position on the merits of the proceedings to other members of the court or the presiding officer of the court until such a time as deliberations shall begin,” Patrick said.

A major question settled by the Senate rules was the determination that Angela Paxton has a conflict of interest in her husband’s trial. She can sit in the impeachment trial because the Texas Constitution requires all members to do so, but she will not be allowed to “vote on any matter, motion, or question, or participate in closed sessions or deliberations.”

Before the trial, Paxton’s lawyers can challenge any or all of the articles of impeachment, which can be dismissed with a majority vote by senators.

Another rule said the senators will deliberate behind closed doors, and their votes on the articles of impeachment will be made “without debate or comment.”

After final judgment, senators may submit a written statement within 72 hours of their vote to the chamber’s clerk, which would become “a part of the official record and entered into the journal.”

The rules ban the use of cell phones on the Senate floor by members of the court and their staff, as well as both legal teams while the impeachment trial is proceeding, unless the phones are necessary for hearing assistance or for reviewing documents.

The public and the press will be allowed to attend and view the impeachment hearing from the Senate gallery.

On the final day of the regular legislative session in late May, senators created a committee of seven senators, gave it permission to conduct its business in private and directed it to return Tuesday to present rules of procedure to a “caucus of the Senate” — which typically meets outside of public view.

Members of the committee did not publicly discuss their work, but that had stopped Paxton’s allies and the House impeachment managers from lobbying for their preferred package of rules.

Paxton’s legal team, led by boisterous Houston attorney Tony Buzbee, had urged the committee to recommend rules that would allow the Senate to toss out the House-approved articles of impeachment, calling the procedure a “kangaroo court” because Paxton was not given the opportunity to defend himself.

The House managers, who have hired Texas legal giants Dick DeGuerin and Rusty Hardin to present the case against Paxton, sent the Senate committee 17 examples of rules that were used in past impeachment trials in Texas, including a recusal rule.

Patrick on Monday tamped down on talk about ending the impeachment trial before it can begin.

“We actually have to address the issues,” Patrick told Dallas radio host Mark Davis. “If not, they could keep Ken Paxton away from doing his job forever. … In general, we have to deal with it.”

The Senate committee’s decision on recusals will be closely watched because Sen. Angela Paxton, R-McKinney, is among the senators who could decide her husband’s fate.

Paxton’s legal team and the House managers have also quarreled about whether the trial should be public and how much discovery and preparation will be allowed.

Buzbee said in his first news conference as Paxton’s lead lawyer that the process of lining up witnesses and documents could take up to a year. And Paxton’s legal team argued in a memo to the committee that it should limit testimony to deposition statements, rather than allow live witnesses, which they said could turn the proceedings into “political theater.”

What do house managers want?

Paxton’s permanent removal from office would require a two-thirds vote in the Senate.

Paxton was impeached by a vote of 121-23 in an unprecedented vote in the House during the final days of the legislative session. He was immediately suspended from his official duties, and Gov. Greg Abbott appointed former Secretary of State John Scott as interim attorney general.

In the run-up to the House impeachment vote, Paxton supporters, including former President Donald Trump, urged lawmakers to vote no.

On Saturday, the State Republican Executive Committee, grassroots leaders who help set the Texas GOP’s platform, condemned the impeachment in a 53-11 vote. A resolution denounced the House for not allowing Paxton to defend himself against the accusations and for not putting witnesses under oath when they were questioned by investigators. It likened the impeachment process in the House to a “banana republic.”

A majority of the impeachment allegations against Paxton originated with eight of his former top deputies who, in 2020, met with law enforcement to accuse Paxton of misusing his power to benefit his friend and political donor, Austin real estate investor Nate Paul. In return, they said, Paxton apparently accepted bribes that included a $25,000 political donation and funding for remodeling Paxton’s Austin home, plus they said a woman involved in an extramarital affair with Paxton was given a job at one of Paul’s companies.

The former officials said Paxton directed agency employees to help Paul gain access to investigative records and that he drafted a legal opinion that helped Paul stall impending foreclosure sales on properties. Paxton also pushed the agency to hire an outside lawyer to harass Paul’s enemies, the officials said.

On June 6, a federal grand jury indicted Paul on eight counts of making false statements to financial institutions. He is involved in numerous other bankruptcy and legal disputes related to his real estate businesses.

Within two months, all eight of the attorney general’s office executives who reported Paxton to the FBI and other agencies were fired or resigned. Four of them filed a whistleblower lawsuit in November 2020 claiming they were improperly fired in retaliation.

Their report set off an FBI investigation that was taken over by the U.S. Justice Department this year.

Some of the articles of impeachment also dealt with Paxton’s eight-year-old securities fraud case in which he is accused of soliciting investors in Servergy Inc. without disclosing that the McKinney tech company was paying him to tout its stock.

Once the impeachment trial rules are adopted, Patrick has until Aug. 28 to issue a proclamation setting the date for the Senate to convene as a Court of Impeachment, according to the Senate resolution adopted on May 29.

The resolution also created the rules committee, which is led by Sen. Brian Birdwell, R-Granbury, and includes Republican Sens. Brandon Creighton of Conroe, Pete Flores of Pleasanton, Joan Huffman of Houston and Phil King of Weatherford, as well as Democratic Sens. Juan “Chuy” Hinojosa of McAllen and Royce West of Dallas.

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