Eric Gay/AP Photo
Texas state Sen. Angela Paxton, wife of impeached state Attorney General Ken Paxton, sits in the Senate Chamber at the Texas Capitol in Austin, Texas, May 29, 2023.
This story was cross-posted from the Texas Observer, an investigative news organization that covers Texas communities whose stories are often ignored.
The forthcoming impeachment trial of Attorney General Ken Paxton is guaranteed to provide a colorful show, spotlighting exhibits recently uploaded to the Texas Senate website with salacious details on the alias Paxton apparently established on Uber to obscure records of rendezvous with his alleged mistress and dealings with his disgraced developer pal.
We’ll also learn lessons on how Texans confront the corrupt through a highly anachronistic political tool in a hearing live-streamed via the Senate website beginning Tuesday, September 5 at 9 a.m. Many Americans may recall the impeachments of U.S. Presidents Donald Trump or Bill Clinton—fraught theatrical affairs in which the House voted to impeach and a politically divided Senate then failed to convict. But such political trials are centuries-old, having been imported by the Founding Fathers from England, where an impeachment conviction could lead to beheading for egregious rogues. Under today’s U.S. and Texas constitutions, the most dire result is simply an embarrassing spectacle and possible removal from office. No one dies.
Yet the recent revelations of damning evidence make it seem possible, though still unlikely, that even Ken Paxton, the ultimate survivor, could lose his job via a Texas Senate vote. So far, the rules made by the Republican-dominated body for this political trial are surprisingly by-the-book—and some of Texas’ top attorneys are assisting the prosecution.
As Alexander Hamilton, the same dude who centuries later inspired the hit musical, once wrote: The subjects of impeachment are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
In other words: Impeachment was created to protect society from elected scoundrels.
And yet Paxton, a former state representative and senator, stood accused of violating various laws and abusing his power well before his first term as attorney general began in 2015. It took eight years for the House of Representatives to finally decide Texans needed protection from him.
In some ways, Paxton’s articles of impeachment resemble the charges in his pending state criminal case for stock fraud (a matter stalled in criminal courts) and in the allegations made in a civil lawsuit filed by ex-senior employees of the AG’s office (which is stalled in civil court after state lawmakers declined to foot the bill for a settlement).
But impeachment is entirely separate and is nothing like a criminal or civil trial. The impeachment trial will be purely political by design.
Paxton has successfully stonewalled his state criminal charges, avoided federal prosecution, and steadfastly denied wrongdoing.
Trial rules are being written by the senators themselves. And the impeachment trial judge will be Lieutenant Governor Dan Patrick, an ultraconservative ex-radio talk show host who lacks legal training, though Patrick has indicated that he will tap a retired district court judge to serve as his advisor. Unfortunately, Patrick has struggled to find a jurist willing to serve who never contributed to any of the many reputable attorneys who have attempted to unseat Paxton. (Marc Brown, a retired appellate judge, recently declined the appointment after recalling he’d donated $250 to Eva Guzman, a former State Supreme Court justice who ran against Paxton in the Republican primary in 2021.)
Today’s Texans are relying partly on records from Texas’ last truly high-profile impeachment: that of Governor James “Pa” Ferguson, impeached for embezzlement in 1917. Ferguson, a colorful character, also stood accused of profiting by mixing personal and political business. (He’s also remembered for having propelled his wife “Ma” Ferguson into the governorship after the Senate removed him and barred him from running again.) Ferguson appealed his impeachment to the courts, which upheld the Texas Senate’s decision and underscored its authority. Essentially, the Senate “becomes a court and continues as such regardless of legislative sessions,” the ruling said.
On impeachment, the Texas Constitution is stronger than the feds’. An impeachment vote here results in immediate suspension from office, so Paxton was ousted in May after house members voted 121-23 to approve 20 different impeachment articles.
Texas senators serve both as rule-makers and as jurors in Paxton’s case. They must decide whether he’s guilty of any of the allegations and, if so, whether his exile from office should be permanent. If the Senate does vote to convict, they could also ban Paxton from ever holding other Texas public offices—though such a decision might favor the political fortunes of Paxton’s wife, state Senator Angela Paxton, as they did for Ma Ferguson, who became Texas’ first female governor.
For Paxton, who served in the Legislature’s upper chamber until 2015, a trial by the Texas Senate means a trial by his former colleagues and his wife’s current ones.
In typical civil or criminal court cases, prospective jurors can be struck from any panel for conflicts of interest—but not in the Paxton impeachment. Paxton’s wife has been excluded from voting. But senators have not barred state Senator Donna Campbell, who once employed the woman who’s been identified as Paxton’s mistress and who was supposedly given another job as a favor to Paxton by his developer friend, Nate Paul. Nor have they barred state Senator Bryan Hughes, an ally, former roommate, and ex-tenant of Paxton’s.
In order to win a conviction, the lawyers who will be presenting the case for impeachment, including Houston celebrity criminal defense attorneys Rusty Hardin and Dick DeGuerin, will have to convince twice as many people as in a typical courtroom’s 12-member jury.
Hardin, a former state prosecutor, is famous for successfully defending celebrity clients like Major League Baseball pitcher Roger Clemens, once accused in a high-profile report of using performance-enhancing drugs. DeGuerin, among other things, is renowned (in cynical legal circles at least) for having convinced a Galveston jury to acquit millionaire Robert Durst after Durst killed and cut up his neighbor. Working together for the first time, these two legal titans must convince two-thirds of the majority-Republican Senate.
This will be only the third impeachment in Texas history. At the federal level, there have been only 21 impeachments, mostly involving federal judges. Curiously, both Hardin and DeGuerin were peripherally involved in the impeachment of Samuel B. Kent, once the lone U.S. district judge in Galveston. Kent enjoys particular infamy as the first and only federal judge to be impeached for sex crimes on June 9, 2009.
Like Paxton, Kent stood accused of a pattern of abuse of power that had endured for years. Like Paxton, Kent—who called himself “King Kent”—had been accused of retaliating against employees. The allegations that eventually brought down Kent were that he sexually assaulted female staff members, then lied to investigators.
In that matter, DeGuerin and Hardin stood on opposite sides: DeGuerin was the judge’s criminal defense attorney and Hardin represented Cathy McBroom, the whistleblower who accused the judge of sexually assaulting her. By the time Kent was impeached by the U.S. House, he’d already been criminally convicted of perjury and imprisoned. Only after being impeached did he resign, avoiding a U.S. Senate trial.
In contrast, Paxton has successfully stonewalled his state criminal charges, avoided federal prosecution, and steadfastly denied wrongdoing. Indeed, he has profited by using allegations against him as an opportunity to stockpile campaign cash. (There’s another curious link in Paxton’s case to the disgraced “King Kent.” One attorney Paxton chose as his ally in his upcoming impeachment trial is Anthony Buzbee, a powerful Houston trial attorney, who got his start as Kent’s former law clerk.)
Like Pa Ferguson and Sam Kent before him, Paxton will stand and fight.
Behind Paxton are deep-pocketed conservative backers who recently dumped $3 million into the lieutenant governor’s campaign coffers. Patrick isn’t up for reelection until 2026, so those donors seem to be betting that their funds could influence the trial by either dissuading senators before the fact or by threatening anyone who dares to vote to convict.
In Texas, money talks. So who will dare to speak up for ethics?
No matter what happens to Pa Paxton, the fortunes of ultraconservatives like Ma Paxton will continue to rise.
