Impeachment rules will set tone for Ken Paxton’s trial in the Texas Senate

AUSTIN — All eyes will be on the Texas Senate on Tuesday as the chamber unveils rules that will set the tenor for Attorney General Ken Paxton’s historic impeachment trial.

The rules will determine key aspects of the trial, such as whether it will be akin to a full blown criminal or civil trial or resemble the impeachment proceedings of past presidents that were considered foregone conclusions even before they began.

The rules also will resolve whether lawmakers with connections to the allegations against Paxton, most notably his wife Sen. Angela Paxton, must recuse themselves.

“You set the rules, you set the tone of the affair,” said Bandon Rottinghaus, a University of Houston political science professor. “The ability to control what gets heard and what doesn’t and for how long is as good as the power of impeachment itself.”

Paxton, his allies and the House managers overseeing his prosecution in recent days have publicly opined on how the trial should be run, with both sides saying they hope to avoid a “sham” trial.

But what each side wants out of a Senate impeachment trial is far apart.

Paxton would prefer a trial with no live witness testimony or new evidence beyond what was in the report that led to his impeachment by lawmakers in the House. His lead attorney, Tony Buzbee, wants the senators to quickly vote on the allegations in a summary judgment over allegations he said would not hold up in any court.

“If that happens, you know, this is over before it gets started,” Buzbee told Dallas radio station AM 660 on Thursday.

The team of House managers acting as prosecutors in the case want something more akin to a full trial, according to a memo they sent to a Senate special committee Thursday. And a whistleblower who could be a key witness in Paxton’s impeachment trial said he wants to testify before the Senate.

“For years, Ken Paxton has lied, hidden, and delayed justice at every turn possible,” whistleblower James “Blake” Brickman said in a statement. “I hope to testify in person at the Senate impeachment trial because Texans deserve to hear the whole truth about Ken Paxton’s rampant corruption.”

The House voted overwhelmingly on May 27 to impeach Paxton, making him the first statewide elected official impeached in more than 100 years. Allegations against the three-term attorney general include charges of abuse of office, corruption and unfitness for office.

Many of the articles of impeachment revolve around complaints from eight of Paxton’s own most senior-level employees who alleged in 2020 he used the power of the office to help campaign donor and real estate developer Nate Paul.

Paxton has long denied any wrongdoing. He has said the impeachment is based in fiction and has bristled over the impeachment process, which gave him no chance to address the allegations against him. He has been suspended from office since he was impeached.

‘A full and fair trial’

Rep. Andrew S. Murr, the Junction Republican who leads the House managers for Paxton’s impeachment trial, wrote in an opinion piece in on Friday that conservatives in the House faced backlash for their votes to impeach Paxton. He called for a “full and fair trial in the Senate.”

The House managers want the power to subpoena and call witnesses at the trial, according to the memo they sent to the Senate rules committee. Meanwhile, attorneys for Paxton think neither side should have subpoena power and that all witness testimony should come in depositions outside of the Senate to avoid “extended political theater.”

“Presenting live witness testimony on the floor of the Senate introduces a needless piece of showmanship that will do nothing to aid the Senate in its decision making or advance the ends of justice,” Paxton attorneys Judd E. Stone II and Christopher D. Hilton wrote in a letter to the Senate rules committee Friday.

Recent impeachment trials have been conducted with and without witnesses.

Both of Trump’s impeachment trials were abbreviated affairs with depositions presented at the trial. Former president Bill Clinton’s impeachment trial also had no live witnesses.

A 2021 impeachment trial of South Dakota’s attorney general permitted witness testimony. That proceeding — prompted by the attorney general hitting and killing a man while driving distracted — concluded in one day. The 2009 trial of former Illinois governor Rob Blagojevich, who was accused of corruption and offering to sell a political appointment to the U.S. Senate, had witness testimony.

Live witness testimony will suggest that the Senate intends to engage in “earnest fact finding, providing fairness to both parties,” said Ross Garber, a lawyer who has defended five governors and an attorney general against impeachment in other states.

“Or is this going to be political theater that’s engineered toward a preordained conclusion?” Garber said. “Recent presidential impeachments have been more of the latter, while other recent state impeachment trials and trials involving federal judges are more aligned with the former.”

Recusal

The Senate must create rules regarding recusal, House managers noted. They pointed specifically to Paxton’s wife, the McKinney senator, who wouldn’t be allowed as a juror in any other judicial proceeding involving her husband.

“It has already been publicly disclosed that at least one Senator, Angela Paxton, presents an issue regarding the Court’s impartiality because she is Mr. Paxton’s spouse,” House managers wrote.

The Texas Constitution requires all senators to participate in an impeachment hearing and that disallowing a senator would disenfranchise the nearly 1 million Texans she represents, they wrote.

In her first public statements on impeachment Monday, Paxton referenced her constitutional obligation to be at the hearings but did not state her intentions related to conflicts of interest, but said she will be in attendance.

“I have twice been elected to represent the nearly one million Texans who reside in Senate District 8, and it is a tremendous honor and privilege to be their voice in the Texas Legislature,” her statement said. “Each time I was elected, I took an oath to uphold the Constitution and the laws of this great state, and Texas law compels each member of the Senate to attend when the Senate meets as a court of impeachment.”

“As a member of the Senate, I hold those obligations sacred and I will carry out my duties, not because the Constitution demands it and because my constituents deserve it,” she added.

Paxton’s impeachment attorneys countered with an all-or-nothing response. If recusal rules are set, then Paxton should be able to question the impartiality of all senators based on any public statements they might have made about the attorney general, his lawyers added.

Texas law is mum on the issue. Rottinghaus, the University of Houston political scientist, said connections between politicians in these cases are inevitable.

“There are unavoidable political entanglements that the senators have with the attorney general that you have to be seen as part of this puzzle,” he said.

But a spouse serving as a quasi-juror in her husband’s impeachment trial is unprecedented.

At least one other senator — Republican Bryan Hughes — has some involvement with the allegations made against Paxton. Hughes was the “straw requestor” who sought an attorney general opinion that proved favorable to Paul. Lt. Gov. Dan Patrick, who oversees the Senate, is owed campaign loans from both Paxtons.

Buzbee, on the Mark Davis show Thursday, said he wouldn’t argue either way.

“Each senator has to make that decision. I certainly wouldn’t want to say anything about what she should or should not do,” Buzbee said, referring to Sen. Angela Paxton.

The rules committee

The special committee of seven senators drafting the rules has been highly guarded over the process. All lawmakers either declined to comment or did not respond to messages from The Dallas Morning News.

They are led by Sen. Brian Birdwell, R-Granbury. Birdwell is a retired lieutenant colonel in the U.S. Army and survived the Sept. 11, 2001, attack on the Pentagon and was critically injured with burns over 60% of his body.

Birdwell’s office did not respond to messages seeking comment about the precedents guiding the rulemaking process.

The plan is to release the draft rules to all senators simultaneously Tuesday morning in hard copy only, Sen. Sarah Eckhardt, D-Austin, said. The Senate will come into session at 11 a.m., where the 31-member chamber is expected to debate and then vote on the rules.

They will have little precedent in Texas to guide them. The last elected official impeached and tried in the Senate was a South Texas district judge in 1975. Before that, Gov. James “Pa” Ferguson was impeached and tried in 1917, famously resigning just before the Senate threw him out of office.

In each of those cases, witnesses testified in trials that took days to conclude.

The lieutenant governor presided over the trial in a quasi-judicial role. But the senators retained the true power during the preceding with not only the power of jurors to convict the accused but also the ability to vote on procedural objections and the question witnesses.

Texas impeachment proceedings have occurred in the public with the press permitted on the Senate floor during the 1975 impeachment of O.P. Carrillo. Senators retained the ability to go into a closed session at any time on a majority vote, but could not take any action outside of the public’s view.

Paxton would be tossed from office if lawmakers convict him on any article of impeachment. Senators likely will vote on each article individually, with a two-thirds majority required to convict. If convicted, they would then decide whether to permanently bar Paxton from ever holding office again.