Analysis: When the Prosecution is a Candidate's Foil

A political candidate’s troubles are supposed to be a gold mine for the opposition, but that has not been the case with state Sen. Ken Paxton, the Republican nominee for attorney general.

His easy win in the Republican primary runoff in May was either a bafflement or a relief, depending on whether you were rooting for Paxton or his rival, state Rep. Dan Branch, of Dallas.

For Branch, it looked like a perfect setup. He’s a veteran legislator, a partner in a well-known Texas law firm, a member of the establishment.

And Paxton was in trouble.

The job in question is attorney general, the functional head of the state’s in-house law firm. Candidates like to talk about it as the top law enforcement position in the state — a bit of a stretch, since most criminal cases fall to local district and county attorneys, but a useful and effective exaggeration in a campaign.

Paxton committed a foul by failing to tell his clients and the State Securities Board about his relationship with a securities investment adviser. He looked into it, admitted the wrongdoing, amended some reports and paid a fine, then left Branch, who hoped to benefit from the revelations and admissions, in the dust. Branch received 36.6 percent of the vote to Paxton’s 63.4 percent.

That result was a vindication. Republican voters ignored the blot on Paxton’s résumé and looked instead to his conservative credentials, including a near endorsement from U.S. Sen. Ted Cruz, R-Texas. Ideology trumped biography, and it will take some new twist to get voters to reconsider.

Now Sam Houston, the Democratic nominee (no relation to the 19th-century soldier and politician), lies in wait. He starts from a weaker position, with less money, no experience in state office and no natural political base. It makes sense that Paxton, in a competitive primary and runoff, had to raise money and Houston did not. Experience is a mixed bag at a time when voters find incumbency suspect.

This time, the Democrats are trying to stir the pot, suggesting that prosecutors are looking at Paxton’s file and could act at any time. They are hoping to succeed where Branch failed, but an investigation or an indictment — especially in Travis County, that blue Democratic smudge on the bright red Republican map of Texas — could bounce the wrong way.

That happened when Kay Bailey Hutchison, a Republican, was accused of using her state office for political work. The state treasurer at the time, Hutchison said the charges resulted from an overzealous Democratic prosecutor trying to ruin her political career. That ended with a directed verdict in her favor just after she was sworn in as a U.S. senator — an election victory made easier by her success against what was seen as a political prosecution.

Tom DeLay ran the same play when he was indicted a decade later, contending that Democrats were trying to gain through criminal prosecution a victory they had been denied at the polls. The legal fight, still underway more than 10 years later, cost DeLay his position as majority leader of the U.S. House. But the Republican majority he helped elect to the Texas House drew political maps that helped tilt the House to the Republicans. It was a win for his party, if not for DeLay.

Most prosecutors try to stay out of politically charged cases in the weeks before an election. Crimes can be prosecuted after the voters are done, and making a criminal accusation while they are deciding how to vote looks like dirty pool.

That said, an investigation three months from a November election is arguably less tainted than one that is announced in, say, October. You can understand why Democrats might be holding out hope of more questions about Paxton’s law practice.

They should be careful what they wish for. Official interest in the case could change the subject. Instead of talking about his securities commissions, Paxton could talk about Austin Democrats in the district attorney’s office trying to win an election with a political prosecution.

It has worked before.