Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
As a Texas Senate committee works in secret to devise rules for an upcoming impeachment trial, allies for suspended Attorney General Ken Paxton are lobbying hard for the ability to dismiss the allegations against Paxton without the need for a trial.
House impeachment managers are pushing back, warning the committee against adopting rules that would pave the way for a “sham trial.”
The seven-member committee is expected to issue its recommendations to the full Senate on Tuesday. Because the panel has wide latitude in crafting those rules, many observers expect its work to be critical to Paxton’s chances of saving his job in a trial that is expected to start no later than Aug. 28.
Paxton’s lead attorney, Tony Buzbee, has been on a media tour in recent days, arguing that the House impeachment process was so flawed that the Senate should create rules that allow members to effectively dismiss the case pretrial.
“We’re told this is supposed to be like a trial,” Buzbee told Dallas radio host Mark Davis on Thursday. “Well, in every court across the United States, if the case that’s brought is so terribly weak, flimsy, it shouldn’t be in court, there should be a mechanism at the beginning to throw it out. So I’m suggesting that that should exist here.”
Buzbee has called for rules that allows a summary proceeding, or a speedy procedure by which senators could decide the case based on the evidence so far. Some county Republican parties have passed resolutions that go further, saying the Senate should not even consider rules and return the 20 articles of impeachment to the House.
On Thursday, the House board of impeachment managers sent a memo to the Senate committee that served as a response to Buzbee’s comments. The memo encouraged the committee to take guidance from the “tried-and-true rules of Texas trial procedure and evidence” and offered 17 examples of rules used in past impeachment trials for District Judge O.P. Carrillo in the 1970s and Gov. James E. Ferguson in 1917.
“We fully appreciate that progress on the proposed rules is at or nearing completion; however, given Mr. Paxton’s counsel’s alarming public request for a sham trial, we wish to share with the committee the findings of our research of the rules that were used in the impeachment trials of Carrillo and Ferguson,” the memo said.
As for the county GOP resolutions, the top impeachment manager, Republican Rep. Andrew Murr of Junction, responded in a Dallas Morning News op-ed Friday, noting the resolutions “focus entirely on the process” rather than the facts of the case. He said he was perplexed by Paxton supporters calling for no trial at all, saying it was the “only way to reach a resolution that is fair to Paxton.”
One of the 17 rules that the managers’ memo suggested addresses “the issue of when a Senate member is disqualified or subject to recusal.” The memo specifically cited state Sen. Angela Paxton, R-McKinney, the wife of the impeached attorney general.
Buzbee has said that decision is up to Angela Paxton. Texas GOP leaders have echoed that, but some have also nodded at the possibility of a rule addressing it.
“That will be up to her as well as the rules created by the Senate,” Gov. Greg Abbott told reporters Thursday.
The House voted 121-23 to impeach Paxton on May 27, alleging a yearslong pattern of misconduct and lawbreaking. The vote immediately led to Paxton’s temporary suspension from office, and Abbott appointed John Scott, the former Texas secretary of state, as interim attorney general.
A two-thirds vote in the Senate is required to permanently remove Paxton from office. If all 31 members vote and all 12 Democrats support removal, that would require nine of 19 Republicans to cross over.
An opaque committee
The rule-making process was created by a resolution that the Senate passed in the final hours of its regular session. Passed unanimously, the resolution allowed the president of the Senate, Lt. Gov. Dan Patrick, to appoint a seven-member committee to “prepare and present” rules for consideration to the full Senate on Tuesday, June 20.
Patrick named five Republicans and two Democrats to the committee, picking an ally, Republican Sen. Brian Birdwell of Granbury, as its chair.
The resolution says the committee “shall meet subject to the call of the chair and is authorized to meet in closed session for purposes of deliberation.”
Beyond that, there is little known about the committee and its deliberations. Birdwell’s office has not responded to a request for comment, and the committee is not mentioned on the official Senate website.
The resolution does not explicitly say the Senate has to vote on the rules Tuesday. But once the rules are approved, the resolution allows Patrick to set a trial date no later than Aug. 28.
Paxton’s legal team takes the offensive
Paxton’s side has been the most aggressive in trying to influence the rules. Buzbee has warned that if the committee does not create a possible pretrial off-ramp, the Senate could be in for a painstaking process featuring more than 60 witnesses, thousands of pages of documents and a time frame that could last up to a year.
Two other lawyers defending Paxton — Chris Hilton and Judd Stone — have personally appealed to Patrick as the rules were being crafted. They sent a letter to the lieutenant governor Saturday asking him to put a stop to investigative actions the House has taken post-impeachment, arguing the House “has no authority to do anything regarding the impeachment proceedings until the Senate establishes the rules.”
Hilton and Stone, who recently left positions with the attorney general’s office, also said they were available to “answer any questions or provide the attorney general’s position on the appropriate rules for these proceedings, if desired.”
Patrick apparently did not respond, according to a letter Paxton’s attorneys sent a day later that repeated their request for intervention by the lieutenant governor.
Buzbee added Thursday that Paxton’s team has “asked to appear before the rules committee.”
Also Thursday, Paxton’s team sent reporters an email highlighting a Federalist article by prominent conservative attorney Harmeet Dhillon that urged the Senate to allow both sides to have input on the rules. Dhillon also suggested a number of rules herself, including the exclusion of live witnesses in favor of testimony by deposition.
Patrick has promised a fair trial but otherwise has largely declined to comment on the Senate’s preparations. He briefly waded in during a news conference Thursday in Dallas, denying that his previous campaign loans to Paxton compromised his neutrality to preside over the trial.
House impeachment managers push for transparency
The House has also been well aware of how important the rules could be. When Rusty Hardin and Dick DeGuerin were unveiled as the House’s top lawyers earlier this month, Hardin said he hoped for a “full, public hearing that allows both sides to present the evidence that allows the public and the world to know just what happened here.”
They have been quieter about the rules since then, but their Thursday memo made clear they did not want to cede the public debate to Buzbee.
Some of the 17 rules the memo suggested have to do with transparency. They say senators should be “required to deliberate in open session,” that proceedings should be “recorded, transcribed and frequently published” and that cameras should be allowed at the trial.
Other suggested rules have to do with witnesses — that they should be required to be under oath, for example — and parties’ entitlement to legal counsel.
The memo also pointed out that in the Ferguson trial, the House was allowed to adopt additional articles of impeachment beforehand.
Blake Brickman, an attorney general's office executive fired in 2020 after he and other agency leaders met with FBI agents to accuse Paxton of misconduct, said in a statement Friday that he hoped to testify in person at the trial. And he challenged Paxton do so as well.
“After the House impeachment vote, Paxton claimed he wants a ‘full accounting of the truth,’” Brickman said. “This begs the question: will Ken Paxton agree to testify on his own behalf? Or will Ken Paxton continue to be a coward and hide behind his lawyers and their bogus ‘process’ arguments?”
Go behind the headlines with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23. Join them to get their take on what’s next for Texas and the nation.