The hits keep on coming…
So, just how transparent is this Senate trial going to be?
Lt. Gov. Dan Patrick has promised maximum transparency in the impeachment trial for suspended Attorney General Ken Paxton, but trial rules recently adopted by the Texas Senate came after an opaque process — and provide for plenty of secrecy going forward.
Any pretrial motions, including requests from Paxton’s legal team to toss out articles of impeachment, will be kept confidential.
A special committee of senators will review each pretrial motion behind closed doors and issue written recommendations for how it should be addressed, but those recommendations are to remain confidential as well.
When senators vote on pretrial matters — or cast the deciding votes on whether to convict or acquit on each article of impeachment — there can be no debate or comments beyond “yea” or “nay.”
Even the witness list that each side must file before Aug. 22 will be kept from the public.
After all the evidence is presented and closing arguments are made, senators will meet in private to deliberate like any jury in a civil or criminal trial.
Finally, the rules require the trial’s presiding officer — at this point it is Patrick, though he can appoint a replacement — to issue a gag order “as soon as practicable” after adoption of the rules. The rules do not state who would be barred from speaking or what they would be prohibited from speaking about.
The Senate approved the rules without public debate Wednesday night, following two days of closed-door deliberations over them. That came after a rule-making committee worked in secret for three weeks, drafting proposed rules without telling the public when and where they were meeting.
“Just comparing this process to other processes [in state government], it hasn’t been transparent,” said Adrian Shelley, executive director of Public Citizen Texas, an Austin-based government watchdog group. “Not even knowing when the committee is meeting is pretty disappointing.”
Even if the process and rules are similar to past impeachment trials or similar legal proceedings, Patrick had promised a high level of transparency.
“Let me just say this: If there is a trial — if there is — there will be total transparency and it will be handled properly,” Patrick said in a radio interview Monday.
See here for the background. Insufficient transparency was among the stated reasons why Sen. Sarah Eckhardt voted against the rules package. I don’t know right now how big a deal this will be. It’s a reason to be at least a little skeptical, if not suspicious, but how correct one’s level of skepticism/suspicion is won’t be known until after, possibly well after, when any further secrets hopefully come to light. This bit at the end, about the portion of the rules dealing with recusals, illustrates what I mean:
Sen. Bryan Hughes, R-Mineola, is alluded to in the articles of impeachment as a “straw requestor” for an attorney general’s office legal opinion that Ken Paxton sought to help a campaign donor. And Sen. Donna Campbell, R-New Braunfels, employed a staffer who was reportedly involved in an extramarital relationship with Paxton that is mentioned in the articles.
The opaque rule-making process means the public does not know if additional recusals were contemplated.
“Not knowing whether that was discussed,” Shelley said, “it undermines confidence in the process.”
First, I will note that while we had heard about this staff arrangement for Ken Paxton’s alleged mistress before, this is the first time I’ve seen whose office it was in which she was employed. If it turns out there were other potential conflicts that were discussed in private but not voted on in the rules, that will be bad. If not, if we basically know all that we need to know, then there will be less room for complaint. How confident are you about that possible outcome?
One reason for that may be that there are so many political considerations for Senators in the trial. Well, for Republican Senators, anyway.
After being picked last month to prosecute Attorney General Ken Paxton’s impeachment case, attorneys Dick DeGuerin and Rusty Hardin projected an air of objectivity, previewing a trial that would “rise above party.”
Days later, Paxton defense attorney Dan Cogdell called that “nonsense.”
“Last I checked, all the members of the Senate are politicians,” Cogdell said, likening the notion that politics wasn’t at play to“the fellow that’s trying to convince his wife that he goes to the strip joint for the food.”
With the historic impeachment trial fast approaching, Republican state senators face a complex set of political factors that go far beyond their opinion on the merits of the case. Though they have promised to give Paxton a fair, impartial shake, members are also contending with personal ties to the now-suspended attorney general, as well as shared campaign donors and future elections in which primary voters play an outsized role.
“This is the most consequential vote that every member of the Senate will take this session, and probably in their political careers,” said Brandon Rottinghaus, a political science professor at the University of Houston. “They’ve got one eye on the impeachment articles, and one eye on polling back home. It’s a challenge for them, because Paxton is still very popular among the core of the Republican Party that votes in Republican primaries.”
Rules adopted by the Senate earlier this week bar senators from commenting publicly on the Sept. 5 trial or challenging procedural rulings from Lt. Gov. Dan Patrick. This gives Patrick, who’s known as a master tactician, “extensive power” over the proceedings, tweeted Ross Garber, an attorney who has defended statewide officials facing impeachment in other states.
The rules will minimize blowback for GOP senators, shielding them from public debates or votes on controversial motions, Rottinghaus said.
“The way they set it up was basically to protect the members – they can’t say anything, they can’t engage in conversations outside of the immediate jury pool, and they can read their justification into the record after the fact,” Rottinghaus said.
Complicating the matter for Republicans who are leaning toward conviction is the threat of drawing a primary challenge as a result.
Paxton, a far-right conservative allied with many prominent figures in Texas’ right-wing circles, has had bulletproof popularity among Republican voters, twice winning re-election amid mounting legal issues.
GOP voters appear closely divided on the impeachment itself: just under a third said it was justified, while another 30 percent said it was not in a recent statewide poll from the Texas Politics Project at the University of Texas at Austin. The remaining 39 percent answered “don’t know/no opinion.”
Paxton’s approval among Republicans dipped sharply in the same poll, from 65 percent in April to 51 percent this month.
Still, Rottinghaus said, voting against Paxton is a far riskier move for Republican senators, especially with most of their districts redrawn in 2021 to fortify GOP control. Under the new maps, most GOP senators face little threat of losing to a Democrat in the general election — leaving the primary as their only real hurdle.
I have no idea how the various Republican Senators will act, though my two assumptions have been that they will act in what they believe is their own best interest, and I expect Paxton to survive, though it will be close. There continues to be a nice bit of division among the GOPers over this, as noted in that poll, which to me is the most important thing. Let them be mad at each other forever over this, I say.
Of interest to me is the unstated assumption that Dems will vote as a bloc to convict. I think this is the most likely outcome, on the grounds that we pretty much already know enough to convict him, no one has actually offered a defense of his actions so far – it’s all deflections, hurt feelings, and whataboutism – and we’re all just going through these motions to give Republicans the cover they need to eject him from their corpus. But maybe I’m wrong, and maybe there are some meritorious arguments that Messrs. Buzbee and Cogdell will raise, and maybe that will be enough to sway one or more Dems to acquit, on some number of the charges. (Side note: I assume conviction on any one of the charges is enough to bounce Paxton from office and that he has to beat them all to stay in place; if I’m wrong about that, please say so.) I don’t think any Dem Senator who can give a reasoned argument for why they voted to acquit and not some dumbshit Harold Dutton reason will be fine. Certainly, a couple of acquittal votes combined with him going down in the end ought to do no one any harm. But again, I remain open to being surprised.
Finally, on a side note:
A Texas real estate developer at the center of Attorney General Ken Paxton’s impeachment has pleaded not guilty to charges of making false statements to banks that loaned him more than $170 million.
Nate Paul waived his scheduled arraignment before a U.S. district judge in Austin, according to court documents posted Friday.
Paul figures heavily in 20 articles of impeachment filed against Texas’ top law enforcement officer. Paxton is accused of abusing his power and bribery in order to help Paul, who gave the Republican a $25,000 campaign donation in 2018.
There is no reference to Paxton in Paul’s indictment, which accuses the developer of making false statements to multiple banks in 2017 and 2018. But one of the banks later received a subpoena, issued in person, by an attorney Paxton hired as an “outside independent prosecutor” to pursue complaints Paul made after the FBI raided the businessman’s offices.
The good news about there being so much Paxton news is that I can stick stuff like this onto the end of a roundup post. It’s not worth its own post – there’s just nothing of interest there other than it happened – but it’s worth mentioning in passing. So there you have it.