Suspended Attorney General Ken Paxton will answer to 16 of 20 articles of impeachment at a trial to begin Sept. 5, the Texas Senate said Wednesday night after spending about 20 hours drafting the trial rules in private.
Paxton’s wife, Sen. Angela Paxton, R-McKinney, can attend, but she will not participate in deliberations or closed sessions when the Senate sits as a court of impeachment, according to the trial rules adopted without discussion Wednesday on a 25-3 vote.
The three votes in opposition included Angela Paxton and Sens. Sarah Eckhardt, D-Austin, and Bob Hall, R-Edgewood.
The trial, which will be held in public, will begin with opening statements. Lawyers for the House impeachment managers will present evidence first, with cross-examination of witnesses allowed. Paxton’s lawyers will be allowed to present evidence and witnesses as well.
A list of witnesses, who under the rules can be compelled to appear, must be filed by Aug. 22 and made available to the opposing side.
Each article of impeachment will be voted on separately by senators. If an article is accepted by two-thirds of the present senators, it will be entered as a conviction. If it fails to reach two-thirds, it will be counted as an acquittal. If any article of impeachment is entered as a conviction, the House board of managers can ask for the judgment to disqualify Paxton from office, which would also require approval by two-thirds of the present senators.
A separate resolution, adopted 28-0, notified Paxton that he must appear in person in the Senate chamber “to answer the said charges of impeachment.”
After the votes, Lt. Gov. Dan Patrick, who presides over the Senate, told senators, their staff and others involved in the court of impeachment to refrain from discussing the merits of the case with others, including Paxton, his lawyers and lawyers for the House impeachment managers.
A separate rule prohibits senators from discussing the case with one another as well, he said.
“No member of the court, or the presiding officer of the court, shall advocate a position on the merits of the proceedings to other members of the court or the presiding officer of the court until such a time as deliberations shall begin,” Patrick said.
A major question settled by the Senate rules was the determination that Angela Paxton has a conflict of interest in her husband’s trial. She can sit in on the impeachment trial because the Texas Constitution requires all members to do so, but she will not be allowed to “vote on any matter, motion, or question, or participate in closed sessions or deliberations.”
The Trib story doesn’t address the question of whether Sen. Angela Paxton’s presence will be counted in the total number of Senators, which is important in that it affects the threshold to convict: If there are 31 Senators present, it takes 21 votes to convict, but if there are only 30 it takes 20 to convict. The Chron does discuss this.
Senators approved the rules on a 25-3 vote, with Angela Paxton among the trio of opposition votes. Her chief of staff did not immediately respond to a request for comment, though she appeared ready to vote in the trial, saying in a statement this week that “my constituents deserve it.”
Under the rules, Angela Paxton will be present for the trial but is otherwise barred from participating in private deliberations or voting on any matter. Her recusal does not appear to lower the threshold of 21 votes — two-thirds of the 31-member Senate — required to permanently remove Ken Paxton from office or disqualify him from holding future office.
The rules also specify that witnesses cannot be present to hear other witness testimony, potentially complicating things if Angela Paxton is called to testify.
Reform Austin came to the same conclusion. I don’t quite understand the point of this, since as this stands she may as well be allowed to cast the vote to acquit that we all know she intends to do. With or without her, there needs to be at least nine Republicans to convict.
I should note that the four counts that relate to the state securities fraud charges against Paxton were excluded from the trial – “put in abeyance” is the technical term. The Senate may deal with them later, or they could be dismissed by majority vote. I’m not too worked up about that, there are plenty of other charges and it’s the whistleblower stuff that led to all this anyway.
At least now we know where we stand, and when we can expect things to happen. The defense, the prosecutors, and Rep. Andrew Murr all seem to be fine with the rules, so there’s that. Sen. Sarah Eckhardt outlined her reasons for voting No to the rules in the Senate journal, with the concise reason that “the unprecedented ability of the defense to win a dismissal of an Article of Impeachment by a simple majority vote” is “most disturbing”. Impeachment trial lawyer Ross Garber and Trib reporter Patrick Svitek have their takes, and Socratic Gadfly and the Press have more.
UPDATE: Two more Trib stories, about how the Senate rules gave the impeachment managers most of what they wanted but still provided a boost for the defense.