Lawyers for suspended Attorney General Ken Paxton requested Monday that all but one of 20 articles of impeachment be dismissed, arguing his removal would “override the will of the people” who elected him with knowledge of his alleged misconduct.
In a separate filing to the court of impeachment, Paxton’s team also requested that his trial before the Texas Senate exclude any evidence of “any alleged conduct” that occurred prior to January 2023, when his third term in office began.
The second filing — which comes as all parties are under a strict gag order barring most public comment on the proceedings and evidence — also blasted the House impeachment managers as “aggressive, reckless and misleading” with “little to no evidence whatsoever” to support their allegations against Paxton.
In their motion to dismiss, Paxton’s lawyers argued that almost all of the allegations outlined by House investigators were known to voters at the time of his most recent election, and that his impeachment would thus negate the will of Texas voters.
They also argued that Paxton’s impeachment would run afoul of the “prior-term doctrine,” which they said bars statewide officials from being impeached for conduct that predates their most recent election.
“With only a single exception, the articles (of impeachment) allege nothing that Texas voters have not heard from the Attorney General’s political opponents for years,” Paxton’s team wrote. “The alleged acts underlying 19 of the Articles took place before the Attorney General’s most recent election and were highly publicized.”
The unchallenged article against Paxton is related to the $3.3 million lawsuit settlement he reached with whistleblowers who were fired from his office after reporting Paxton to law enforcement for bribery and other alleged wrongdoing. The House’s investigation into Paxton began earlier this year, after he asked the Legislature to pay for the lawsuit settlement.
Paxton has previously argued that the “prior-term doctrine” bars his impeachment because a Texas constitutional provision prohibits officeholders from being “removed from office for an act the officer may have committed before the officer’s election to office.”
In the Monday filing, Paxton’s attorneys cited a series of cases in which the doctrine was argued, including the 1893 impeachment of Land Commissioner Colonel W.L. McGaughey and the 1917 impeachment of Gov. James “Pa” Ferguson, who unsuccessfully tried to use the doctrine to dismiss four of 21 impeachment articles he faced.
They also stated that they plan to show that most of the allegations against Paxton were “highly publicized not only at the time, but for years prior” to his 2022 election.
“Texas voters elected Attorney General Paxton despite those public allegations — so they have the last word,” Paxton’s lawyers wrote.
Some experts, including the Texas District and County Attorneys Association, have thrown cold water on Paxton’s claims about the doctrine — which is also known as the “forgiveness doctrine” — saying that it has historically been applied only to the removal of local officials.
“It does not appear there is any authority applying the ‘forgiveness’ doctrine to a state official like the AG,” the organization said in a May tweet.
See here for some background. We’re dealing with hundred-plus year-old precedent here, so who knows. Dan Patrick will rule on the motions, and a simple majority of the Senate can vote to dismiss any or all of these charges, so we ought to get a good feel for how this will go right out of the gate. Dan Patrick has been talking about a two or three week trial, but I assume that wouldn’t be the case if the bulk of the charges went away. Again, who knows.
Via the DMN, you can see the motions – one claims the bulk of his “alleged” corruption occurred before the last election and thus is off limits for impeachment, and the other asks for evidence of said corruption to be excluded, which is either a necessary complement or the fallback position, I’m not lawyerly enough to say. The prosecution has until August 15 to file its response, so we’ll see how they attack this. I can’t wait. TPR, Reform Austin, and the Press have more.