As we move close to the historic impeachment trial of the state’s top prosecutor, a major question for those involved is whether the proceedings Texas Attorney General Ken Paxton faces are criminal or civil.
A criminal designation would have major impact on Paxton’s trial and a legal filing made public Friday indicated Paxton and the House managers prosecuting him are at odds over the issue. Declaring it a criminal trial would afford Paxton the same legal protections of a defendant facing jail time.
The fundamental nature of the impeachment trial has emerged as possibly the most important legal contention between Paxton and House managers leading up to his Sept. 5 impeachment trial.
Paxton, the first statewide elected official impeached in Texas in more than 100 years, has filed multiple motions arguing his upcoming impeachment trial is a criminal proceeding, a designation that would prevent prosecutors from calling him to the stand and could lead to several articles of impeachment against him being quashed.
In pretrial court documents published Friday, the House managers representing the chamber that voted overwhelmingly to impeach the attorney general gave a terse reply: “Mr. Paxton is wrong.
Paxton’s filings show he has some legal precedent on his side. They include references to the 1917 impeachment trial of Gov. James “Pa” Ferguson, the last statewide official impeached.
“In Texas, an impeachment trial is legally considered a criminal proceeding,” Paxton argues in a motion to prevent prosecutors from calling him to the stand.
“Although it may proceed in part on allegations broader than those recognized under Texas’s criminal laws, our Constitution recognizes that an impeachment does not seek civil redress on behalf of a plaintiff; it is an action by the State to punish an alleged wrongdoer.”
However, some impeachment experts disagree with Paxton’s characterization of an impeachment trial as a criminal proceeding.
“It plainly is not a criminal proceeding,” said Frank O. Bowman III, a law professor at the University of Missouri who studies American impeachment.
University of North Carolina at Chapel Hill’s Michael Gerhardt said the crux of the issue is whether a conviction would result in imprisonment. In Texas law, like federal law, the penalty for being convicted under articles of impeachment is removal from office and a possible disqualification from serving in the future.
“The sanctions that result from a conviction in Texas do not include imprisonment or execution,” said Gerhardt, an impeachment expert and law professor. “No criminal punishments, therefore, it’s not a criminal proceeding.”
Gerhardt said impeachment trials fall in a gray area outside of criminal and civil trials. He characterized them as political.
“This is really a political proceeding in which political authorities are exercising this unique power to punish other political figures,” he said.
“It’s not meant to be pejorative, it’s meant to be descriptive of the unique aspects of the proceeding,” he added.
Patrick likely will not make a ruling until Sept. 5, when the trial begins. A committee that created rules for the trial will also review the issue and make a recommendation by Aug. 28. Patrick could also choose to ask for a Senate vote on the issue.
It is unclear how any would rule, but the Senate has shown in at least one instance its intention to treat Paxton’s impeachment as a criminal matter. In impeachment rules adopted in June, the Senate set the criminal standard for the burden of proof for conviction to “beyond a reasonable doubt.”
The University of Missouri’s Bowman said the threshold for conviction does not necessarily make it a criminal trial. The bar for conviction will remain a decision each senator will make on their own, he said.
“The real truth of it is that every senator is the judge of what the burden of proof should be,” he said.
I guess I must have some lawyerly instincts, because the “not really criminal or civil” notion occurred to me as well. The key question here is whether Paxton can be made to testify. Of course, Paxton via his attorneys have been screaming about how he was silenced and never given a chance to speak while the House was doing its thing, and here he is now saying “you can’t make me talk”. How much of that cake do you have left after scarfing it all down? Lawyers gotta do what lawyers gotta do, and I for one would not want to put a guy like that on the stand. It doesn’t mean we can’t mock him for it.
The House prosecutors’ response is here. As with motion-to-dismiss-a-thon, the real main character here is Dan Patrick. He has a huge impact on these proceedings, and I’m sure he knows it. Like I said before, we’ll know quickly if this is going to be drawn out or over before we know it. Until then, speculate away.