Paxton’s Lawyers Take Legal Action Against Impeachment Prosecutors

Texas Attorney General Ken Paxton speaks at the Conservative Political Action Conference in Dallas, Texas, on Aug. 5, 2022. (Bobby Sanchez/The Epoch Times)

Attorneys representing Texas Attorney General Ken Paxton have taken legal action against several Texas House Republicans and two Houston attorneys prosecuting Paxton, demanding they stop covertly contacting witnesses related to what they say is a meritless impeachment proceeding.

The letter (pdf) was sent on June 8 to Texas House Speaker Dade Phelan, the co-chairs of the Texas House General Investigating Committee Reps. Andrew Murr (R) and Ann Johnson (D), and to Houston attorneys Rusty Hardin and Dick DeGuerin.

Paxton’s attorneys accused the recipients of the letter and their agents of “improper contact” with potential witnesses, including employees of the Texas Attorney General’s Office.

“There can be no doubt that your efforts to have ex parte contacts with witnesses are wholly improper,” Paxton’s attorneys wrote.

Ex parte contacts with witnesses refer to direct communications between one party—or their legal representatives—and a witness, without the knowledge, presence, or consent of the other parties involved in a legal dispute.

‘No Authority’

While rules about ex parte contacts vary from state to state, such contacts are generally restricted in order to ensure a fair trial.

Paxton was impeached by Texas’ GOP-led House of Representatives on articles including bribery and abuse of public trust, triggering his suspension from office pending the outcome of a trial in the state Senate.

His attorneys—Judd Stone and Christopher Hilton from Stone Hilton PLLC—argued in the letter that prosecutors have no right to initiate any contacts with potential witnesses until the state Senate adopts rules for Paxton’s impeachment trial.

“You have no authority to request documents, approach witnesses, or do anything else regarding this matter until the Senate establishes the rules for this proceeding,” they wrote, citing the Texas Government Code’s relevant provisions/

Paxton’s lawyers, citing legal precedent, argued that by taking any actions without express legal authority, the prosecutors could face legal liability.

While the attorneys acknowledged that the prosecutors could rely on the Public Information Act to request information, they argued that the prosecutors would then have no right to obtain confidential or privileged information in this way as they would be acting in their personal capacity.

Another possibility is that prosecutors could submit such requests in their legislative capacity. But then, Paxton’s lawyers argued, they could only use this information for “legislative purposes” and not for the purpose of an impeachment.

‘Clandestine Fact-Gathering’

Paxton’s attorneys also argued that, even though he’s been suspended, Paxton remains the duly elected Attorney General and so his staff from his office are bound by privileges that attach to the duly elected officer.

“Your clandestine fact-gathering without the opportunity for the Attorney General’s participation means that the Senate’s rules and process are being undermined before they have even been written,” Paxton’s attorneys wrote.

They also took the opportunity to denounce Paxton’s impeachment as having been “concocted behind closed doors and without any public scrutiny, due process, or presentation of evidence that would in any way detract from your Machiavellian political objective.”

The addressees of the letter were not immediately available for comment, but one of the prosecutors told The Center Square that their actions are part of routine preparation for Paxton’s impeachment trial.

“We are preparing for trial in the Senate, as any lawyers should do,” DeGuerin told the outlet.

The impeachment trial rules are expected to be announced by the Texas Senate later in June.

When the Texas Senate voted 121-23 to impeach Paxton, he decried the move as political.

“The ugly spectacle in the Texas House today confirmed the outrageous impeachment plot against me was never meant to be fair or just,” Paxton said. “It was a politically motivated sham from the beginning.”

Texas Attorney General Ken Paxton speaks in Washington on Jan. 6, 2021. (Jacquelyn Martin/AP Photo)

Background

Paxton had been under FBI investigation for years over accusations he used his office to help a donor, Austin real estate developer Nate Paul.

In October 2020, a number of top deputies in Paxton’s agency told the FBI that they believed the attorney general had used his office to help Paul, who had donated $25,000 to Paxton’s reelection campaign in 2018.

All of the whistleblowers were fired or resigned, but the allegations led to a federal investigation into Paxton.

The Department of Justice later took over the investigation but no federal charges have been filed against Paxton or Paul.

A half dozen or so former OAG employees filed complaints against or sued Paxton for wrongful dismissal, claiming he ousted them in retaliation after they reported him to federal authorities for alleged crimes he committed in assisting Paul.

The allegations relating to Paul were a major part of the 20 articles of impeachment filed recently against Paxton, including bribery and abuse of public trust.

At the time, Paxton broadly denied the claims.

“Facts matter. As time goes on people will see the truth of what we’re saying, that these people, some of them, had legitimate issues unrelated to me that ended up resulting in their termination,” Paxton said at the time.

After about a year of investigating the whistleblowers’ claims, Paxton’s office issued a report that refuted the former employees’ claims.

More recently, an outside law firm hired by Paxton’s office to carry out a follow-up investigation found that Paxton didn’t break any laws or violate office procedure when he fired several staffers who later accused him of wrongful dismissal and retaliation.

A report (pdf) recently released by the outside law firm, Lewis Brisbois Bisgaard & Smith LLP, found that there was “significant evidence to show the actions of the OAG toward the Complainants were based on legitimate, non-retaliatory, business grounds.”

The law firm’s findings dovetail with the conclusions of an earlier OAG investigation (pdf) that similarly refuted each of the former employees’ and political appointees’ allegations and called for a deeper probe into the matter.

Paxton is only the third sitting official in Texas’s nearly 200-year history to have been impeached.

Articles of Impeachment

The whistleblowers accused Paxton of improperly issuing legal opinions to benefit Paul and had previously reached a tentative settlement agreement with Paxton for $3.3 million, which prompted the Texas House committee investigation.

“Specifically, Paxton benefited from Nate Paul’s employment of a woman with whom Paxton was having an extramarital affair. Paul received favorable legal assistance from, or specialized access to, the office of the attorney general,” the articles of impeachment state.

The articles also accuse Paxton of having benefited from Paul providing renovations to Paxton’s home in exchange for “favorable legal assistance” and “specialized access” to the office of the attorney general.

Other charges date back to Paxton’s pending 2015 felony securities fraud case, shortly after he won his first attorney general election, and include making false statements to state investigators.

“After Paxton was elected attorney general, Paxton was indicted by a Collin County grand jury for engaging in fraud or fraudulent practices in violation of The Securities Act (Title 12, Government Code),” the impeachment articles state.

“Paxton then concealed the facts underlying his criminal charges from voters by causing a protracted delay of the trial, which deprived the electorate of its opportunity to make an informed decision when voting for attorney general.”

Paxton, a longtime ally of former President Donald Trump, was reelected to a third term as attorney general in November.

He has denied the charges and said the impeachment vote was based on “totally false claims.”

Trump, too, denounced Paxton’s impeachment.

“The RINO [Republican In Name Only] Speaker of the House of Texas, Dade Phelan, who is barely a Republican at all and failed the test on voter integrity, wants to impeach one of the most hard-working and effective Attorney Generals in the United States, Ken Paxton, who just won reelection with a large number of American Patriots strongly voting for him,” Trump stated on Truth Social recently.

“You would think that any issue would have been fully adjudicated by the voters of Texas, especially when that vote was so conclusive,” the former president added.

Katabella Roberts contributed to this report.