If political and legal junkies are looking forward to a cinematic resolution to Ken Paxton’s impeachment, they might want to hang on to their popcorn. Yes, the selection of Dick DeGuerin and Rusty Hardin for the prosecution and Tony Buzbee and Dan Cogdell for the defense promises legal pyrotechnics, but it may just be that our Teflon-armored state attorney general returns for another season.
Why would that be? To a great many folks inside and outside of Texas, the likelihood of ejecting the state’s highest-ranking law enforcement official—one who has been under indictment for felony securities fraud for eight years, whose philandering has yet to be contested, and whose once deeply loyal top employees have urged his removal for soliciting bribes—would seem to have pretty good odds. But that’s only if you take political campaign contributions and fear of primary challenges out of the calculus.
The numbers in the Senate are simple: of the 31 members of the chamber, 19 are Republicans and 12 are Democrats. Removing Paxton from office will require a two-thirds majority, or 21 votes. Assuming all Democrats vote as a block—as seasoned observers believe they will—that leaves the anti-Paxton forces scrounging for 9 Republican votes to send the AG packing. When I asked a longtime Capitol gadfly over the phone about the likelihood of that scenario, I could picture him rolling his eyes: “No way you get to nine,” he insisted. “Not a chance.”
Indeed, the idea that state senators might display the bravery of Spartacus, or even of Texas House members, strains credulity among many Capitol insiders. For one, the 3 percent of Texans who decide Republican primaries are far to the right of most adults in the state, and intensely loyal to Paxton, who cruised to reelection last year despite challenges from two qualified conservative opponents as well as the banana peel–slipping Congressman Louie Gohmert. Add to that the powerful West Texas oil and gas megadonors—Tim Dunn and the Wilks brothers, Dan and Farris—who will lavishly fund those who vote to acquit Paxton, and it seems unlikely there will be nine flippable Republican senators, even as 60 out of the 85 Republicans in the House voted for impeachment. (The bill for defiance in the lower chamber came due almost immediately: those who watched the near-four-hour floor debate on May 27 might recall that one of the House impeachment managers, Charlie Geren, a Fort Worth Republican, twice stated that members were being threatened with retaliation, even directly from Paxton.)
Then too, DeGuerin and Hardin, so adept at picking sympathetic jurors, won’t be able to capitalize on those skills here. Their “jury” will be made up of the nine senators who might possibly vote to impeach. They have little to nothing in common with their legislative counterparts in the House. Republicans in the House had safety in numbers, and the membership is relatively diverse; the Senate Republican caucus, in contrast, is smaller, mostly white, mostly male, and firmly under the control of Lieutenant Governor Dan Patrick. His punishments and rewards are handed out routinely to Democrats and Republicans alike. No one in Texas politics is feared more, and few senators dare to cross him. Patrick has not spoken publicly in favor of Paxton, but the fact that the attorney general owes him repayment of $125,000 in campaign loans is one of several obvious conflicts of interest that will affect the outcome of Paxton’s trial in the Senate. Another such conflict is that Paxton’s wife, Angela, serves as a member of that body, and has now said she will participate in the trial, “because the Constitution demands it and because my constituents deserve it.”
So what is the narrow path to victory for the anti-Paxton forces? The first key turning point in the trial will be the setting of the rules for the impeachment: what evidence will be admissible and what will not. The outcome of the trial could be determined today by a committee appointed by Patrick, who will also be serving as the judge of the proceedings. The more damning evidence allowed—say, from witness depositions that currently remain private—the more embarrassing a vote to keep Paxton in office could become. The attorney general’s counsel recently requested a “summary procedure” asking that only the articles of impeachment and the evidence presented to the House would be used in the trial, thus limiting the introduction of still- more-damning information about Paxton. The prosecutors described this move as an “alarming public request for a sham trial.” Added Dick DeGuerin, “The ‘summary procedure’ Buzbee touts is nothing but a way to sweep it under the rug. Texans are entitled to know what the evidence is.”
Then there’s the question of who will win a brewing, brass-knuckled power struggle within the Republican Party. The Dunn-and-Wilks faction has come down on the pro-Paxton side. But the powerful Texans for Lawsuit Reform, a pro-business group that looks politically moderate only in comparison to its further-right counterparts, is not fans of the attorney general. Tony Buzbee has alleged a TLR-driven conspiracy against Paxton. (Buzbee claims TLR is out for revenge after investing $3.1 million in Eva Guzman’s failed bid against Paxton for AG last year. Richard Weekley, TLR’s senior chairman and a commercial real estate mogul, personally threw in $1.1 million.) A Paxton reinstatement would not only diminish the power of TLR but further weaken an already weakened business community in favor of the religious right.
The fight between these Republican factions mirrors the GOP civil war that has broken out nationally between Trump loyalists and those who prefer a more-electable nominee who would be less likely to drag down every other Republican on the ticket. Paxton has been a longtime supporter of the former president, bringing lawsuit after lawsuit against the Biden administration, including one seeking to overturn the 2020 election results in four battleground states. That he has lost those suits has not mattered to his voters and his supporters. Whatever his misdeeds, Paxton is seen by many Republicans as Horatius at the bridge, protecting them from an invading army of trans people, gay people, people who demand reproductive rights, people of color, and people who think the story of slavery should be included in high school history textbooks. The prosecution will need to find staunch right-wingers to make the case against Paxton, to counterbalance pressure from the MAGA side to exonerate him.
One wild card in the impeachment fight is Austin real estate mogul Nate Paul, now charged by federal authorities with eight felony counts of lying to financial institutions, including one count related to Paxton. Paul will be arraigned on June 26; his attorney has declared he will enter a plea of not guilty. Meanwhile, Buzbee has stated that the charges against Paul have “nothing whatsoever” to do with his client. Maybe, but it’s also possible that Paul could testify against the AG to save himself, meaning that if the Texas Senate doesn’t vote to remove Paxton from office, the feds could step in with an indictment to finish the job.
Currently, those prosecuting Paxton are airing in public as much soiled laundry as possible. That tactic seems to be working, so far, for those who are prosecuting Donald Trump. But Trump faces juries of his peers in Florida and New York—juries that are a far cry from the Texas Senate.
Correction, June 22, 2023: An earlier version of this story reported that Texans for Lawsuit Reform had been lobbying senators for impeachment, which was an inaccurate statement. The claim is denied by TLR. We apologize for this error.