Las Vegas oddsmakers, so far, are not taking any bets on the likely removal from office of the impeached Texas attorney general. That may be because, as one Republican gadfly guesstimated, there’s a 99.9 percent chance that the infamous Ken Paxton will be back at work by the end of September. Why do so many Texas realpolitikers close to the Paxton case believe the fix is in? Largely because Paxton needs only eleven non-yes votes in the state Senate to win acquittal, and powerful campaign donors and operatives are applying pressure to the nineteen Republican members to make sure he gets that support. “The rule of law doesn’t matter to people anymore,” said one lawyer loosely affiliated with the case, wary of speaking for attribution because of the gag order Lieutenant Governor Dan Patrick has imposed on public statements by the parties to the case. “It’s all about staying in power.” Indeed, I heard the phrase “kabuki theater” used more than once to describe the upcoming trial.
Say what you will about Texas’s state senators, virtually all have mastered rudimentary math. To remove Paxton from office, two-thirds of the senators present—21 out of 31—must vote to convict. That means the prosecution needs the votes of all 12 Democrats and at least 9 Republicans. That is one tall order, given the widespread threats from Paxton supporters that anyone who votes against him will face a well-funded challenger in the next Republican primary. Most notable are the smoke signals emanating from a political action committee called Defend Texas Liberty, funded in large part by right-wing Midland oilman and Christian nationalist Tim Dunn, along with fracking billionaire and pastor Farris Wilks, of Cisco. The PAC’s leader, Jonathan Stickland, a pugnacious former state representative, tweeted that “there will be one helluva price to pay for voting w/ @DadePhelan & Dems” and that “a vote to impeach @KenPaxtonTX is a decision to have a primary.”
Another advantage for the AG is that his impeachment trial is not a traditional jury trial, with twelve jurors selected at random from a pool of eligible voters. In a normal trial, many members of the Senate would be disqualified for conflicts of interest, as would the presiding judge, Lieutenant Governor Dan Patrick. Senator Bryan Hughes, for instance, was drawn into Paxton’s efforts to assist his campaign contributor Nate Paul, who is facing an eight-count federal felony indictment for making false statements to financial institutions. Patrick has longtime political ties to Paxton, including a six-figure debt owed by Paxton to Patrick for campaign funding. And Patrick recently received contributions and loans of $3 million from DTL, presumably to ensure that he remains an impartial guide of the impeachment proceedings. Paxton might never win a Senate popularity contest, thanks to the broken promises and sharp elbows that aided his rise to power. But his appearance on a campaign stage remains invaluable for candidates courting the far-right voters who decide low-turnout Republican primary elections.
In addition, the rules of procedure for the Senate trial of Paxton aren’t the ones handed down over centuries for use in civil and criminal courtrooms. The Senate, meaning Patrick, made them just for this occasion at an Austin-area resort. Despite the lieutenant governor’s promise of “total transparency,” those rules were made in secret, and furtive behavior seems to be a dominant theme for the whole proceeding. Witness lists, for instance, will not be available for perusal by the public. No debate on pretrial matters will be permitted—a yea or nay vote is all any senator will get. It was this penchant for secrecy that caused Democratic senator Sarah Eckhardt, of Austin, to vote against acceptance of the rules. She issued a statement objecting to the lieutenant governor’s “near total control over the proceedings,” adding that the rules were “unprecedented in their presumption for opacity and closed deliberation.” She also pointed out “the unprecedented ability of the defense to win a dismissal of an Article of Impeachment by a simple majority vote.”
The guidelines also prohibit Paxton’s wife, Senator Angela Paxton, from voting, because of her obvious conflict of interest, but still require her presence at the trial. That represents a clever sleight of hand on the rule makers’ part: if Mrs. Paxton were a no-show, that would lower the Senate attendance from 31 to 30, and simultaneously lower the number of votes needed for conviction. Another rule states that a motion to dismiss any article or articles of impeachment, if approved in a public vote by a majority of the Senate, could put an end to the proceedings before they even begin. (Such a rule can be applied before or at the end of the presentation of the evidence.) Not coincidentally, that scenario would keep damaging evidence against the AG, beyond what is already known, out of the public eye while allowing senators to claim that, technically speaking, they didn’t vote to keep Paxton in office.
Almost as threatening to the Republican senators as the fear of losing contributions from wealthy far-right donors is fear of the 3 percent of Texans who decide Republican primaries. Many of those voters worship Paxton, viewing him as the only politician besides former president Donald Trump willing to stand up against the Biden administration and Democrats in Congress. Paxton has won or obtained injunctions in more than two-thirds of the lawsuits he’s brought against the feds. (The attorney general claimed last spring that he’d won 90 percent of the 25 cases he’d filed, while a Hearst Newspapers investigation found the rate was actually around 71 percent, “including cases where judges temporarily blocked President Joe Biden’s policies but a final resolution is still pending.”) Indeed, Paxton won the far right’s undying loyalty for pursuing one crucial suit: challenging the results of the 2020 election. That symbiotic relationship between Trump and Paxton still works to the latter’s advantage: the now thrice-indicted presumptive GOP presidential nominee denounced Paxton’s impeachment by opining last May, “What is our Country coming to?” Paxton reciprocated last week, calling Trump’s newest indictment on charges that he tried to interfere with the 2020 election a “vindictive assault by the radical left.”
A final factor in Paxton’s favor: that gag order imposed by the lieutenant governor, which will hold down the public shaming of Paxton (and, by extension, his supporters in the Senate) until the trial starts. It covers “any member of the court; member of the House of Representatives; party to the trial of impeachment; witness in the trial of impeachment; or attorney, employee, or agent of any of these individuals.” The order makes it harder for reporters to verify evidence and quote credible sources regarding Paxton’s alleged sins, which include but are not limited to using the attorney general’s office as a private law firm for Paul, who also helped the AG’s mistress find a job. The prospect of a $600 fine and six months in jail acts as one deterrent to violating the gag order, but worse for any legislative leaker is the vengeful nature of the lieutenant governor. Any of those folks who talk out of school could find their favorite bills dead on arrival. (This concern apparently does not extend to Paxton, who appears to have violated the gag order last week, when, in a fund-raising letter, he labeled the Senate trial “a kangaroo court.”)
Those who favor conviction of Paxton do cite some small reasons for hope. For one thing, most Republican senators, even on the far right, dislike and distrust Paxton. In one recent example, he allegedly threatened Republican Charlie Geren and other House members with “political consequences” for their potential votes against him during the hearings last May. (The House still voted 121–23 to impeach.)
That the AG’s office has become a political arm of the far right—instead of, according to the duties listed on its website, attending to deadbeat dads, “protecting Texans from waste, fraud and abuse,” and improving conditions in border colonias—has not been lost on moderate Republicans. It’s one reason that the pro-business, right-leaning Texans for Lawsuit Reform funded challenger Eva Guzman, a conservative former Texas Supreme Court justice, against Paxton in 2022. “You could ask who is running the AG’s office between all the people he ran off and the six who left to defend him,” said an attorney familiar with the proceedings, referring to the four lawyers who were fired after they took their concerns to the FBI and the six AG lawyers who have taken leave to join Paxton’s defense team.
“No one has heard from the whistleblowers yet” is another phrase frequently invoked by anti-Paxton forces to suggest a possible (albeit narrow) path to removal. Indeed, three of the four men who had had enough of Paxton’s allegedly illegal and unethical shenanigans and filed suit against him in 2020 were brought into the office by Paxton, and had been loyal soldiers up until they were pushed beyond their limit. The bullying
, and retaliation have only been reported secondhand so far, in findings presented by the House managers in hearings resulting from their investigation. Things might look very different when respected staunch conservatives start testifying about what they regard as Paxton’s criminal misconduct. A guilty finding on just one of the twenty counts against Paxton would be enough to send him packing.
Sources close to the pending trial say that Patrick would like to dispatch this case as quickly as possible. On the one hand, he would like to maintain the support of the donors and primary voters he shares with Paxton. On the other hand, he would prefer not to acquit Paxton and then see the U.S. Attorney’s Office indict him on the same charges—that investigation is accelerating—making Senate Republicans appear indifferent to corruption. Patrick is also keen to avoid another front in the civil war growing among Texas Republican leaders. “The House hates the Senate,” yet another gagged source told me. “The lieutenant governor and the Speaker hate each other. [And] the lieutenant governor hates the governor.” For a man who prides himself on his stranglehold on the Legislature, the impeachment trial, regardless of the outcome, holds the potential for costly disruption. Patrick probably secretly wishes, like many on both sides of the Paxton question, that the attorney general would simply resign. But Las Vegas isn’t giving odds on that either.