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As the Texas Senate crafted the rules for Ken Paxton’s impeachment trial, the suspended attorney general’s supporters and opponents waged spirited campaigns, publicly and privately, to influence the outcome.
Ultimately, the House impeachment managers got a lot of what they wanted.
The Senate rules, adopted late Wednesday night, aligned with almost all of the 17 recommendations that impeachment managers had sent to the Senate committee tasked with drafting the rules. Some rules did not go as far as the managers had sought, but the Senate appeared to reject only one of the suggestions outright.
That the House won out is not entirely surprising. The 17 suggested rules were based on what the managers said were precedents established in the state’s two previous impeachment trials.
The end result also shows that the Senate was largely unpersuaded by the main argument of Paxton and his allies: that senators should not validate a “rushed” and “unfair” House impeachment process by allowing a full-blown trial.
“Overall, the rules seem to be aimed at conducting a fair, efficient trial,” Ross Garber, a nationally known impeachment lawyer, tweeted Thursday. “The rules are incredibly extensive and detailed.”
In a potentially revealing contrast Thursday, the top impeachment manager and his lawyers released statements expressing satisfaction with the rules. Paxton’s side issued a statement saying only that his lawyers were looking forward to clearing his name.
The rules “provide a fair trial for both sides,” impeachment lawyers Dick DeGuerin and Rusty Hardin said, while Rep. Andrew Murr, the Junction Republican who chairs the board of managers, said the rule-making process in the Senate “respects the seriousness of this matter and the importance of a fair impeachment trial.”
“Now that the senate has adopted the rules, we look forward to proving every count of this sham impeachment is baseless,” said Tony Buzbee, Paxton’s lead lawyer.
Among the House’s victories were rules providing for the recusal of state Sen. Angela Paxton, Ken Paxton’s wife; requiring senators and witnesses to be under oath; and letting parties request subpoenas to compel witnesses to provide testimony or documents.
Angela Paxton’s role was perhaps the most closely watched issue in the rules debate, and her husband’s team had expressed skepticism toward any rule addressing recusals. Under the rules, Angela Paxton must attend the trial — state law requires every senator be present — but she cannot vote on anything or participate in deliberations.
The one rule that the House wanted but clearly did not get was a requirement that senators deliberate in open session; the rules say deliberations will be private, though all votes will be held in public. The public proceedings will still be transcribed and livestreamed, and media organizations will be allowed to have two cameras in the chamber — all in line with what the House sought.
In a more surprising development, the rules set aside four of the 20 articles of impeachment. Those four deal with Paxton’s long-running securities fraud case, his failure to register with state securities regulators and incomplete personal financial statements — though the Senate can decide after the first trial whether to proceed with them.
As for Paxton’s side, it had lobbied heavily for a rule that would allow the Senate to issue a summary judgment, or a verdict based on statements and evidence gathered prior to any trial. While the rules do not explicitly provide for that, they do allow Paxton’s side to file pretrial motions to dismiss any or all articles of impeachment. A majority of the Senate would have to approve those motions.
In a radio interview Monday, Lt. Gov. Dan Patrick rejected calls for the Senate to “just dismiss” the impeachment outright.
“We actually have to address the issues,” Patrick said. “If not, then they could keep Ken Paxton away from doing his job forever. In other words, it has to be addressed.”
At the same time, Patrick noted that “any lawyer can make any motion for anything that can be considered.”
The House impeached Paxton late last month, accusing him of a yearslong pattern of misconduct and lawbreaking. That triggered his temporary suspension from office, and Gov. Greg Abbott appointed as temporary attorney general John Scott, the former secretary of state.
The Senate created a seven-member committee to draft rules for the impeachment trial and set a June 20 deadline for the panel to present recommendations to the full Senate. Senators started meeting in private Tuesday to debate the proposed rules and emerged Wednesday night to approve a rules resolution on a 25-3 vote.
The Senate also voted to push the start date of the trial back to Sept. 5. They had originally planned on starting the trial by Aug. 28.
Only one of the three senators who opposed the rules, Sen. Sarah Eckhardt, D-Austin, explained her vote in the Senate journal. She said the rules give Patrick too much power, did not provide enough transparency and made it too easy for pretrial dismissal.
“Most disturbing is the unprecedented ability of the defense to win a dismissal of an Article of Impeachment by a simple majority vote,” Eckhardt said. “As should be expected given every other impeachment rule I have read, the prosecution must prove its case beyond a reasonable doubt with at least 2/3 of the senators present.”
Angela Paxton and Sen. Bob Hall, R-Edgewood, also voted against the rules. Paxton released a statement to the media Thursday afternoon that seemed to suggest she disagreed with the recusal rule. Before the rules debate, she had promised to “carry out my duties” in the impeachment proceedings.
Other Paxton allies made clear Thursday they did not like the recusal rule. Conservative donor Doug Deason said it was a “poor decision” driven by the political ambitions of the Senate rules committee, and activist Michael Quinn Sullivan questioned why senators who opposed Ken Paxton in his 2022 primary were not subject to recusal.
The jockeying over the rules heated up last week when the House impeachment managers sent a memo to the Senate rules committee, outlining their 17 preferred rules. They said it was in response to Buzbee’s media appearances, suggesting he was seeking a “sham” trial.
Paxton’s lawyers countered in their own memo to the rules committee, recommending three rules it deemed “essential.”
They asked that the House’s burden of proof be “beyond a reasonable doubt.” They got that.
But they did not get their way on the two other points. Paxton’s lawyers wanted witnesses to be presented by deposition, not live testimony; the rules prohibit depositions unless they were from a prior legal proceeding. Paxtons’ lawyers also said neither side should have the power to subpoena witnesses; the rules say either side can do that with approval of the presiding officer.
Paxton’s lawyers also took issue with several of the 17 rules that had been proposed by the impeachment managers. For example, the impeachment managers said they should be able to bring additional articles of impeachment before the trial. Paxton’s lawyers objected to that, calling it “manifestly unjust and unnecessary.” The rules sided more with the impeachment managers, allowing them to bring additional articles up to 30 days before the trial.
As much as the House got its way, a lot of the rules could hinge on the judgment of Patrick — or whoever the presiding officer may be. The rules say it could be Patrick, a senator picked by him or a “jurist” who is not running for reelection in 2024.
In her statement on voting against the rules, Eckhardt said they give the lieutenant governor “near total control over the proceedings.”
Under the rules, the presiding officer can unilaterally rule on a wide range of issues, from most pretrial motions to questions of evidence — though senators would have to approve any motion to dismiss articles of impeachment.
And, Eckhardt said, the authority of the presiding officer, “in almost every aspect, cannot be openly challenged, debated or even commented on by the senators until after the trial is complete.”
Disclosure: Dick DeGuerin, Rusty Hardin and Tony Buzbee have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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