Misrule of Law

This essay originally appeared in American Greatness, on August 4, 2023 (here). Thanks to Instapundit (here) and Real Clear Politics (here)! Honorable mention to the Fort Worth Star-Telegram (here).

Liberty-minded legal scholars decry prosecutorial abuses—including over-criminalization of conduct, overcharging of defendants, selective prosecution, and politicized sentencing—as we descend ever-further into the arbitrary enforcement of laws.  University of Tennessee law professor Glenn Reynolds calls the weaponization of the criminal justice system “ham sandwich nation,” referring to the notorious ease over-aggressive prosecutors have in obtaining indictments from grand juries. Unscrupulous prosecutors can (and do) use this imbalance of power to coerce plea bargains from out-matched defendants lacking the resources to defend themselves.

But at least criminal defendants enjoy due process protections: the presumption of innocence, an exacting burden of proof (“beyond a reasonable doubt”), the requirement of a unanimous verdict by an unbiased jury, sworn testimony, and a myriad of procedural rules with which prosecutors must comply. For example, criminal defendants are entitled to detailed statements of the charges they face, pre-trial disclosures, the right to confront witnesses through cross-examination, the right to an appeal, and many other protections. The unsavory tactics of “ham sandwich nation” are increasingly being used by elected officials to kneecap their political opponents, without the accompanying niceties.

In the sphere of political lawfare—attempts to circumvent the will of the voters through quasi-legal maneuvers such as impeachment—we see the worst of both worlds: vindictive legal proceedings without due process protections. These abuses were evident in the two unsuccessful impeachment proceedings against President Trump (not to mention the unprecedented spate of subsequent indictments), but that was just a dress rehearsal. In the upcoming impeachment trial of thrice-elected Texas Attorney General Ken Paxton, scheduled to begin in the Texas Senate on September 5, the abuses of “ham sandwich nation” are on full display. Paxton was relieved of his duties as AG upon the impeachment vote of the Texas House of Representatives—the equivalent of an indictment—before his “trial” in the Texas Senate even began. So much for the presumption of innocence! The Senate can convict upon a two-thirds vote of its members.

Paxton has been subjected to longstanding prosecutorial misconduct in still-pending criminal proceedings, such as the government’s hiring of partisan mercenaries to act as prosecutors, filing frivolous charges, moving to change venue to deprive Paxton of a jury of his peers, and colluding with reporters to prejudice the public against Paxton. None of these dirty tricks worked as planned to cripple Paxton politically. Paxton, first elected as AG in 2014, was handily re-elected in 2018 and 2022. Texas voters believe Paxton is doing a great job as Attorney General and wish to keep him on the job. Paxton’s political enemies—an odd alliance of liberal Democrats and so-called “establishment Republicans” (a/k/a RINOs)—feels differently, and is trying to disqualify him from future elective office by impeaching him for conduct that was well-publicized prior to his 2022 re-election.

In other words, RINOs in the Texas House of Representatives (led by controversial Speaker Dade Phelan, elected to that influential post with Democrat support) want to override the will of Texas voters and remove a statewide elected official who just won a landslide election with almost 4.3 million votes. In the GOP primary runoff, Paxton beat RINO opponent George P. Bush (Jeb’s son and GWB’s nephew) by more than a 2-to-1 margin! The grassroots love Paxton even if the political class in Texas’s capitol does not. In a democracy, the voters should prevail over internecine political intrigue.

Paxton’s legal team is not rolling over. Led by firebrand Houston litigator Tony Buzbee, Paxton’s legal team has complained about the lack of due process in the impeachment proceedings. Paxton’s lawyers have demanded production of relevant documents prior to the “trial,” moved for a “bill of particulars” providing greater specificity than the vague articles of impeachment themselves (which lack dates, names, and other essential details), objected to Senate “jurors” who have publicly expressed the belief that Paxton is guilty (before hearing the evidence against him), and moved to dismiss 19 of the 20 articles of impeachment on the ground that they are based on well-publicized events that occurred prior to the 2022 election.

Texas law (Texas Gov’t Code § 665.081) defers to the will of the voters when seeking the removal of elected officials (and in Texas, nearly all officials, even judges, are elected). Paxton’s lawyers urge that “all but one of 20 articles of impeachment be dismissed, arguing his removal would ‘override the will of the people’ who elected him with knowledge of his alleged misconduct…. Paxton’s lawyers argued that almost all of the allegations outlined by House investigators were known to voters at the time of his most recent election, and that his impeachment would thus negate the will of Texas voters.” Paxton’s team also filed a companion motion to exclude evidence of conduct known to the voters prior to the election. In Texas, the voters are the ultimate judge and jury of elected officials, not a cabal of RINO insiders in the legislature.

It is doubtful that the Senate—more sober-minded than the House and led by conservative stalwart Lt. Gov. Dan Patrick–will convict Paxton, but it is essential that the proceedings follow the law and provide the accused with due process. “Ham sandwich” or not, the highly-visible impeachment proceedings must be conducted fairly. The Texas Senate would be well-advised to avoid the ignominy that the farcical Trump impeachments brought upon the U.S. House of Representatives. Political lawfare debases elections and shows contempt for voters. The Lone Star State deserves better.