Misrule of Law

The first impeachment of a statewide elected official in Texas in over a century was a spectacular bust. What happened?

This essay originally appeared in The Federalist on October 31, 2023 as “Paxton’s Impeachment Spiraled Out of GOP Intra-Party Feuds” (here). Thanks to Real Clear Politics (here)!

The impeachment of thrice-elected Texas Attorney General Ken Paxton by the Texas House of Representatives in May drew national attention to the internecine quarrels between conservatives and moderates within the Republican Party in the Lone Star State. Even the Wall Street Journal took sides, erroneously predicting Paxton’s demise (in an intemperate column by Karl Rove titled “The End Is Near for Texas Attorney General Ken Paxton”).  Paxton’s resounding acquittal of all 16 articles of impeachment by the Texas Senate in September, following a costly nine-day trial presided over by Lt. Gov. Dan Patrick, after just eight hours of deliberation, only exacerbated the intra-party feud that began in 2014 when Paxton—a Tea Party favorite–disrupted the AG race by defeating an establishment rival endorsed by George W. Bush.

Paxton’s exoneration (risibly reported by the WSJ as “Paxton Avoids Conviction”) did not diminish the hubris of his establishment opponents. The WSJ, which had devoted considerable ink to attacking Paxton and advocating his removal from office, proved to be a sore loser, accusing Patrick and the Texas Senate of corruption, without citing any evidence. “It’s now obvious the fix was in from the start,” the WSJ opined, eliciting a blistering rebuttal from Patrick, who pointed out the obvious: The House’s impeachment case against Paxton was slipshod and full of holes. Paxton’s superb lawyers methodically tore the meritless case to shreds.

For decades, Texas has been a Republican state, and both houses of the Texas legislature are majority-Republican. All of the players (Paxton, Patrick, and impeachment proponent House Speaker Dade Phelan) are on the same team—the GOP. Why, then, would one faction of the GOP commence an ill-conceived campaign of political lawfare against a popular statewide elected official who was just re-elected with over four million votes and enjoyed the unwavering support of the Texas Republican Party?  The schism results from a struggle for control, between the state’s conservatives (who view Paxton as their champion) and “establishment” Republicans who despise the grassroots. As I stated in City Journal in 2017, “Intra-party grudges can be even more rancorous [than partisan disputes], especially in a one-party state.” 

The establishment represents the interests of the state’s dynamic business community, which—thanks to GOP policies–has become a powerful juggernaut in Texas. Due to the leadership of Texans for Lawsuit Reform, a well-funded statewide group founded in the 1990s when the state’s legal system was hijacked by the plaintiffs’ bar and Texas earned the unsavory moniker “lawsuit capital of the world.” Today, Texas’s civil justice system is a model of sensible reform. TLR literally took back the Texas legislature and judiciary (which is elected) from trial lawyers—a remarkable accomplishment. Disclosure: I have spoken, written, and donated in support of TLR.

Having vanquished the plaintiffs’ bar, TLR—instead of disbanding—expanded its agenda beyond civil justice reform per se, advocating things like a Delaware-style specialized business court, education reforms, and other “good government” measures. Call it mission creep. TLR, one of the most influential PACs in Texas, became a utility infielder for the state’s flourishing business community. TLR supports both Democrat and Republican candidates, so long as they hew to TLR’s evolving agenda. Woke corporate America, however, increasingly favors progressive policies. The chamber of commerce, once a Republican mainstay, is now often aligned against conservatives.

In 2022, TLR decided to oppose Paxton’s re-election as AG, not because he crossed the aisle on civil justice issues, but because TLR’s corporate donors became disenamored of his populist, evangelical-friendly, and Trump-endorsed record, which included taking legal positions disfavored by Big Tech and Big Pharma. Eva Guzman, a popular TLR-backed justice on the Texas Supreme Court, resigned from the bench to run against Paxton for AG in the March 2022 Republican primary, and TLR quickly endorsed her. TLR’s stated rationale for switching its support (having previously backed Paxton in the 2014 and 2018 general elections) was that Paxton was “damaged goods” and, if nominated, was likely to be defeated by the Democratic candidate for AG. Despite running a well-funded campaign, with generous support from TLR donors, Guzman finished third in a four-person field, with 17.7 percent of the vote, barely out-polling late-entrant Louis Gohmert. This was an embarrassment for TLR.

Paxton, with 42.7 percent of the vote, faced a runoff against second place finisher George P. Bush, who drew 22.8 percent. Bush, son of Jeb and nephew of George W., had previously served two tumultuous terms as Texas Land Commissioner.  The May 2022 runoff was a blowout, with Paxton beating Bush by more than a two-to-one margin: 68% to 32%. Paxton handily won the general election in November, drawing 4.2 million votes and beating his Democrat opponent by 10 points. Contrary to TLR’s stated rationale, Paxton was not vulnerable after all, despite all the money TLR spent attacking him in the primary.

The invincible TLR had egg on its face. Perhaps hoping that Bush would be appointed to replace Paxton in the event of an impeachment, documents obtained by subpoena by the Paxton legal team suggest that TLR mobilized its loyal minions in the Texas House, led by Phelan, to orchestrate a baseless impeachment vote, and then worked behind the scenes to undermine Paxton. Emails reveal that Dick Trabulsi, TLR’s co-founder and longstanding chairman, coordinated with Bush family consiglieri and TLR-ally Karl Rove to place an anti-Paxton op-ed in the WSJ, purportedly written by former Texas Gov. Rick Perry. The column, titled “Ken Paxton and the Constitution,” ran on August 24. The actual submission was made by TLR’s comms director, not Perry himself or his staff. Internal emails (with Rove noting that “Hennessey liked it. Hence the quick approval and edit.”) indicate that Rove was also in contact with the WSJ’s editors regarding the submission.

After the “Perry” column ran, Trabulsi congratulated Rove with an email stating “You delivered a good, succinct history lesson today.” Rove responded “Glad you liked it.” Perry does not appear as an addressee on the entire thread. It would appear that the column was ghostwritten by Rove and placed by TLR in a last-ditch attempt to remove Paxton from office.

In its mean-spirited post-acquittal editorial, the WSJ scoffed at the notion that Paxton was the subject of a coup attempt by the Bush faction of the Texas GOP: “What a joke. There is no longer a Bush era in Texas or anywhere else. George P. Bush, Jeb Bush’s son, lost to Mr. Paxton in the 2022 primary for AG.” In light of emails showing that the WSJ was colluding with TLR and Rove to influence the Texas Senate to convict Paxton, the WSJ’s sanctimonious claim of neutrality is particularly disingenuous.

What have we learned from the Paxton impeachment? The Trump-inspired animus of establishment “moderates” (or RINOs) toward conservatives is stronger than ever, the woke business community is hostile to the grassroots, and tort reform groups—once a reliable Republican bulwark—are now mercenaries pursuing their own path to power. And also this: In Texas, conservatives still rule the GOP.