Misrule of Law

The RINO establishment in Texas cannot stand Attorney General Ken Paxton, and the conservative voters who thrice elected him.

This essay originally appeared in The Federalist, on July 24, 2023, as “The Establishment’s Paxton Impeachment Sham Undermines The Will Of Texas Voters” (here). Thanks to the SE Texas Record (here), Instapundit (here), Texas Scorecard (here), Real Clear Politics (here), and Ace of Spades (here)! The Left hates Ken Paxton (and his supporters) with almost comical derangement (here). Honorable mention to the Fort Worth Star-Telegram (here).

Texas politics have long been rancorous, unscrupulous, and, in recent years, marred by bitter lawfare—weaponizing the legal system to circumvent election results. For unscrupulous, consider LBJ’s theft of the 1948 Democratic primary for the U.S. Senate, which his Pulitzer Prize-winning biographer, Robert Caro, confirmed was due to ballot box stuffing in south Texas’s corrupt Jim Wells County. Other examples abound. More recently, Democratic prosecutors in Austin, the seat of ultra-liberal Travis County, have filed baseless criminal charges against a series of Republican elected officials, including then-state Treasurer (and later U.S. Senator) Kay Bailey Hutchison, House Majority Leader Tom DeLay, and even sitting Governor Rick Perry.

Not all of the attempts to kneecap political opponents involve Democrats attacking Republicans. Some of the nastiest donnybrooks were initiated by “establishment” or “moderate” Republicans against conservatives. The vindictive—and unsuccessful–impeachment proceedings brought against reform-minded University of Texas Regent Wallace Hall (who was appointed by Perry) in retaliation for his exposure of an influence-peddling scheme at crony-ridden UT is one example. Another is the ongoing campaign to remove from office conservative Texas Attorney General Ken Paxton (R), whom Texas voters overwhelmingly elected in 2014, and enthusiastically re-elected in 2018 and 2022. 

Paxton’s real “crime” is that he threw his hat into the GOP primary for the AG race in 2014 after the anointed establishment candidate, moderate Dan Branch, thought he had the Republican field to himself. In Texas, the AG position has often been used as a stepping stone to higher office—a path previously trod by both U.S. Senator John Cornyn and current Texas Gov. Greg Abbott. When Tea Party firebrand Paxton upset establishment-favorite Branch in the 2014 GOP primary—and went on to win in the lopsided general election, as all Republican candidates for statewide office in Texas have since 1996–the powerful establishment was furious. Branch had been endorsed by George W. Bush and other moderates. In Texas, as elsewhere, the moderate (or “RINO”) faction of the Republican Party loathes grassroots conservatives.

In retaliation for Paxton’s temerity, Branch’s establishment backers, who are supported by the state’s business community and control the Texas House of Representatives (where in 2010 then-House member Paxton unsuccessfully challenged establishment leader Joe Straus for Speaker), unleashed a series of frivolous criminal charges against Paxton, which have been pending for eight years. Anti-Paxton forces orchestrated a flimsy fraud indictment from a paperwork violation unrelated to Paxton’s work as a legislator. Disclosure: I have written about these bogus charges for City Journal and The American Spectator (in a four-part series), describing them as a “witch hunt” and “a political vendetta.”

The establishment fumed when Texas voters elected Paxton in 2014 despite extensive news coverage of the bogus fraud charges, and the consternation increased when he was re-elected in 2018 and again in 2022—while the phony charges were still pending! Grassroots conservatives gave short shrift to the unproven allegations against Paxton, looking instead to his stellar record as a Texas’s top prosecutor. Paxton’s resounding GOP primary victory in 2022, against a crowded field that included George P. Bush (Jeb’s son and GWB’s nephew) and heavily-bankrolled former Texas Supreme Court justice Eva Guzman, made the establishment apoplectic. In the primary runoff, Paxton beat Bush by more than a 2-to-1 margin. In the general election, Paxton outpolled his Democrat challenger 53.4% to 43.7%.  

The establishment, worried that Paxton, thrice elected as AG, would become the frontrunner to succeed Abbott as Governor, decided to double-down on its lawfare campaign. Provoked by Paxton’s claim that Texas Speaker Dade Phelan should resign for appearing on the House floor while intoxicated, in May the House voted to impeach Paxton on additional charges of doing favors for a wealthy campaign donor (Austin real estate investor Nate Paul) and terminating four staffers who claimed to be “whistleblowers.” Under Texas law, the impeachment vote resulted in the immediate suspension of Paxton from his duties as AG, pending the outcome of his trial in the Texas Senate, scheduled to begin on September 5. A two-thirds vote of the Senate—a more conservative body than the Texas House—is needed to convict Paxton. Lt. Governor Dan Patrick, a conservative stalwart who endorsed Paxton in the 2022 primary election, will serve as presiding officer at the impeachment trial. The Texas Republican Party supports Paxton.

The impeachment proceedings re-assemble antagonists from previous skirmishes. One of Paxton’s lawyers is Tony Buzbee, who represented Rick Perry in the frivolous charges filed while he was Governor. The team advocating for conviction includes Houston lawyers Rusty Hardin (who played a similar role in the futile campaign against Wallace Hall) and Dick DeGuerin (who previously defended Kay Bailey Hutchison and Tom DeLay). DeGuerin also achieved notoriety for representing David Koresh during the Waco standoff.

Only two elected officials have been previously been removed from office in Texas through impeachment, a governor (James Ferguson) more than 100 years ago and a state judge in 1975 who ultimately served time in prison for financial improprieties and tax evasion. The facts underlying Paxton’s impeachment charges, while more substantial than the groundless fraud indictment, were well-publicized prior to and during the 2022 election campaign.  The lawsuit filed by the alleged whistleblowers was settled for $3.3 million, which in today’s legal system is not an exceptional amount for four plaintiffs in a high-profile case.

What will happen at Paxton’s impeachment trial on September 5? In November 2022, the ultimate jury in Texas politics—the voters—marked 4,278,986 ballots for Paxton. Will a cabal of vindictive establishment hacks succeed in overturning the election? Texas is a popular democracy, not a parliamentary system. Executive officials are chosen by the voting public, not the legislature. A strong argument can be made that, under Texas law, an elected official cannot be removed from office for misconduct if the predicate offenses antedated an election and were a matter of public record known to the electorate.

The rationale, in the words of the Texas Supreme Court, is that “the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official if the public knows about such misconduct prior to the election.” To the dismay of the RINO establishment in Texas, their campaign to besmirch Paxton has not diminished his popular support. The voters selected him despite extensive public airing of various allegations about him. As Americans witnessed during the presidency of Donald Trump, impeachment is the last resort of frustrated political opponents unable to get their way through the democratic political process.

In Texas, as in the nation’s capital, impeachment is just another form of lawfare. Convicting Paxton would bar him from holding public office in the future–precisely the establishment’s goal, and contrary to the voters’ mandate. Such a result would be tantamount to a banana republic coup unworthy of the Lone Star State.