AUSTIN, Texas — When suspended Attorney General Ken Paxton was elected to his third term last year, he was already in legal trouble. He was indicted on securities fraud charges in 2015, which is a first-degree felony punishable by up to 99 years in prison. Paxton pleaded not guilty, but has so far avoided trial.
“I think that the securities fraud judge will want to move the case along, given the ability to do so. It’s been sitting around forever on all these procedural matters,” said David Coale, a Dallas-based appellate lawyer with Lynn Pinker Hurst Schwegmann LLP.
Paxton will be back in court for a hearing in his securities fraud case in October, after the impeachment trial is over. A majority of Texas House Republicans voted to impeach Paxton in May. He’s accused of obstruction of justice, bribery and abuse of office.
The impeachment trial will begin Sept. 5. It’ll all take place in the Texas Senate chamber, which has been transformed into a courtroom-like setting. Senators will serve as jurors, and they met behind closed doors on Tuesday in the Capitol. One senator told Spectrum News they reviewed the rules for the trial, and no votes were taken. Paxton wants them to dismiss the articles of impeachment against him.
Experts say what’s revealed in his upcoming Senate trial could impact the outcome of his criminal one. Coale says if Paxton is called to the stand and pleads the Fifth, or declines to provide incriminating testimony, it doesn’t look good in the impeachment trial. But if he testifies, then he could give the prosecutors in the criminal case a lot to work with.
“The standard advice is, ‘Don’t say anything,’ because words that you think sound really good in one setting hardly ever sound great when they’re played in another setting,” Coale said. “But that comes with a terrible cost. If he has to get up in this proceeding and take the Fifth Amendment over and over and over again, as the law requires you to do, that’s not a great look in the impeachment case. So yes, the possibility for this to impact the criminal case is substantial. The standard playbook is to mitigate that damage by having a defendant take the Fifth Amendment. But this is very unusual because the proceeding in which you’d be taking the Fifth Amendment is so high profile, and so many people are watching it.”
Coale bets that the prosecutors in Paxton’s criminal case have read “every scrap of paper” that’s been filed in the impeachment trial to see if it helps their case.
“You can be sure that every word Mr. Paxton says, if he takes the stand, is going to be very carefully sifted through their database of every other factor they have in the case for any conceivable inconsistency,” Coale said. “The audience there is very unforgiving in the criminal proceeding.
The FBI is also looking into alleged corruption that was revealed in a whistleblower lawsuit, which sparked the House investigation into Paxton and ultimately led to his impeachment.
Those investigators could also use the evidence from the Senate trial to make their case.
“It’ll go straight from the transcript in the statehouse to whoever is looking at it in the FBI’s office,” Coale said. “There’s no question about that.”
House impeachment lawyers have released thousands of pages of evidence against Paxton, and one watchdog group suggests more incriminating information could come out on the Senate floor.
“It’s entirely possible that one of the Senate’s findings might be that there are other crimes that Paxton potentially committed, and those crimes could easily be recommended for prosecution,” said Adrian Shelley, the Texas director for Public Citizen.
The State Bar of Texas also sued Paxton for allegedly trying to challenge the results of the 2020 election. And this week, a group of 14 attorneys filed a complaint asking the State Bar to investigate Paxton’s criminal allegations and possibly disbar him.
“Logically, it doesn’t make sense to put the licensing issue in front of the criminal law issues,” Coale said. “If he didn’t violate the law, it’s no real concern to the Bar.”