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Ken Paxton’s lawyers seek to dismiss 19 of 20 articles of impeachment

By Robert Downen, The Texas Tribune

Ken Paxton’s lawyers seek to dismiss 19 of 20 articles of impeachment” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Lawyers for suspended Attorney General Ken Paxton requested Monday 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.

In a separate filing to the court of impeachment, Paxton’s team also requested that his trial before the Texas Senate exclude any evidence of “any alleged conduct” that occurred prior to January 2023, when his third term in office began.

The second filing — which comes as all parties are under a strict gag order barring most public comment on the proceedings and evidence — also blasted the House impeachment managers as “aggressive, reckless and misleading” with “little to no evidence whatsoever” to support their allegations against Paxton.

In their motion to dismiss, 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.

They also argued that Paxton’s impeachment would run afoul of the “prior-term doctrine,” which they said bars statewide officials from being impeached for conduct that predates their most recent election.

“With only a single exception, the articles (of impeachment) allege nothing that Texas voters have not heard from the Attorney General’s political opponents for years,” Paxton’s team wrote. “The alleged acts underlying 19 of the Articles took place before the Attorney General’s most recent election and were highly publicized.”

The unchallenged article against Paxton is related to the $3.3 million lawsuit settlement he reached with whistleblowers who were fired from his office after reporting Paxton to law enforcement for bribery and other alleged wrongdoing. The House’s investigation into Paxton began earlier this year, after he asked the Legislature to pay for the lawsuit settlement.

Paxton’s impeachment trial before Texas senators is set to begin Sept. 5.

Under rules previously adopted by the Senate, rulings on pretrial motions are expected to be made on the opening day of the trial before opening statements. Approval of a majority of senators is required to dismiss an article of impeachment.

Under Senate rules, the September trial will not consider four articles of impeachment, including several related to 2015 charges of securities fraud for soliciting investors in a McKinney tech company without disclosing that he was paid to do so. Those four articles can be reconsidered at a later date.

Other articles of impeachment deal with Paxton’s relationship with Nate Paul, a political donor and Austin real estate investor who was arrested in June on federal felony charges of lying to financial institutions to secure business loans. House investigators allege that Paxton misused his office to help Paul’s business and to interfere with criminal investigations into him. In return, Paul allegedly paid to remodel Paxton’s Austin home and hired a woman with whom Paxton allegedly had an affair.

The House impeachment managers declined comment on Monday but have until Aug. 15 to respond in writing to all pretrial motions.

Paxton has previously argued that the “prior-term doctrine” bars his impeachment because a Texas constitutional provision prohibits officeholders from being “removed from office for an act the officer may have committed before the officer’s election to office.”

In the Monday filing, Paxton’s attorneys cited a series of cases in which the doctrine was argued, including the 1893 impeachment of Land Commissioner Colonel W.L. McGaughey and the 1917 impeachment of Gov. James “Pa” Ferguson, who unsuccessfully tried to use the doctrine to dismiss four of 21 impeachment articles he faced.

They also stated that they plan to show that most of the allegations against Paxton were “highly publicized not only at the time, but for years prior” to his 2022 election.

“Texas voters elected Attorney General Paxton despite those public allegations — so they have the last word,” Paxton’s lawyers wrote.

Some experts, including the Texas District and County Attorneys Association, have thrown cold water on Paxton’s claims about the doctrine — which is also known as the “forgiveness doctrine” — saying that it has historically been applied only to the removal of local officials.

“It does not appear there is any authority applying the ‘forgiveness’ doctrine to a state official like the AG,” the organization said in a May tweet.

Monday’s filings also came three days after Paxton’s team filed a document in which they accused impeachment managers of using legal filings to “circumvent” the standing gag order “by filing a ‘notice’ to make a public comment.”

The gag order was issued earlier this month by Lt. Gov. Dan Patrick, who will preside over Paxton’s impeachment trial in the Senate. Patrick said the order was justified because of “egregious” out-of-court statements by lawyers from both sides, which he said could affect the impartiality of the 30 Texas senators who are jurors in the matter.

Senate rules prohibit Paxton’s wife, state Sen. Angela Paxton, R-McKinney, from voting on trial-related matters or participating in deliberations on the articles of impeachment.

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