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Ken Paxton’s prosecutors stumbled at times. But did it matter in the GOP-dominated Senate?

By Zach Despart, The Texas Tribune

Ken Paxton’s prosecutors stumbled at times. But did it matter in the GOP-dominated Senate?” 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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By any measure, the House impeachment managers’ prosecution of Attorney General Ken Paxton fell well short of perfect.

The star-studded lineup led by trial lawyers Rusty Hardin and Dick DeGuerin struggled at times with the trial’s time limits while tying together all the threads of a complex case and providing enough evidence to prove beyond a reasonable doubt that Paxton misused his power and needed to be ousted from office.

[Ken Paxton was acquitted. See how each Senator voted.]

In the end, senators acquitted Paxton on all 16 articles of impeachment, a thorough shellacking for a House team that had spent three months carefully building its case. The most votes any article received was 14, well short of the 21 required for conviction. And only two of 19 Republicans, Sens. Robert Nichols of Jacksonville and Kelly Hancock of North Richland Hills, voted in favor of conviction for any article.

There was, however, little House managers could do to avoid that outcome in the polarized political climate in Texas, political scientists and trial lawyers said.

The House lawyers and impeachment managers faced the extremely difficult task of convincing the majority of Republican senators to vote against their own political self-interest because Paxton retained significant support among conservative voters, said Thomas Cullee Mayes Jr., a San Antonio trial lawyer.

“Now that we’ve watched the entire trial, it’s very difficult to envision a scenario where the House lawyers, with the evidence they had, could have convinced nine Republican senators to convict,” Mayes said.

Cal Jillson, a political science professor at Southern Methodist University, said senators appeared resentful that the House had impeached Paxton, forcing them to take public votes on whether to convict him — a divisive issue for the Republican base.

He also faulted the House for a presentation of evidence and witness testimony that at times was disorganized and slow-paced. He praised lead defense lawyer Tony Buzbee, a superstar plaintiff’s attorney in his own right, for ably arguing that the House had not proved its case beyond a reasonable doubt.

“I think it was a jump ball for a dozen Republican senators, and somehow they concluded that their interest was better served by voting to acquit,” Jillson said. “What you have is a demonstration of morbid partisanship, because you have all 12 Democrats and two lost Republicans against 16 Republicans that all hung together.”

Mayes likewise commended Buzbee’s performance and said House lawyer Erin Epley was the only House attorney able to go toe-to-toe with him. Though the political realities were what they were, Mayes said, the House should have deployed Epley earlier in the nine-day trial instead of Hardin.

The leaders of the House managers, Reps. Andrew Murr, R-Junction, and Ann Johnson, D-Houston, hinted at this dynamic in speaking with reporters after Saturday’s verdict. Murr said there was a “challenging threshold” to meet in what was functionally a political trial.

“We did our duty to bring the evidence into the sunlight through this impeachment process,” he said. “This trial painted an accurate and clear picture of an out-of-control attorney general who refused to listen to the desperate warnings of his conservative lawyers that he had entrusted to help run his office. … Mr. Paxton has still never explained why he was so determined to help one person, Nate Paul, over the desperate warnings of his most trusted aides.”

Johnson had particular criticism for Lt. Gov. Dan Patrick, who served as the trial’s judge and afterward castigated the House for impeaching Paxton, saying a trial could have been avoided if House leaders had taken a more careful approach to examining the allegations.

Asked whether she thought Patrick sought to inappropriately influence the vote, Johnson responded that Patrick “did seem to have prepared notes ready to attack members of the House and the House process.”

Hardin said several of Patrick’s rulings had handcuffed the House managers’ ability to present their case, including barring testimony from Laura Olson, Paxton’s alleged paramour, after she indicated her intention to assert her Fifth Amendment right against self-incrimination.

Regardless of Patrick’s role in the proceedings, the safest option for Republican senators was to acquit Paxton, said Rice University political science professor Mark Jones. Their greatest consideration, in districts drawn to ensure that Democrats have little chance of winning, is how their decisions will play in hyper-partisan Republican primaries.

“At the end of the day, this was a political decision by the Senate made more as a collective,” Jones said. “That’s what the most active members of the Republican primary electorate wanted to see, and in Texas, power continues to run through that primary in the spring rather than the general election in November.”

Patrick Svitek, Robert Downen and Kate McGee contributed reporting.

Disclosure: Rice University and Southern Methodist University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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