The fifth day of the impeachment trial of suspended Texas Attorney General Ken Paxton included reports of adultery and misuse of State resources for private purposes. His former chief of staff testified that “50 percent” of executive-level staff time was spent on activities to benefit donor Natin “Nate” Paul, and it “was directed by Attorney General Ken Paxton.” Paxton wanted to have his office investigate the federal and DPS investigators who were investigating his donor and him, witnesses testified.
On the morning of Day 5, Texas Lieutenant Governor Dan Patrick announced both House Managers and Paxton’s defense had spent 14 hours on their part of the trial. House impeachment managers may rest their case on Day 6, and the defense may call their witnesses. He estimated the trial would be over on Thursday morning (Day 8). Senate jurors would then start their deliberations and continue until they are done.
House impeachment rules provide each side with 24 hours to present their case. They have one hour each for closing arguments. Senator Patrick serves as the president of the Texas Senate and is acting as “judge” over the trial. Part of his responsibilities is to overrule and sustain objections and decide on the admissibility of exhibit evidence.
As reported by Breitbart Texas on Day 5, Mark Penley, the former deputy general for law enforcement, testified General Paxton asked him and the top investigator, former Texas Ranger David Maxwell, to investigate federal investigators investigating his donor. Some of these investigators were the same officials investigating Paxton in association with his pending securities fraud case. The articles of impeachment related to the securities board issues are being held in abeyance. Paxton’s trial was transferred from Collin County to Harris County.
Maxwell served as the Deputy Director of the Law Enforcement Division before Paxton fired him for refusing to engage in the investigation, Breitbart Texas reported. David M. Maxwell, Jr., a distinguished Texas law enforcement officer with 25 years experience as a Texas Ranger, testified on Day 4 that he told the AG both of them could get indicted if they interfered in the FBI’s investigation of Paul.
Paul is an Austin real estate developer who donated $25,000 to Paxton. He is also the employer of Paxton’s mistress. Paul is named in the articles of impeachment. He is specifically mentioned in six of the articles and is implicated in most of the others.
FBI agents arrested Paul in June. The 23-page indictment includes eight counts of making false statements to financial institutions.
Mark Penley served 16 years as a federal prosecutor, graduated from the U.S. Air Force Academy, and was on active duty for five years. He worked in two of the largest law firms in Texas and practiced general commercial law and tort litigation. He detailed his deep Christian faith while on the witness stand.
Penley detailed how Paxton wanted him to meet at a coffee shop in Highland Park in Dallas to discuss “a friend of mine.” When he arrived at the coffee shop, Paxton asked him to go to the car, Penley stated. While in the car, Paxton called Nate Paul, and Penley could hear the conversation. He explained Nate Paul was discussing raids at his home and business properties.
When asked what he was thinking, Penley answered, “Why is the Attorney General involved in this? Why is he wanting me to be involved in this?” He added he thought it was very odd that someone under federal investigation would have the Texas Attorney General’s attention this way.
Penley testified it would be “crazy” and “insane” if the State of Texas investigated a federal magistrate judge, federal prosecutors, and federal investigators the way Nate Paul wanted OAG top deputies to. Penley said he knew the federal agent involved in the search warrant from when he was a federal prosecutor in Dallas.
The former Deputy AG for Law Enforcement said he did not feel he could “ethically” sign a contract for the OAG to hire outside counsel to investigate his donor’s investigators. He said he told the AG he “can not sign it” and “respectfully, he will not sign it.” He said he warned the AG he looked like he was being bribed and there could be a media scandal. He added he also told Paxton about other concerns and there was no ethical or legal reason they should do Nate Paul’s desired investigation.
House Impeachment Managers called Katherine “Missy” Minter Cary to testify to many issues involving the articles of impeachment. These included Paxton’s contract with a lawyer hired by Paxton to investigate federal and DPS investigators and public record requests designed to assist Paul. Testimony revealed Mr. Paul was the employer of Laura Olson. Cary also testified about the adultery.
The former chief of staff confronted Paxton after his security detail, state-employed personal assistant, and other staff members complained about his relationship with Laura Olson. Cary testified about the impact of calendaring changes, extra hours, and the weekends staff had to work. This “was not state business,” she added. It was causing disruption and morale problems.
Cary stated Angela Paxton would call the office looking for General Paxton, and staff members were uncomfortable answering her phone calls. Ken Paxton served as a Texas state senator with his constituency centered in Collin County, a county also central to Texas Senator Angela Paxton’s election (R-Mckinney).
Senator Angela Paxton was not sworn in as a juror; however, the Texas Constitution requires her to be present, so she has to hear the testimony. She is recused from voting, deliberating, or asking questions of any witnesses.
Cary went to Paxton and talked to him about the ethical concerns and ramifications, including being vulnerable to bribery. She said it was a misuse of office and state resources and time. “I told General Paxton quite bluntly it wasn’t my business who he was sleeping with, but when things bleed over into the office and into the state work, it becomes my business.” Paxton said Olson was his real estate agent, Cary stated.
Cary revealed Ken Paxton, Senator Paxton, and upper staff met in September 2018, where Paxton told everyone he had had an affair. The Senator cried, and Cary described the meeting as very uncomfortable. Cary had told him he needed to tell his wife about the affair. “My heart broke for her [Angela].” After the meeting, she thought, “This behavior was out of his life for good.” She said she learned in 2019 that Paxton was still having the affair. She said she talked to her boss, who told her he still loved Olson. He reportedly yelled at her and stormed out of her office.
Part of Cary’s job as chief of staff was to evaluate contracts. She discussed the approval process, including evaluation for compliance with the Appropriations Act. Paxton called Cary to ask about the approval process. She said she told him she believed he could go around the process and either he or the first assistant could sign a waiver, but the best interest standard still applies. State law and procedure requires all contracts be in the “best interest” of the state. Cary stated she could not recall the AG hiring outside counsel for another criminal matter.
Cary said she had problems with all those resources going to one person but acknowledged there was much speculation about the underlying reasons. She testified that “some of the group” felt an obligation to go to law enforcement. She said she was concerned over a lot of effort being put into solving the problems of a private person when so many of the staff disagreed.
Cari testified she was subpoenaed to go before the grand jury in 2021. She is not a whistleblower because she had already submitted her notice of retirement to the office. She added, “She was a quitter.”
When asked on cross-examination by Paxton’s attorney Tony Buzbee whether Paxton has been indicted, she replied, “Not that I know about.”
Buzbee added that it has been a “long time since 2021,” and “there has been no indictment.” He also asked Cary if she knew that Brandon Cammack had never been paid. She answered, “No.”
House Managers called former Travis County District Attorney Margaret Moore and her assistant prosecutor Greg Cox as witnesses during the afternoon of the trial. Cox was serving as the DA’s director of operations, and she had flagged a concern regarding a records request by Nate Paul.
House Exhibit 660, a memorandum written by Cox, was admitted over objection. Cox’s memo detailed the possible and probable criminal actions committed and by what possible criminal defendants, including Paxton. This included bribery, accepting a gift from a public servant, abuse of official capacity (misusing something of value and violating the law relative to Election Code violations including possible money laundering), tampering with a public record, perjury in public documents, coercion of a public servant, official oppression, retaliation and criminal conspiracy.
It was Cox’s opinion that chapter 572 of the Texas Government Code governing the conduct of public employees showed a very clear violation.
Defense attorney Buzbee pounded on the issue of “possible,” “maybe,” “potential,” about Cox’s memo discussing criminal offenses and added, “Who knows!?”
He noted that Cox was from the same Travis County District Attorney’s Office that indicted Governor Rick Perry for exercising his constitutional right to veto. The Texas Court of Criminal Appeals dismissed Perry’s charge in February 2016, reported Breitbart Texas.
Former Travis County DA Margaret Moore testified she considered Paxton a friend and wanted a good relationship with him. She had worked with Greg Abbott when he was AG and “had a particular fondness for [him].”
DA Moore testified she thought Nate Paul’s complaints about federal and state law enforcement were “ridiculous” and sent them to OAG top investigator Maxwell because she “was confident that he would agree.” She “expected it to be a dead issue on arrival.”
“It was a whole range of agencies, and it was a conspiracy that I found incredible,” she said. She named the securities board, Texas Rangers, a federal magistrate, and other federal and state authorities.
Moore found out much later that members of her staff were assisting Cammack with the issuance of subpoenas. She denied ever appointing a prosecuting attorney pro tem.
When asked by the defense whether she was gleeful when she found out this about a Republican office and officeholder, Moore answered, “I cannot speak for the entire office, but I was not excited about any of this.”
Many of the articles of impeachment relate to Paxton’s alleged dealings with Austin real estate developer Nate Paul. FBI agents arrested Paul in June on charges of false statements to financial institutions and understating the value of his bank accounts and other assets. Paul donated $25,000 to Paxton’s campaign and is the employer of Paxton’s mistress.
Article XVII of the Articles of Impeachment charges “Paxton misused his official powers by causing employees of his office to perform services for his benefit and the benefit of others.”
Texas Penal Code section 39.02 entitled “Abuse of Official Capacity,” provides:
a. A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
1. violates a law relating to the public servant’s office or employment; or
2. misuses government property, services, personnel, or any other thing of value belonging to the government that has come in into the public servant’s custody or possession by virtue of the public servant’s office or employment.
The degree of punishment is a misdemeanor or felony, depending on the value of the thing misused. It is a state jail felony if the value of the thing misused is $2,500 to $30,000, a felony of the third degree if the value is $30,000 to $150,000, a second decree felony if the value is between $150,000 and $300,000, and a felony of the first degree if the value is $300,000 or more.
Cary testified that at one point, she believed the upper echelon was spending 50 percent of their time on Nate Paul.
Article IX of the Articles of Impeachment provides that Paxton engaged in bribery, thus violating section 41, Article XVI of the Texas Constitution. The Texas Penal Code section governing bribery is 36.02.
Article XVIII of the impeachment articles is a “catchall” that charges “While holding office as attorney general, Warren Kenneth Paxton violated the Texas Constitution, his oaths of office, statutes, and public policy against public officials acting contrary to the public interest by engaging in acts described in one or more articles.”
Article XIX charges that Paxton “engaged in misconduct, private or public, of such character as to indicate his unfitness for office, as shown by the acts described in one or more articles.”
Article XX charges that Paxton abused the public trust, “bringing the Office of Attorney General into scandal and disrepute to the prejudice of public confidence in the government of this State, as shown by the acts described in one or more articles.”
Ken Paxton has not attended the impeachment proceedings except for the first morning when he was required to enter a guilty or not guilty plea. Defense attorney Tony Buzbee entered a “not guilty” plea for Paxton.
Video archives of the impeachment proceedings can be found on the Texas Senate Impeachment website. The articles of Impeachment, the Rules of Procedure for the Court of Impeachment, the witness list, all motions filed by the House Board of Managers and Paxton’s defense team, exhibits, and other potential evidence are posted on the Texas Senate Court of Impeachment website.
Lana Shadwick is a writer and legal analyst for Breitbart Texas. She is a trial lawyer who practices criminal defense and family law in East Texas. She was a Texas prosecutor and family court associate judge in Harris County, Texas.
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