Paxton trial updates, Sept. 14: AG supervisor refutes whistleblower claims

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Editor's note: Today’s impeachment proceedings have ended and this post will no longer be updated. You can find new articles reporting the latest from Ken Paxton’s trial here.

The historic impeachment trial of suspended Attorney General Ken Paxton is underway in the Texas Senate. He faces 16 articles of impeachment that accuse him of misusing the powers of the attorney general’s office to help his friend and donor Nate Paul, an Austin real estate investor who was under federal investigation.

Paxton pleaded not guilty to all impeachment articles on the trial’s first day. His defense attorneys have vowed to disprove the accusations and said they will present evidence showing they are based on assumptions, not facts.

Attorney General Ken Paxton’s team rested its case just after 5:30 p.m. The defense called just four witnesses in total, all current department heads who currently work at the agency.

They had several hours of available time remaining.

The defense’s strategy appeared to be to attack individual articles of impeachment rather than refute the prosecution’s narrative of corruption and bribery.

Though the rules permitted both sides one hour each to present rebuttal evidence, lawyers for the defense and prosecution said they will move to their closing arguments instead.

Judge Dan Patrick adjourned the court until 9 a.m. Friday.

— Zach Despart

The last witness Ken Paxton’s side called was Grant Dorfman, the deputy first assis­tant attor­ney general. He joined the office in December 2020, after the whistleblowers reported the attorney general to the FBI, and later handled settlement negotiations with them over their lawsuit claiming they were illegally fired.

Dorfman denied the allegation made in impeachment charges that the settlement “stayed the wrongful termination suit and conspicuously delayed the discovery of facts and testimony at trial.” Dorfman said it was a pleading that Paxton’s office made that stayed the suit, and “whether conspicuous or not, it didn’t delay the discovery of facts.”

“By settling, there was no discovery ongoing at that time,” Dorfman said.

In cross examination, House lawyer Daniel Dutko countered that Paxton’s office knew what it was doing in effect by filing the pleading that stayed the lawsuit. He noted that Paxton’s office kept appealing even after the pleading was denied.

“If you did not appeal, you could go back to the trial court and take discovery,” Dutko said.

In any case, Dutko sought to highlight how Dorfman’s time in the office came after all the events that culminated in the whistleblower claims. Dorfman did not argue with that.

“I have no personal knowledge of what happened,” Dorfman said. “I didn’t hear any conversations in September or October or prior to that at the agency. That’s true.”

— Patrick Svitek

Ken Paxton’s defense team next took aim at impeachment article 6, which alleges that the attorney general fired several senior deputies in violation of the Texas Whistleblower Act.

The law was written to protect employees who report suspected wrongdoing by their superiors from retaliation.

Under questioning by Paxton lawyer Amy Hilton, defense witness Henry de la Garza, human resources director at the attorney general’s office, testified that he recommended firing four Paxton deputies who reported their concerns about Paxton’s behavior to the FBI: Mark Penley, David Maxwell, Blake Brickman and Ryan Vassar.

De La Garza argued that they were “high-level policymakers” who were exempt from the whistleblower law, which he said applies only to employees hired through the merit-based civil service system. He added that under Texas law, employers can fire non-union employees without cause.

He said several of the employees violated the agency policy prohibiting insubordination, and he recounted how he had advised in memos that they be terminated. De la Garza denied that the whistleblowers were fired in retaliation for going to law enforcement.

And De La Garza said that it was First Assistant Brent Webster, not Paxton, who ultimately fired the whistleblowers. Paxton hired Webster after Jeff Mateer, his previous chief deputy, resigned after joining the others who were talking to the FBI.

Prosecution lawyer Daniel Dutko pointed out that the attorney general’s office had made a similar argument to a Texas appeals court as it considered a lawsuit filed by four of the whistleblowers. The court ruled that the former employees could sue Paxton under the state whistleblower act.

“So when the senators are deciding whether this is a valid argument or not, they can disregard it, right?” Dutko asked De la Garza.

“I defer to the Senate to do the right thing,” the human resources director responded.

— Zach Despart

House impeachment managers have dropped their proposal to automatically disqualify Ken Paxton from holding state office in the future if he is convicted.

Lt. Gov. Dan Patrick announced shortly after 3 p.m. Thursday that the motion to change the rules had been withdrawn. He did not say why.

The House submitted the motion Wednesday. Any change to the trial rules requires 24-hour notice, so the motion was expected to come up for a vote Thursday. Approval would have required support from two-thirds of senators.

Paxton’s lawyers had opposed the motion, saying that combining the removal and disqualification votes would have gone against precedent.

— Patrick Svitek

Ken Paxton’s defense lawyers called their second witness Thursday: Austin Kinghorn, an attorney and the current deputy attorney general for legal counsel.

As Paxton lawyer Chris Hilton kicked off the questioning, Kinghorn presented himself as a proud deputy who has not seen any of the wrongdoing alleged in the articles of impeachment. On cross-examination, House lawyer Erin Epley worked to undermine Kinghorn’s credibility, getting him to say he viewed the attorney general as his legal client.

“I accepted a promotion in this agency at a very critical time, and I assured myself and I assured my wife if there were ever anything I saw that were illegal or unethical, I would step away,” Kinghorn told Hilton. “I’m still here. I’m proud of the work we do. I’m proud to serve General Paxton. I’m proud to be part of this agency.”

When Epley took over, she zeroed in on a remark Kinghorn had made to Hilton describing the office as Paxton’s “law firm.” Pressed on that, Kinghorn said the “most important part of my job as a public servant is to faithfully serve my principal and the people of Texas.”

That prompted Epley to ask Kinghorn who he thought his client was. He replied: “The attorney general.”

“Would you believe me if I told you that when you work for the office of the attorney general, you are under his authority … but your client is and only ever is the state of Texas?” Epley asked.

Kinghorn did not answer. Hilton cut off the line of questioning with an objection that Lt. Gov. Dan Patrick sustained.

— Patrick Svitek

Ken Paxton’s defense team used their first called witness to attack the allegation that Paxton improperly provided real estate investor Nate Paul with sensitive information about an FBI investigation into his faltering business empire.

Justin Gordon, the head of the open records division in the attorney general’s office, was asked by Paul’s attorney about a series of records requests and disputes that were handled by his office in 2020. Gordon said there were numerous procedural “violations” or “irregularities” in the way that the FBI — as well as the Texas Department of Public Safety, which was involved in a raid on Paul’s home and businesses — responded to multiple requests by Paul’s attorney for the information.

Among other issues, Gordon said, the FBI missed deadlines and heavily redacted one of its responses to Paul’s requests, which Gordon said would have made it difficult for Paul’s attorney to dispute the rationale for withholding the records.

Gordon said he met with Paxton to discuss whether to release the documents — the first time Paxton had ever involved himself in a DPS records request, he said — but did not feel that the attorney general was pressuring him to do so. Rather, Gordon said, his office considered the “unique” irregularities in law enforcement’s handling of the requests and decided that siding with the FBI and DPS “could have been seen as condoning” heavy redactions and other issues in the future.

— Robert Downen

Ken Paxton’s defense team called its first witness Thursday morning: Justin Gordon, the head of the open records division in the attorney general’s office since 2015.

It’s a change from Wednesday evening, when Paxton’s lawyers called Michael Gerhardt to testify. He is an impeachment expert at the University of North Carolina at Chapel Hill, but he never spoke before the trial was adjourned.

Paxton’s lawyers did not explain the change in their first witness.

Two of the articles of impeachment involve Gordon’s division. They allege Paxton abused and misused the open records process to help Nate Paul, the Austin real estate investor and Paxton campaign donor whose relationship with Paxton is at the center of the case.

— Patrick Svitek

Lt. Gov. Dan Patrick announced Thursday morning that suspended Attorney General Ken Paxton’s defense team has a large time advantage over the House managers as they start calling their own witnesses to mount a defense in the impeachment trial.

Paxton’s lawyers have 8 hours and 38 minutes left. Meanwhile, the House impeachment managers have a little more than two and a half hours.

Each side was given 24 hours to present evidence and question and cross examine witnesses.

After the defense rests their case, each side will have one hour of rebuttal time and one hour each for closing arguments.

— Kate McGee

Former President Donald Trump has broken his silence on the Texas Senate impeachment trial of his longtime ally Ken Paxton.

In a social media post late Wednesday night, Trump said “establishment RINOs” — Republicans In Name Only — “are trying to undo” the attorney general’s reelection in 2022 “with a shameful impeachment of him.” He raised the possibility that if permanently removed from office, Paxton could be replaced by a “Democrat, or even worse, a RINO.”

If Paxton is convicted, Gov. Greg Abbott, a Republican, would get to appoint his successor until a special election next November.

Trump had blasted Paxton’s impeachment by the House in May, but he stayed quiet in the lead-up to the trial and during its first six days. The presiding officer of the Senate — and of the trial — is Lt. Gov. Dan Patrick, another close Trump ally.

Trump’s post, made on his social media platform Truth Social, did not mention Patrick or the Senate but served as a vocal reminder of his opposition to the overall process.

— Patrick Svitek

Suspended Attorney General Ken Paxton’s impeachment trial is expected to resume at 9 a.m. Thursday with testimony from his defense team’s first witness.

Prosecutors rested their case Wednesday afternoon — but they did so accidentally, setting off a chain of events that included a defense motion to dismiss the articles of impeachment as unproven by the prosecution. However, Paxton’s lawyers withdrew their motion for a directed verdict while senators stepped away to debate the motion privately.

Earlier Wednesday, Paxton’s former executive aide, Drew Wicker, testified that he grew increasingly uneasy with Paxton’s behavior in 2020 — and particularly with his close relationship with Nate Paul, an Austin real estate investor and political donor.

Wicker recalled a conversation between Paxton and a contractor about a kitchen renovation at Paxton’s Tarrytown home in which the contractor said he needed to “check with Nate” about changes that would add $20,000 to the cost. Paxton’s lawyer produced two photographs of Paxton’s kitchen, one taken before the renovation in 2020 and the other from last month. Wicker confirmed they showed no changes to the counters, cabinets or stove.

The day began with prosecutors calling as a witness Laura Olson, who according to testimony had an affair with the married Paxton. However, Lt. Gov. Dan Patrick, the trial’s presiding officer, announced that Olson would have to testify in the afternoon because she had not been given 24-hour notice. Patrick later said both sides had agreed that Olson was “deemed unavailable” to serve as a witness.

Olson’s relationship with Paxton is central to the impeachment case. House managers allege that Paxton misused his office to help Paul; in exchange, Paul hired Olson to work at his business so she could be closer to Paxton.

— Alejandro Martínez-Cabrera

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Correction, Sept. 14, 2023 at 5:41 p.m.: A previous version of this story misidentified the Paxton lawyer who questioned Henry de la Garza, human resources director for the attorney general's office. The lawyer's name is Amy Hilton.