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After closing arguments in the impeachment trial of Texas Attorney General Ken Paxton, the lawyers who led the prosecution were riding high and feeling positive about the prospects of a conviction.
“We mistakenly believed that, when we went to bed that night, we thought we had won,” Rusty Hardin said Saturday morning during a panel discussion at The Texas Tribune Festival in downtown Austin.
Any hopes were dashed the next morning when the first article of impeachment received support from only 14 senators, well short of the 21 needed to permanently remove Paxton from office, said Dick DeGuerin, Hardin’s co-counsel.
“I think a lot of us were naive enough to think that principle would win out over politics, but at the first vote I knew that it was over,” he said.
Defeat was a bitter pill, DeGuerin said, because prosecutors believed they had made the case that Paxton misused the power of his agency to help a friend and political donor, Austin real estate investor Nate Paul.
What caught the prosecutors off guard, however, was when Lt. Gov. Dan Patrick stepped away from his role as the impeachment judge to close the trial with a speech blasting the House’s handling of the matter as rushed and unfair to Paxton.
“I was not prepared for a diatribe,” impeachment prosecutor Erin Epley said.
“I think that was the most classless political moment that, in my life, I’ve ever experienced,” Hardin added.
The impeachment prosecutors on the panel, including former Texas Supreme Court Justice Harriet O’Neill, said Patrick was courteous when he privately met with lawyers for both sides to hear arguments about motions. That speech, however, raised serious questions about Patrick’s impartiality and perhaps explained why Patrick, as judge, tended to uphold defense arguments to exclude testimony based on hearsay while overruling prosecutors’ hearsay objections, DeGuerin said.
Hardin agreed. “You cannot match impartiality with that speech at the end,” he said. “On some rulings, looking back, you realize what was going on.”
Epley, who rose to prominence during the trial with crisp and energetic questioning, also discussed the behind-the-scenes ruling that blocked testimony from prosecution witness Laura Olson, the woman identified by several witnesses as the married Paxton’s girlfriend.
Patrick, responding to criticism that he had stopped Olson from appearing at the trial, said Friday that he never ruled on Olson’s request to quash the subpoena ordering her to testify. Instead, he asked lawyers for both sides if they could come to an agreement, adding that Epley came up with the language eventually used in court — that Olson was present in the Capitol but unavailable to testify.
That account, Epley said, was true — to a point.
Olson indicated that she planned to take advantage of her Fifth Amendment right to avoid testifying on matters that could incriminate her, and much of the 20-minute private conversation centered on that scenario, Epley said.
The situation changed, however, when Patrick announced that he was going to grant Olson’s motion to quash the subpoena, she said. The “present but unavailable” language was suggested as a way to inform senators and the public that Olson wasn’t voluntarily freed from testifying “when it became clear a ruling was not going in our favor,” Epley said.
In the days since his Sept. 16 acquittal, Paxton has gone on a media tour of right-wing outlets to criticize the impeachment process, calling it fraudulent and “four months of wasteful and destructive political theater.”
In a written statement marking his return to office, Paxton equated impeachment proponents with those working to “destroy our beloved nation.”
“Future generations will have nothing if we cannot save our country from corrupt, tyrannical, power-hungry politicians,” he said Friday.
The four impeachment prosecutors said they believed Paxton was deserving of removal from office, adding that they hoped prosecution exhibits — which were not shown to viewers of the trial’s webcast — will be released so members of the public can reach their own conclusions.
In the end, however, the lawyers agreed that the decision on Olson, the hearsay objections and tight time limits did nothing to change the outcome as 16 of 18 Republican senators voted to acquit Paxton.
The acquittal was a triumph of politics over facts, DeGuerin said, calling it an “unfair result that was based on politics and not on principle.”
Hardin pointed to reports that several Republican senators were leaning toward a conviction, only to vote to acquit when it became apparent during private deliberations that they were short of the 21 votes needed to remove Paxton from office.
“I think it came much closer than, obviously, than the final vote,” Hardin said. “So I think in reality we got closer than we thought, but as Dick said, it’s very hard to get political people to make a nonpolitical decision.”
In a separate but related TribFest panel Saturday, state Rep. Ann Johnson, a Houston Democrat and vice chair of the House General Investigating Committee that drafted the articles of impeachment, criticized Paxton defenders for blaming the attorney general’s troubles on a “conspiracy theory of [Texans for Lawsuit Reform], Joe Biden and the Bush dynasty, which apparently now is dead.”
“We spent a lot of time looking at facts,” she said.
The General Investigating Committee followed House rules and conducted its two-month review of Paxton in secret, revealing its focus in May during the closing days of the regular legislative session, Johnson said.
Asked when Paxton became aware he was under investigation, Johnson said: “I think he became aware of it the morning that we announced it because he showed up in two Republican GI members’ offices at that point and flat out asked. ‘Am I under investigation?’”
Later that day, but before the investigation was revealed publicly, Paxton accused Speaker Dade Phelan of presiding over the House while drunk and demanded that the Beaumont Republican step down.
In another panel Saturday, Rep. Jeff Leach, R-Plano, one of the Texas House impeachment managers, defended the choice to prosecute Paxton, a friend and neighbor who attends the same church in Collin County.
“It was my responsibility to do what was asked of me,” Leach said.
Problems with Paxton’s involvement with Paul came to light when the Legislature was asked to pay $3.3 million to settle a lawsuit from four senior Paxton staffers who claim they were improperly fired from the attorney general’s office for reporting Paxton to the FBI, he said.
“Make no mistake, it’s hush money to pay off whistleblowers,” Leach said.
Includes reporting from Keaton Peters.
As The Texas Tribune's signature event of the year, The Texas Tribune Festival brings Texans closer to politics, policy and the day’s news from Texas and beyond. Browse on-demand recordings and catch up on the biggest headlines from Festival events at the Tribune’s Festival news page.