The unnecessary Texas impeachment

Texas House’s impeachment of Paxton was bad form, bad precedent, and unneeded.

A necessary preface: I have found many people, including elected officials, unable to understand, or accept, that one can vehemently oppose the use of impeachment in the case of Attorney General Paxton, as well as how the House used such power, and not be making any statement on whether or not Mr. Paxton is guilty of any crime or malfeasance in office. Sadly, some people seem incapable of being able to separate the issues involved, and because they believe Paxton is bad or guilty, any means of punishing him is, to them, justified action. That is believing ends justify means and is inherently un-American and dangerous.

In an unethical third world- or Soviet-style show trial production, members of the Texas House took fewer than 48 hours from a committee vote to convene and issue only the third impeachment in Texas History.

The pro-impeachment forces had months to prepare, in secret, with taxpayer paid staff in a Star Chamber-like committee environment. The anti-impeachment, or questioning forces, had nothing exculpatory provided them and only about 24 hours to even consider what to say.

This process, in the form it has taken at the direction of Speaker Dade Phelan, is an embarrassment of international proportion and state representatives who went along with it demonstrated a negligent disregard for Americanism and their duty of deliberation; leaving aside the fundamental issues related to due process.

This unique method and use of impeachment power is unprecedented and dangerous by setting a precedent that gives the Speaker of the House, any speaker of any party, and his personally selected cabal, unprecedented power to significantly intimidate any state elected official, including other members of the House through secret one-sided investigation devoid of any process that protects the target from malicious innuendo, lies, and the lot of things done by some to political and personal enemies.

And worse yet, this House precedent will now be in full force and yet likely unseen, or secret, in most all cases – its damage will be done in most cases without ever being disclosed publicly. This is why our American experience has always held secret proceedings to be contemptible in all but the most rare cases of national security. People can easily have careers destroyed, votes and loyalties changed, and a host of other bad things through what is de facto political extortion.

The way impeachment was deployed in the Paxton case is the establishment of an extreme power system in the Texas House that makes the Speaker and those in his immediate circle so powerful that it dilutes not just the votes of the people but also of the elected members of the Legislature.

Legislators are already afraid that casting a vote for a non-winning speaker will render their legislative session a failure, so imagine what chilling affect will exist knowing that the House’s own committee, formed and controlled by a speaker, might launch secret investigations of members who cross leadership. Just the announcement of such an investigation could ruin a political career.

image: Paxton

Texas A.G. Ken Paxton

When you hear elected officials who cite Mr. Paxton and the unproven, but possibly true, allegations as justification for this travesty, you are listening to either: Intentional misdirection from how the use of impeachment has been unfairly and dangerously used by the 88th Legislature in order to self-absolve for this travesty of anything even loosely related to justice in the American sense. Or you are talking with people who have understanding, wisdom, or intellect too low to serve as a representative in a successful republic as they cannot understand that preservation of the integrity of the republic and its principles is always of greater importance than the circumstances of any one person or situation.

 I make this harsh assessment because some of those who voted for impeachment made clear that they did so solely because the allegations, one-sided you’ll remember, appeared significantly egregious. They did so in a process done so fast that authentic deliberation of the investigation and allegations, a fundamental job of legislators, was made superfluous. It’s as if they acted the part of the most ignorant in our society who, when prosecutors massively overcharge suspects and subject them to media perp walks, declare those subjects guilty without even a thought toward the presumption of innocence or the bias of those levying the charges.

These people cannot understand the idea that this embarrassing abuse of the process is wholly separate from any allegations or suspicions of Mr. Paxton, or anyone else. Instead, the issue is about how this almost never used, extreme power was wrongly deployed by House leadership:

  • A surprise announcement of a secret investigation, not open to members, and which took only un-sworn testimony (which is meaningless hearsay and encourages exaggeration and lying to settle scores) and forcefully excluded evidence that ran contrary to leadership’s predisposition;
  • a one-sided media show that quickly followed at which leadership’s handpicked politicians painted the subject as guilty of most everything except national treason (and which most media, no friends of Paxton, pointed out little new information was uncovered and presented by that committee that had not already been reported long before;)
  • a vote of the Star Chamber-like committee to recommend impeachment after again refusing to hear opposing evidence, and then;
  • in fewer than 48-hours a trial on impeachment in the House in which pro- and anti-, or questioning, forces were to debate with even time.

And to correct an often-repeated fallacy: It was not a grand jury proceeding but a debate on impeachment, a deliberation, which is completely a political action; the Senate holds a trial on the merits of the impeachment issued by the House and that trial is not a finding of criminal or civil guilt or innocence. It is a wholly political issue of whether one set of politicians believes there is enough bad behavior, in their opinion and not required to be based on fact, on the part of another politician to justify overruling voters of the state and removing that target from office. (This is true no matter how much the Senate rules and procedures mimic a judicial trial – it is quasi-judicial but not actually such and there are no appeals possible for violations of the rules.)

image: Texas House of Reps.

Texas House

Also, members of the House had a responsibility not to judge the seriousness of the charges coming from the Speaker’s Star Chamber-like committee but to judge whether, based on preliminary evidence, such charges were warranted.

Given that the investigation was kept secret from members until being announced and that they were voting on impeachment later the same week, it is reasonable to conclude that little to no look was given by legislators to the quality of the evidence. That means that what tiny bit of time was given to impeachment deliberation on a Saturday afternoon was focused upon the “seriousness of the charge” as opposed to the reliability of the evidence from the one-side only secret investigation.

In 2014, the great, late Rush Limbaugh addressed this later day process in a commentary titled: For the Corrupt Democrat Media “The Seriousness of the Charge” is the Story. Sadly in the Paxton case, our Texas legislators operated like the media and treated this issue as the Steele dossier and the whole fantasy of Trump-Russia collusion.

Timeline of the slapdash impeachment enterprise:

  • Tuesday, 23 May 2023: The Texas House Committee on General Investigating says it has been secretly investigating Paxton for months and claiming the justification was because the A.G. had properly and legally asked the legislature for funds to pay a $3.3 million settlement to end litigation with so-called whistleblowers who were fired from the Office of Attorney General way back in 2020. The committee held a one-sided media show after which even the state’s Paxton-hating media admitted that little, if anything, new was presented that had not already been reported well before the 2022 election.
  • Thursday, 25 May 2023: The same Star Chamber-like House committee voted to recommend impeachment of Texas’ attorney general sending the matter to the House floor.
  • Saturday, 27 May 2023: The House took up a pro and con debate over the impeachment report from the committee. Ultimately it voted 121-23 to impeach which immediately removed Paxton from office until the Senate speaks on the matter. Only one Democrat, Harold Dutton, Jr. did not vote for impeachment but voted “present, not voting.” 23 Republicans voted against impeachment including former Speaker of the House Tom Craddick of Midland. The rest followed Phelan’s leadership team of Democrats and Republicans.

Not only did the House wield the surprise denouncement of the Attorney General and impeachment power in a manner that makes a mockery of general American principles of due process or fairness (the amazingly rushed push-it-through before anyone has time to reflect or prepare for debate is an undeniable example of such,) House leadership launched this debacle in the pressure packed last week of the 140-day legislative session even though it has the right to convene for impeachment at any time outside of the time pressures of the regular session.

Was this late-hour rush so that members would mostly go along with the matter and be less likely to object to the shockingly hurried process? Probably, but even if not, it was beyond irresponsible to introduce such an extreme and weighty action into the House calendar during the final days when the body didn’t even have time to consider and pass bills such as property tax relief.

As a comparison, take the last impeachment issued by the Texas House in 1975 against rancher, district court judge (229th), and Duval County political dynasty boss O. P. Carrillo. The San Antonio Express-News reported how that use of the most serious power of impeachment played out in the House:

“In 1975, then-state Rep. Terry A. Canales, a Democrat from Alice, put forward a resolution calling for Carrillo’s impeachment for abuse of office. The select committee was formed to investigate the judge’s conduct. It gathered evidence and took testimony from 32 witness[es] during 70 hours of public hearings. The committee’s “Statement of the Facts” filled 15 volumes. In July 1975, the committee adopted 11 articles of impeachment against Carrillo, and the full House followed suit in August.”

Compare that with how the state’s duly elected Attorney General was treated by the current House and its leadership and note that nothing in 1975 was done in secret. It was all as the legislature should work: In public and with time, over two months, for true deliberation.

Another problem with the decision to use impeachment, a thing done only twice in Texas’ history despite many scandals and scoundrels, is that it has a bunch of ambitious, partisan politicians, with political scores to settle, substituting themselves for proper law enforcement investigation, courts, and juries.

Despite the moniker of “chief law enforcement officer of the state,” the attorney general does not run, control, or have much of any authority over the state’s Department of Public Safety and its highly esteemed Texas Rangers. The A.G. also has zero authority over federal law enforcement such as the FBI. Thus, there appears to be no reason why law enforcement could not investigate the attorney general and take any evidence to prosecutors (also not under the power of the A.G.) and move a case in a normal manner.

In fact, there are several data points of evidence that agencies including the FBI have looked into at least some of the matters covered by the House’s secretive investigative committee. Impeachment should be a last resort in this type of case in which the issues alleged are generally criminal in nature as opposed to political such as having an attorney general, for example, who refuses to carry out state laws passed by the legislature and signed by a governor.

Need more evidence that there is no barrier to having this type of case handled by law enforcement as opposed to a political body?

The last two Democrat Texas attorneys general were both investigated and indicted through standard law enforcement practice.

Jim Mattox was indicted for bribery, prosecuted in Travis County, and acquitted by jury after a long trial.

Serving as Texas Attorney General after Mattox was Dan Morales who oversaw the landmark financial settlement with tobacco companies. Morales ended up pleading guilty in federal court for conspiring to break the law to get a piece of the huge attorney fees in that huge settlement between Texas and tobacco firms.

No evidence has been presented that the extreme action of impeachment was needed due to law enforcement being unable to investigate or act. Nor have we seen consideration by House leadership of how impeachment may hamper any state or federal investigation into Paxton or, the idea that it is possible that law enforcement investigations have gone nowhere because the evidence, when considered in total not just one-sided, does not support further action.

Is there a use for impeachment in this current case of the attorney general?

Possibly, but the point is that if such a grave and seldom used power is invoked by the legislature, it should be done with appropriate veneration for the seriousness of the process; done in such a manner that does not create a new political weapon for House speakers to use to intimidate and punish political enemies; and, in a manner with a fairness of timeline, investigation, and legitimate House debate as opposed to the slapdash and slanted performance put on by Speaker Phelan and 121 members.

In short, members should have voted against impeachment on Saturday, 27 May, not because they thought the subject of such not guilty of anything justifying such, but because the process was ridiculously hurried, put before the House at the wrong time, and done in a manner that made of mockery to the world of Texan’s commitment to fair, transparent, government.

Update after the Senate found Paxton NOT GUILTY of all articles of impeachment: A scathing rebuke of the Texas House by Lieutenant Governor Dan Patrick that echoes my early commentary, above, regarding the indefensible actions of Speaker Phelan and the Texas House of Representatives (begins about 1:50.00)

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