Ken Paxton will not testify at impeachment trial, defense attorney says

Texas Attorney General Ken Paxton makes a statement to the press May 26, 2023, a day before the impeachment vote in the Texas House. (Bob Daemmrich For The Texas Tribune, Bob Daemmrich For The Texas Tribune)

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The lead attorney for suspended Attorney General Ken Paxton said his client will not testify in his upcoming impeachment trial in the Texas Senate.

Paxton’s defense lawyer, Tony Buzbee, made the announcement in a late Monday night statement on the eve of the July Fourth holiday. The Senate could still try to force Paxton to testify, but the statement makes clear Paxton would fight such efforts.

“We will not bow to their evil, illegal, and unprecedented weaponization of state power in the Senate chamber,” Buzbee said of the House. A spokesperson for the chamber did not immediately respond to a request for comment on the defense team’s statement.

The House voted to impeach Paxton in late May, accusing him of a yearslong series of crime and misconduct. Most of the 20 articles of impeachment center on allegations from former deputies that Paxton misused his office to help a wealthy campaign donor and Austin real-estate investor, Nate Paul.

Paxton was immediately suspended from office, and the Senate has scheduled a Sept. 5 trial on whether to permanently remove him.

Late last month, the Senate approved rules for the trial that gave the presiding officer — Lt. Gov. Dan Patrick for now — the “power to compel the attendance of witnesses.” The presiding officer can also issue subpoenas at the request of one of the parties or its lawyers.

[Ken Paxton’s impeachment trial will begin Sept. 5, with his attendance required]

The rules ran counter to a number of things Paxton’s lawyers had lobbied for, including prohibitions on witness subpoenas and live testimony.

After the House impeached him, Paxton said he was looking forward to a fair trial in the Senate. While Buzbee’s statement exclusively criticizes the House, it marks the first time Paxton has demonstrated any kind of resistance to the Senate’s handling of his impeachment.

Whether Paxton would testify in the trial has long been a source of speculation given his ongoing legal battles — and the potential he could provide information to the Senate that complicates those cases. He has been indicted on securities fraud charges since 2015, and the FBI began investigating the claims by whistleblowers in his office after they came forward in 2020.

In early June, about two weeks after Paxton’s impeachment, Paul was indicted on charges he made false statements to financial institutions. Paul and Paxton lawyers have said the case has nothing to do with Paxton.

Buzbee’s latest statement returns to a familiar argument from Paxton’s team that focuses on the House impeachment process rather than specific allegations.

“​​The House has ignored precedent, denied him an opportunity to prepare his defense, and now wants to ambush him on the floor of the Senate,” Buzbee said. “They had the opportunity to have Attorney General Paxton testify during their sham investigation but refused to do so.”

In criticizing the impeachment as “illegal,” Buzbee appears to be calling back to Paxton’s argument that the impeachment is invalid because a state law says a state officer cannot be removed from office over something they did before their “election to office.” Paxton has argued that applies to anything he did before he was reelected last year; the House has argued the so-called “forgiveness doctrine” does not apply to impeachment at all.

Even if Paxton does not testify at the trial, it could still include high-profile testimony. One of the whistleblowers, Blake Brickman, said last month he hoped to testify in person. At the time, the trial rules were still being crafted, and Paxton was voicing optimism that the Senate would give him a fairer venue than the House.

“After the House impeachment vote, Paxton claimed he wants a ‘full accounting of the truth,’” Brickman said in a statement at the time. “This begs the question: Will Ken Paxton agree to testify on his own behalf? Or will Ken Paxton continue to be a coward and hide behind his lawyers and their bogus ‘process’ arguments?”

Disclosure: Tony Buzbee has been a financial supporter 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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