Ken Paxton impeachment defense rests after calling 4 witnesses

Tony Buzbee, the lead defense lawyer for Attorney General Ken Paxton, listens to testimony during Thursday's impeachment trial before the Texas Senate. (Eddie Gaspar/The Texas Tribune, Eddie Gaspar/The Texas Tribune)

The Texas Tribune is your source for in-depth reporting on the Ken Paxton impeachment trial. Readers make that possible. Support authoritative Texas journalism with a donation now.

Ken Paxton’s defense team rested their case Thursday evening after a full day of testimony in which they attacked several of the 16 impeachment articles and downplayed the suspended attorney general’s conduct as merely a part of his duties.

The prosecution and defense will present closing arguments beginning at 9 a.m. Friday, after which the rules call for senators to deliberate in private before emerging to cast votes on each of 16 articles of impeachment.

Support from 21 senators — two-thirds of those eligible — is required to permanently remove Paxton from office on any article. If an article is sustained, a separate vote would be held on whether to ban Paxton from again serving in state elected office.

Each side was given 24 hours to present their cases, and Paxton’s attorneys began Thursday with more than eight and a half hours remaining — compared with just over two and a half hours for the House impeachment managers. Over the course of the trial’s nearly two weeks, Paxton was accused of going to great and illegal lengths to help his friend and donor, real estate investor Nate Paul, despite repeated warnings from top deputies in his office who later reported him to the FBI for bribery. Meanwhile, Paxton's lawyers focused most of their time and energy on questioning prosecution witnesses.

On Thursday, they used their remaining time to call four current agency executives who defended Paxton from claims that he had abused his office to the detriment of the state and Texans.

Paxton’s attorneys responded Thursday by arguing that Paxton’s conduct was not only legal, it was justified — and that former top deputies-turned-whistleblowers were insubordinate, ineffective and, ultimately, deserved to be fired in late 2020.

The first defense witness was Justin Gordon, the head of the open records division in the attorney general’s office, who testified that there was little merit to House claims that Paxton pressured the office to improperly release sensitive information about a 2019 FBI raid on Paul’s businesses and home.

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

Siding with the FBI in the dispute, Gordon said, “could have been seen as condoning” its behavior and disadvantaged Paul in an ongoing lawsuit.

Also called to the stand was Henry De La Garza, human resources director for the attorney general’s office, who testified that the agency was justified in firing the whistleblowers who reported Paxton to the FBI for bribery in late September 2020. Earlier in the trial, House impeachment managers had framed the former deputies as sterling conservatives, driven by conscience to report Paxton’s repeated deceptions and abuses of power to help Paul.

In one impeachment article, House managers accused Paxton of firing the whistleblowers in violation of the Texas Whistleblowers Act. Another article said Paxton sought to conceal “wrongful acts” outlined by the whistleblowers by settling their lawsuit for $3.3 million.

De La Garza painted a different picture, saying the whistleblowers flouted an agency rule that prohibits the use of an insubordinate or unprofessional tone toward management. In addition, he said, Texas is an at-will employment state, meaning employees can be fired without cause.

“You can be fired for any reason,” he said.

De La Garza also said Paxton was not the one who fired them. He said it was Brent Webster, who Paxton brought on as his second-in-command after firing Webster’s predecessor-turned-whistleblower, Jeff Mateer.

On cross-examination, House lawyer Daniel Dutko argued that De La Garza’s claims were untrustworthy because they relied on what he was told by Webster, a close Paxton ally.

"I have to rely on the facts presented to me,” De La Garza responded before saying that “it could affect my analysis.”

Paxton’s attorneys also attacked an article alleging that Paxton directed his agency to conduct a “sham” investigation that exonerated him of any wrongdoing in the whistleblower matter. For that, they called Austin Kinghorn, the current deputy attorney general for legal counsel.

Kinghorn testified that he played a direct role in crafting the report and insisted there was nothing improper about it. Kinghorn also said Paxton had broad authority to act how he wants as attorney general, including wide-ranging access to documents in the agency’s possession.

“His name is on the wall. It’s his agency, and he’s the duly elected attorney general,” Kinghorn said. “So it’s his law firm. He gets to see a file if he wants to see it.”

On cross-examination, House lawyer Erin Epley seized on those comments, asking Kinghorn if he viewed the attorney general — rather than the state of Texas — as his client.

“The attorney general,” Kinghorn responded.

Epley then asked Kinghorn whose interest he would prioritize if there was a conflict: The state’s, or Paxton’s?

“I do not see them in conflict,” he responded.

The Texas Tribune Festival is almost here! Join us Sept. 21-23 in downtown Austin for 125+ unforgettable conversations featuring nearly 300 speakers. Be there for Texas’ biggest politics and policy event when you buy your tickets today.