Magazine | August 28, 2017, Issue

Prosecuting Politics

Texas attorney general Ken Paxton (Robert Daemmrich Photography Inc/Corbis via Getty Images)
In Texas, criminal law is being twisted to destroy officeholders

Something is very wrong with Texas politics. Its prosecutors have a disturbing habit of filing dubious criminal charges against Republican politicians—sometimes through complaints filed by angry Democrats, sometimes through complaints filed by angry Republicans. It’s a sad and sordid story.

In 1994, Travis County prosecutors indicted Republican U.S. senator Kay Bailey Hutchison and then—oddly enough—refused to present evidence against her at trial. Next in the crosshairs was Tom DeLay, then the majority leader in the U.S. House of Representatives. Travis County prosecutors actually secured a conviction, only to see it overturned by the Texas Court of Appeals in 2013.

Governor Rick Perry’s turn came in 2014. The Travis County district attorney (for those keeping score, Travis County covers the Austin urban area—one of the bluest sections of Texas) obtained a “first-degree felony” indictment against Perry for alleged “abuse of official capacity.” His alleged crimes? Threatening to veto funding for the state’s “Public Integrity Unit” and attempting to remove the Travis County district attorney from office after she was arrested for drunk driving. In other words, the governor was doing his job. The case dragged on for almost 18 months, until a court dismissed the last remaining charge in 2016.

Each of these cases features its own twists and turns. Each of them is replete with prosecutorial abuses and political vendettas. But for sheer strangeness, for sheer head-scratching oddity, nothing quite matches the current criminal case against Texas attorney general Ken Paxton, a longtime Republican state legislator and tea-party favorite who was elected to his statewide office in November 2014. By July 2015, he was indicted on securities-fraud charges that could theoretically send him to prison for 99 years.

What did Paxton do? A former friend and Republican legislative colleague named Byron Cook claimed that Paxton sold him shares in a company called Servergy without telling him or other investors that Paxton wasn’t investing in the company but rather had received compensation from the company for obtaining investors. There was no claim that Paxton cost Cook any money. There was no claim that Paxton lied to Cook. Instead, the fundamental complaint is that Paxton should have disclosed to Cook and other investors his own arrangements with Servergy.

This, the prosecution alleges, is a “first-degree felony.” This, the prosecution alleges, should send Paxton to prison for decades.

The second claim against Paxton is that he rendered service as an “investment adviser representative” before he formally registered as an IAR with the Texas securities commissioner. While it’s true that Paxton later registered with the commissioner and paid a small fine for failing to register, the prosecution’s case is extraordinary—essentially seeking to impose a jail sentence without having to prove criminal intent. In other words, it’s attempting to impose strict liability. If it can prove that Paxton wasn’t registered, it seeks to impose criminal penalties regardless of whether there’s any evidence that Paxton had criminal intent. Moreover, Paxton claims that his firm was already registered with the Securities and Exchange Commission and that the relevant federal laws governing registration preempted the state registration requirements. Paxton claims that he registered with the state only out of “abundance of caution.”

But these are the dry facts of the indictment. Lurking beneath is a lurid tale that includes irregularities with the grand jury, strange judicial conduct, flamboyant prosecutors, and, soon, a trial in Houston that seems engineered not to seek justice but to coerce Paxton to resign.

The story begins, of course, in Travis County. A nonprofit group called Texans for Public Justice first asked the Travis County DA to prosecute Paxton. The Travis County prosecutor declined, concluding that since the alleged events didn’t occur in Travis County, the county likely didn’t have jurisdiction. So the effort shifted to Collin County—Paxton’s home, where the legal procedures immediately tripped into the land of the bizarre.

First, after the Collin County district attorney recused himself from the case, the first judge involved in the case, Scott Becker, departed from normal practice and appointed two Houston defense attorneys, Kent Schaffer and Brian Wice, to serve as special prosecutors. Both men are prominent Texas lawyers, and Schaffer in particular has achieved notoriety for representing members of the Bandidos motorcycle gang. Next, Becker lavished the special prosecutors with money. Local guidelines typically limit special-prosecutor compensation to $2,000 for pretrial practice and $1,000 a day for trial, but Becker promised Schaffer and Wice $300 per hour. Within months they’d racked up legal bills that exceeded $600,000, and the total tab will likely approach $2 million.

Next, a second judge involved in the matter, Chris Oldner, impaneled an all-volunteer grand jury—a departure from law and practice that taints the pool by including only those most motivated to serve. A festival of additional irregularities followed. The judge allegedly interacted with the grand jurors to influence their deliberations, details of the sealed indictments were leaked to the press, and the judge’s wife allegedly even sent taunting text messages declaring that she was “gloating” over Paxton’s legal troubles. Soon after these irregularities came to light, Judge Oldner recused himself.

All this, and the case was only days old.

After Oldner’s recusal, a third judge, George Gallagher, stepped to the plate. He promptly turned back Paxton’s attempt to dismiss the case and then, earlier this year, granted the special prosecutor’s motion to move the case to Houston, on the grounds that the prosecutors couldn’t get a fair trial in Paxton’s hometown.

This decision was the result of one of the more unusual motions I’ve ever seen—a 59-page screed that used the fact that Paxton’s friends and allies had publicly criticized the case as “evidence” of a plot to taint the jury pool. It is replete with references to a nefarious group it calls “Team Paxton.” Essentially that includes anyone willing to speak up on the attorney general’s behalf. Publicly criticize the judge or the prosecutors, and you’re on Team Paxton. Use your First Amendment rights to claim that the prosecution is politically motivated? Congratulations, you too are on Team Paxton.

Typically, courts move criminal trials to grant defendants a fair trial. The concern is that pretrial publicity will prejudice the public against the accused, who after all is entitled to the presumption of innocence. An avalanche of publicly incriminating information can, in rare circumstances, lead judges to rule that a trial has to be moved to protect that presumption. In this case, however, the judge moved the trial to help the prosecution, and he moved it not to a nearby court but rather 200 miles away—to Houston, a Democratic jurisdiction located right by the prosecutors’ homes.

Meanwhile, the Obama administration’s Securities and Exchange Commission moved against Paxton. It filed an action remarkably similar to the state criminal-court case, claiming that Paxton defrauded Cook and other Servergy investors by failing to disclose that he was not investing in the company and failing to disclose his own compensation arrangements. A federal court promptly granted Paxton’s motion to dismiss the SEC complaint, gave the SEC a chance to revise its charges, and then dismissed the charges again when even the SEC’s revised complaint proved insufficient.

It’s important not to miss the significance of the federal action. The SEC filed its claims on the basis of the same actions that led to two counts in the state indictment, faced a much lower burden of proof (it had filed a civil, not a criminal, case), and even was entitled at this early stage of the proceedings to the presumption that its factual claims against Paxton were true—and still couldn’t make a legal case against him.

No matter; the state prosecutors soldiered on. But they’d miscalculated. They’d hoped to hold their trials (they intend to try Paxton on the two counts separately) not only in a Democratic jurisdiction but also in front of the judge who’d so helpfully rejected Paxton’s motion to dismiss and granted their request for a change of venue. Unfortunately, Texas law strips a judge of jurisdiction when there’s a change of venue, unless all parties consent. Paxton didn’t consent, and after a brief legal battle, Gallagher was gone.

And that’s not the only prosecutorial setback. In response to a taxpayer lawsuit, the Fifth District Court of Appeals stayed further payments to Schaffer and Wice, and in May the Collin County commissioners voted to stop payments to them. As things now stand, Paxton will face a trial for the less serious charge—of failing to register—on December 11, in front of a new judge, facing prosecutors who might have to work for free.

This strange tale demands the question “Why?” Why try to throw a man in jail for life on a novel legal theory? Why doggedly pursue him through three judges, two courts, and two counties? When the battle was Travis County Democrats versus prominent Republicans, the answer was obvious—partisan politics taken to a dangerous extreme. But in this case the complaining witness is a fellow Republican. The first judge in the case—the one who engineered an irregular grand jury—was a fellow Republican. Don’t these two facts invalidate the Paxton defense team’s belief that the case is a classic Texas political prosecution?

Also, why should this matter to the nation at large? Unlike prosecutorial attacks on U.S. senators, House majority leaders, or presidential candidates, isn’t this just a local political story?

Texas GOP politics is in many ways a microcosm of national Republican politics, and the Texas Republican party is in the midst of a political civil war. Former tea-party insurgents face off against an establishment (one that’s much less focused than they are on the Constitution and cultural issues) in a vicious struggle over the identity of the party and the character of the state. Texas battles over religious freedom and gender identity are making national news, and with the state under one-party rule, the true conflict is no longer between Republican and Democrat but between Republican and Republican.

While the prosecutors deny any political motivation, sources close to Paxton are convinced that the entire case would go away if he either resigned or refused to run for a second term. His opponents don’t really want him to go to jail. They just want him out of power, and if jail is what it takes, then so be it.

Moreover, the intensity of the fight is directly related to the importance of the office. Most Americans don’t closely follow constitutional law, but those who monitor constitutional controversies know that the Texas attorney general has become the de facto leader of a multi-state legal revolt against federal overreach. Texas led the charge against President Obama’s Deferred Action for Parents of Americans (DAPA) program. Texas led the charge against the Obama administration’s directive that publicly funded schools facilitate transgender students’ access to opposite-sex bathrooms and opposite-sex sleeping quarters. And Texas is now set to challenge the Trump administration’s apparent decision to keep in place the Obama administration’s executive amnesty for “DREAMers.” Topple the Texas attorney general, and the forces of federalism lose one of their most effective (and well-resourced) advocates.

In December, Paxton will have his day in court—in a location hand-picked by his opponents. He’s likely to win, but he might lose. Even if he overturns a conviction on appeal, enormous damage will have been done. And if Paxton does lose, expect the criminalization of politics to continue, perhaps accelerate. It “works,” right?

The Paxton prosecution is just one more example of a political culture that is losing its way. Entire movements are captured by the philosophy that the ends justify the means. Want to defeat your political opponent? Charge him with a crime. Want to prosecute the man? Find a judge who’ll manipulate the grand jury. Find a jurisdiction that’s more favorable. And take all the money from taxpayers that you can.

It’s unjust. It’s vengeance in pursuit of power. It’s eating America alive.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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