Jul 14, 2023

For Lt. Gov. Dan Patrick, Ken Paxton’s trial is a legacy

In the lead up to Tuesday’s trial, Patrick has been under tremendous scrutiny and pressure as Paxton allies and opponents search for signs of which way he may be leaning

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In the Texas Senate, what Dan Patrick wants — Dan Patrick typically gets.

Widely regarded as one of Texas’ most powerful lieutenant governors ever, Patrick has embraced his reputation as a hard-charging political strategist and kingmaker, known to run roughshod over the Legislature to get his way.

But as the Republican-dominated Senate prepares to take on the historic task of deciding whether to permanently remove fellow Republican and Attorney General Ken Paxton, Patrick is confronting an uncomfortable and unexpected test of his own — fraught with political, legal and ethical landmines.

In the lead up to Tuesday’s trial, Patrick has been under tremendous scrutiny and pressure as Paxton allies and opponents search for signs of which way he may be leaning. And whether he likes it or not, it is turning into a legacy-making moment in the latter years of his career.

“I will be honest: I was concerned that Patrick was gonna put his thumb on the scale,” said Steve Armbruster, the chairman of the Williamson County GOP who opposed his precinct chairs’ resolution condemning Paxton’s impeachment. “Anyone that pays any attention to Texas politics knows that there’s only one vote that matters in the Texas Senate, and that’s the lieutenant governor’s.”

Politically, there are no easy paths for Patrick. If he oversees Paxton’s removal, it will anger a faction of conservatives to which Patrick has long owed his political career. If Paxton’s acquitted, it would affirm skeptics’ suspicions of Patrick’s bias in favor of the attorney general all along. Those concerns metastasized with the revelation that Patrick accepted $3 million from a pro-Paxton group in late June.

An acquittal would also further inflame tensions between Patrick and Phelan’s House, where House Republicans put their political capital on the line when they overwhelmingly voted to impeach Paxton for abuses of office.

Those who know Patrick well say he is working hard to rise to the moment. Sherry Sylvester, a former top adviser to the lieutenant governor, said he has “worked harder to prepare for this than anything I have ever seen him do.”

“[His] goal is to preside over a fair and unbiased process that reflects the integrity of the Senate and is befitting this historic moment in Texas history,” Sylvester said in a statement. “The rule making process so far makes it clear that he and the Senate are approaching this with the utmost seriousness.”

Patrick’s campaign did not respond to a request for comment. A spokesperson for Paxton also did not respond to a request for comment.

Patrick and Paxton, of course, have plenty of political kinship. They share top donors in the far-right benefactors Tim Dunn and the Wilks family. They are both staunch allies of former President Donald Trump, who spoke out against Paxton's impeachment in the House. And they have both bonded over their dislike for the House speaker, Dade Phelan, who they have criticized for being too conciliatory toward Democrats.

When Paxton was facing a close reelection battle in 2018, Patrick’s campaign gave him a $250,000 boast in the final days, loaning him $125,000 and giving another $125,000 as an in-kind contribution for ads.

But the two are not exactly kindred spirits.

When Paxton was facing a hotly contested primary last year, Patrick initially stayed on the sidelines and raised alarms in Paxton’s circle that he was working to undermine Trump’s support for Paxton, The Texas Tribune reported at the time. Patrick ultimately endorsed Paxton in the primary runoff.

That murkiness around their relationship, combined with all the pretrial events, has fueled perhaps more intrigue than ever around the lieutenant governor, who is otherwise known for being relatively transparent about his plotting at the Capitol. Now, he is playing his cards close to the vest and keeping Austin on edge about how he feels personally.

Does he actually want Paxton to go? Is he just putting on a show before an inevitable acquittal?

The trial rules that Patrick’s Senate issued in June — after a protracted period of deliberation — were the first big sign that Patrick might not let Paxton off easy. The rules rejected some proposals that Paxton’s side had specifically called for, like no live witness testimony.

Even before the Senate approved the rules, Patrick rebuffed Paxton’s fiercest defenders, who had argued the House impeachment process was so broken that the Senate should return the articles to the lower chamber in protest.

“In general, we have to deal with it,” Patrick said at the time.

The House impeachment managers complimented the rules as fair, while Paxton’s team was more muted.

Yet if the rules gave Patrick’s skeptics some new optimism, it was zapped a few weeks later.

Campaign finance reports released in mid-July revealed Patrick accepted $3 million in funding from a political action committee, Defend Texas Liberty, that had been fervently defending Paxton. The funding included a $1 million donation and $2 million loan.

Patrick has declined to comment on the donations. Curiously, he issued the gag order one day before the donation and loan became public. One Democratic state senator, Nathan Johnson of Dallas, did not hold back, calling the funding “obscene” in a tweet that criticized Defend Texas Liberty, not Patrick.

While Paxton’s side initially sought to flatter the Senate with predictions they would take the process more seriously than the House did, his lawyers have shown increasing frustration. His lawyers in a recent impeachment filing demanded that the Senate sanction the House impeachment managers for not complying with Patrick’s discovery orders, saying the only remedy at this point is throwing out the entire case. The filing did not explicitly criticize Patrick or the Senate, but the subtext was clear from Paxton’s side: They believe the Senate is letting the House impeachment managers make a mockery of the process.

Paxton’s allies have been willing to give latitude to Patrick, though they have not scored him perfectly. Some, for example, have objected to the trial rule that prohibits Paxton’s wife, Sen. Angela Paxton, from voting in the trial, arguing it effectively disenfranchises her voters in the process.

“I really think [Patrick]’s done the best he can given the fact this is not a common process he can go back to,” said Abraham George, chairman of the Republican Party in Collin County, where Paxton lives. Plus, Abraham added, both Patrick and Paxton “have similar bases — their politics align a lot — so I think that made it even tougher for him to make sure he does it right.”

Preparation for the trial has consumed Patrick’s summer. He has scaled back public events, campaign fundraising and media appearances.

In one of his few TV interviews since he issued the gag order, Patrick turned heads with a three-sentence comment.

"It’s not a criminal trial. It’s not a civil trial. It’s a political trial,” Patrick said.

The comment came as the two sides were battling one another in pretrial filings, and it was welcome news for House impeachment managers who had been asserting the same view.

After the rules were set, one of Patrick's next big moves was issuing the gag order, prohibiting parties from publicly commenting on a range of topics.

But the gag order has faced numerous challenges. There was Johnson’s tweet, which prompted Paxton’s lawyers to ask Patrick to disqualify Johnson as a juror. There have been multiple apparent leaks to the media, including a leak of witness lists to the Dallas Morning News that were supposed to remain confidential. And Paxton’s team has pushed the envelope with various communication tactics by leaning on a provision of the gag order that allows them to recite information that is already out in the public.

Patrick has not publicly enforced the gag order against anyone and has even raised questions about whether he is following it. While he has declined to comment on the Defend Texas Liberty funding, he sent out a fiery tweet Sunday denying that there were “back-channel” conversations between the Senate and Paxton about the possibility he would resign before the trial.

Patrick’s also taken heat for his selection of counsel for the trial. Earlier this month, he picked Marc Brown, a former state appeals court judge in Harris County, to be his top legal adviser for the trial, but Brown withdrew a day later, citing a donation he had given to one of Paxton’s primary challengers in 2021.

Brown’s decision came after the Tribune asked the former judge and Patrick’s office about the donation. But it also came after Texas Scorecard, a conservative site that is usually friendly to Patrick, published a story alleging a “close relationship” between Brown and House impeachment investigators.

“At some point, Dan Patrick might need to find out why his staff didn’t ask about this fellow’s inbound and outbound donations,” Scorecard publisher Michael Quinn Sullivan said in a tweet. “The due diligence seems to have been non-existent.”

On Monday, Patrick picked Lana Myers, a former state appeals court judge from North Texas, to be his impeachment counsel. Texas GOP Chair Matt Rinaldi, a vocal critic of Paxton’s impeachment, called Myers a “great choice” on Twitter.

Taking it all in, Paxton’s skeptics believe they have, at a minimum, avoided the worst-case scenario: a process glaringly biased in favor of Paxton. Yet they also know Patrick still holds a lot of power — both under the trial rules and more generally as lieutenant governor — and can still slant the process his way if he chooses.

While Paxton’s supporters have not been as critical as Patrick as they have been of Phelan, they have had disagreements with the Senate’s handling of the case.

John O’Shea, a Paxton friend who is running for Congress in North Texas, said he had “a few concerns” about how Patrick has handled his role so far. In a statement, O’Shea said it was his “firm belief” that Patrick should have “remanded” the impeachment to the House due to how shoddily it was handled there. O’Shea also cited the Brown debacle, saying Patrick initially picked a counsel who “recused himself only after it came to light in the news that he had close ties with the House investigators and had contributed to Ken’s primary challenger.”

Angela Paxton’s recusal continues to be a sore spot. The trial rules allow her to attend the trial but says she cannot vote on anything or participate in deliberations.

Paxton’s lawyers had lobbied against such a rule and Angela Paxton voted against the rule package, appearing to cite her required recusal as the reason. Steve Hotze, a conservative activist in Houston who supports Paxton, has sued the Senate to overturn both Angela Paxton’s recusal and the gag order.

After the rules were finalized, Doug Deason, a prominent GOP donor from Dallas who is close with the Paxtons, tweeted that Angela Paxton’s recusal was “a poor decision” by the rule-making committee, which is made up of seven senators.

“Someone wants to be AG,” Deason said.

In an interview last week, Deason said he thinks Patrick, overall, is “taking [his role] seriously and has been thoughtful about it.” But echoing fellow Paxton friends like O’Shea, Deason said Patrick “should have just refused to” accept the impeachment from the House. The lieutenant governor, Deason added, “knows I feel that way.”

“I think he looks at this as as much of an attack on him and the Senate as much as on Ken Paxton,” Deason said. “I think the House, the leadership, did this to put the Senate in this awkward position that they’re now in.”

For Patrick’s critics, the $3 million from Defend Texas Liberty is all they need to know about how the trial will ultimately go. On the flip side, longtime observers of Patrick have speculated he could be looking to cement his all-powerful status in Austin by defying his biggest donors when the spotlight is the brightest.

While Paxton is fighting to retain his job now, the 73-year-old Patrick is not up for reelection until 2026 and may be in the final years of his political career. He said earlier this year that he intended to run again, but it was a reversal of previous statements and speculation persists about whether he is truly committed to another term or just trying to avoid lame-duck status by saying he will seek reelection.

Inside the Senate, it is no secret that multiple GOP senators would run to succeed Patrick when he is done as lieutenant governor. Patrick’s preferences in the trial — or at least the perception of them — could weigh heavily on those senators who may be seeking his blessing one day.

That assumes Patrick remains the presiding officer throughout the trial. The rules give Patrick multiple off-ramps to deemphasize his role in the trial, including the ability to appoint a senator or “jurist” to replace him as presiding officer.

Patrick seems unlikely to do so at this stage, but such wrinkles continue to fuel intrigue around his historic role.

Even Democrats are giving Patrick his space. Asked how seriously the party believes Patrick is taking his role, the Texas Democratic Party provided a statement from chair Gilberto Hinojosa that avoided any shots at the lieutenant governor.

“Texas Democrats have faith that Democratic Senators are taking their responsibility as jurors in the Paxton trial very seriously,” Hinojosa said.

As for pro-Paxton Republicans, they are still largely behind Patrick, hoping he ultimately delivers a comeuppance to the House.

“Lt. Gov. Patrick has acted as a fair and impartial arbiter who has preserved the rule of law, as well as the dignity and stature of the upper legislative chamber,” Rinaldi said, “during this political spectacle that was imprudently forced upon them by a House in disarray.”

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