Ken Paxton impeachment: Accusations of adultery, obstruction dominate Day 5

AUSTIN, Texas - Day 5 of the Ken Paxton impeachment trial was marked with more testimony about alleged abuses of office as well as witnesses testifying about adultery.

Former deputy attorney general Mark Penley spent a lot of time Monday testifying about his meetings with Austin developer and Paxton political donor Nate Paul. 

The meetings with Paul, according to Penley, didn't go the way Paxton wanted, especially one of the last ones.       

"Mr. Paul acted like we didn't understand who the real boss was. It wasn't the attorney general. It was him," said Penley, who headed up the office's Criminal Justice Division.

Penley said Paul wanted the attorney general to help him fight off a federal investigation. He claimed court records were altered and he was being railroaded.

"Speaking for myself, I thought it was crazy. And I was hoping the attorney general would drop it. He didn't," said Penley.

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Prosecution attorney Rusty Hardin asked why Penley thought the claims were crazy.

"The idea that the state of Texas attorney general's office would go investigate the federal courthouse, investigate federal agents and also state agents that were task force officers on the raid, and that those were agents from the DPS and the State Securities Board that we would investigate a federal magistrate judge and federal prosecutors was insane," said Penley.

Penley testified he warned the attorney about Paul’s claims.

"I also told him there was great risk to him. This could look like bribery. This could turn into a criminal charge against him. I told him this could turn into a media scandal if it got out. I said, you should not be doing this. Please back away from this. Let me handle this my way," said Penley.

Defense attorneys tried to get Penley to admit the request for a review was legitimate. Penley claims the attorney general crossed the line by hiring an outside attorney to do what Paxton’s top staff members would not do. It’s alleged the new lawyer illegally used the agency's criminal subpoena powers to get the bank records of individuals described as enemies of Nate Paul. 

A tense exchange between defense attorney Mitch Little and Penley ensued:

Late Monday, Paxton's former chief of staff Missy Minter Cary took the witness stand and testified about Paxton’s extramarital affair and how he confessed to the staff during a meeting in 2018 with his wife, state Sen. Angela Paxton.

"An uncomfortable experience. It's an experience I had not had before in my life. Somber, the word I'd use," said Cary.

Angela Paxton was sad, embarrassed, and cried according to Cary. "My heart broke for her," she said.

In cross-examination, defense attorney Tony Buzbee asked Cary if she went to church which she questioned why it was asked. That set off an exchange on morals, sin and hypocrisy from Buzbee.

Cary testified she thought the affair was over, but it allegedly continued in secret and the mistress allegedly got a job from Nate Paul here in Austin. How that relationship played out is part of the Articles of Impeachment involving abuse of power and can also help explain motivation.

Former Travis County assistant district attorney Greg Cox followed Cary and testified that he had been considering an investigation into Ken Paxton on possible violations including bribery, accepting a gift by a public servant, and abuse of office. Cox said he met with officials with the US. Attorney’s Office to see if a local investigation would cause problems for a federal inquiry into Paxton and Nate Paul. 

After the meeting a decision was made to stand down, about which Cox said he was not happy because he was aware that sometimes federal investigations can drag on for years. Defense attorneys have pointed out on several occasions that no federal charges involving Nate Paul against Paxton have been filed to date.

Former Travis County DA Margaret Moore, Cox's former boss, also testified and was asked about Nate Paul’s request for a local investigation into state and federal authorities. She testified she thought the claims by Paul were not valid. She had a letter drafted to David Maxwell, chief investigator with the attorney general's office, and testified her intent was to let him know she did not believe Paul’s claims were true. 

In cross-examination Buzbee asked Moore if she was aware of a long list of controversial actions by federal authorities, calling them similar to claims by Nate Paul. Moore stated she worked with the FBI and the US Attorney on multiple crimes locally and made it clear she did not believe Paul’s claims were valid. She testified Paul’s claims were not worth sending to the Texas Rangers.

Lt. Governor Dan Patrick told both sides that their time allotments, by rule, may be used up by Thursday and urged them to be mindful of the use of their time. Patrick said it’s possible the full Senate could start deliberations by Thursday or Friday.