Ken Paxton impeachment: Texas Senate denies all motions to dismiss

AUSTIN, Texas - The impeachment trial of suspended Texas Attorney General Ken Paxton began Tuesday morning in the Texas Senate after all motions to dismiss were denied.

Texas Lt Gov. Dan Patrick has said the Tuesday, Sept. 5 impeachment will be a political trial. That description is why impeached AG Ken Paxton will certainly not be the only one on trial.

At the Texas Capitol, the stage is now set and the Texas Senate chamber has been reconfigured for the trial.

In front of the room, close to the dais where Patrick will act as judge, tables are ready for House prosecutors and Paxton’s defense team. A witness box has also been built, elevated so members of the Senate, who will serve as the jury, can get a clear view from the desks. 

It’s a familiar yet strange sight for those who have worked in this lawmaking chamber like Jerry Patterson, who served in the Senate in the 1990s and is perhaps best known for the concealed carry gun law he pushed through.

Patterson has weathered his share of political storms, but what’s awaiting the current Senate membership he admits is much different. "That's not, that's not a task that I would derive any joy from," he said.

Patterson told FOX 7 Austin he has not spoken to any Senate members about the trial because of the gag order issued by Lt. Gov. Patrick. If he could, Patterson offered some advice.

"So, any opinions they have now, in my view, would be wrongly, wrongly wrong opinions," said Patterson.

There are stacks of motions to read that were filed before the trial. One of the last included a strong statement from a House prosecutor who wrote, "Paxton can run, but he cannot hide." 

Paxton doesn't have to testify, but Patterson said if he was in one of the Senate chairs, he’d want to hear Paxton testify.

"If you assert a defense and he and his attorneys have done so, then you need to speak to that defense. And the most compelling person speaking to that defense would be the person who's in the hot seat, in my opinion," said Patterson.

The trial that will take place under the Capitol dome certainly will have some similarities to a trial in a county courthouse. But there are some differences and the rules that have been laid out.

"You want this to be a transparent process," said Brian Smith with St. Edwards University.

A reviewing of the Senate rules for the impeachment trial makes one thing certain for Smith.

"On day one is going to be the most exciting day because that's when we're going to actually learn what is the attorney general on trial for," said Smith.

The trial will begin with the reading of the articles of impeachment. Under the rules, Paxton can issue a plea of guilty or not guilty himself or have his attorney do it for him. If he is a no-show, the trial will continue as if he has said not guilty. The next step is to tackle all the motions including those to dismiss most of the 20 articles of impeachment.

"We're going to see how many of these impeachment charges actually are going to make it to the Senate," said Smith.

The lieutenant governor cannot dismiss the articles by himself. That question has got to go back to the senators, the jury. The decision only requires a simple majority vote.

"After the first day, it's kind of like peeling an onion. You'll see how many layers are actually left. And it may be three or four impeachment charges, or it could be the whole lot of impeachment charges," said Smith.

Patrick, in the rules, has warned both sides about courtroom antics and political theater. That’s been difficult to enforce considering Paxton’s attorneys from the beginning have called the impeachment process a sham and political witch hunt orchestrated by Democrats. 

Time limits have been set for the trial. Prosecutors and defense each get an hour to make opening statements and both are limited to a total of 24 hours to present evidence. In cross-examination witnesses cannot be harassed and time cannot be wasted. Rebuttal evidence gets an hour each. Both sides also get an hour for final arguments. Conviction, according to the rules, is based on a burden of proof beyond a reasonable doubt.

"And it's going to be up to those House managers to convince the people in the Senate that that exists," said Smith.

A rule was made just for state Sen. Angela Paxton (R-McKinney), Paxton's wife. Rule 31 allows her to be seated on the floor, but she cannot vote on anything during the trial.

"The implications of that means that it requires 21 senators to convict as opposed to 20," said Smith.

There's an interesting dynamic in the rules. Paxton could be impeached, but the Senate could vote to let him run for office again.

"One of the things about politics is there's always a second chance, and it's up to the Senate to decide if they want to give the attorney general that chance again. He would, of course, bring all that baggage with him," said Smith.

Before the question regarding political ambitions is resolved, Paxton has to beat all the charges. Patterson, when he spoke to FOX 7 Austin, indicated the odds may slightly be in the Attorney General's favor.

"I think it's up in the air. I mean, we know how one party we know that the Democrats are going to vote for impeachment. And so, the question becomes, can you get enough, enough Republicans to get two thirds of those present," said Patterson.

The trial may be about Ken Paxton, but Patterson agrees all the Republican state senators will especially also be on trial.

"Yeah, the Republicans are not going to be able to cast a vote that makes people happy. I don't care which way they go. There's going to be some people very unhappy. You know, and then there's been this there's been some money thrown around and contributions to the lieutenant governor and indirectly to anybody he wishes to support or oppose. But I don't think that makes a big difference. And everybody says it's bought and paid for. I don't think so. This is so high profile. I don't think that whatever money has been contributed to whichever sitting member of the Senate is going to make a difference. This is a very high-profile big deal. And there are certain folks that will be very happy for Republican to vote to convict. And this comes at a time when you have to do one of those gut checks that you do throughout life and just do what you think is right and suffer the consequences for whatever choice you make," said Patterson.

A gag order has prevented state lawmakers, including Paxton, from talking about the trial. However over the weekend during a political rally in his home county, Paxton took a swipe at members of the State House who voted to impeach him. He told his supporters, "Let's clean house."