We'll know very quickly how Texas AG Ken Paxton’s impeachment trial will end

Today marks the start of the first impeachment trial of a member of Texas’s plural executive branch since the 1917 impeachment of populist Governor James “Pa” Ferguson. 

Texas Attorney General Ken Paxton (R) faces 16 articles of impeachment, most stemming in one form or another from his relationship with disgraced investor Nate Paul. It is a trial that is likely to either be over in less than two days and result in Paxton being reinstated as attorney general or last two to three weeks and result in Paxton being impeached and definitively removed from office.

The evidence is strong that Paxton engaged in a wide variety of actions which constitute impeachable offenses. These include using his powers as attorney general to benefit businessman Nate Paul in a wide variety of ways in exchange for an expensive remodel of his house, and to obtain a job for his affair partner.

In May, 121 state House members (60 Republicans and 61 Democrats) voted in favor of the articles of impeachment, while only 23 (23 Republicans and 0 Democrats) voted against.

In spite of the strength of the evidence against him, Paxton could return later this week to serve as the Lone Star State’s chief law enforcement officer. This is a political trial, not a criminal or civil trial, and the jurors are not average Texans, but rather 31 state senators: 19 Republicans and 12 Democrats. Senator Angela Paxton (the attorney general’s wife) must attend the trial, but is not allowed to participate in deliberations or vote. Her presence does, however, mean that it will take 21 senators to impeach the attorney general instead of the 20 that would be required if she were not present for the trial. 

The road to power in Texas continues to run through the Republican primary, and Texas Republicans are split between those who believe Paxton’s actions justify impeachment (24 percent), those who believe they do not justify impeachment (32 percent) and those who are unsure (43 percent). 

A very vocal minority of Republicans has engaged in a well-funded and robust campaign to convince the 18 voting Republican senators that a vote for impeachment will result in reprisals in the 2024 Republican primary (when six are up for re-election) and beyond. In addition, high profile Republicans such as Donald Trump and Sen. Ted Cruz (R-Texas) have voiced their support for an acquittal.

At the same time, 47 percent of registered Texas voters believe Paxton should be impeached, compared to 18 percent who believe he should not be impeached and 35 percent who are unsure.  That latter proportion is very likely to shrink and split disproportionately in favor of impeachment after two to three weeks of trial proceedings and widespread media coverage of the trial. 

If the Republican senators do not want to impeach Paxton, they are likely to utilize an escape hatch known as the prior-term (or voter-forgiveness) doctrine to dismiss the charges against Paxton on the first or second day of the trial. Paxton’s legal team has already filed the necessary motions to dismiss.

In a nutshell, the prior-term doctrine says that an elected official cannot be impeached for acts that occurred prior to their most recent election, and all of the 16 articles of impeachment are based on actions which took place prior to Paxton’s re-election as attorney general in November of 2022.  All of the charges against Paxton contained in the 16 articles of impeachment were public (not all of the salacious details, but the basic facts) when Texas voters re-elected Paxton by a 10-point margin over Democrat Rochelle Garza.

Although a majority of voters were not well aware of the charges at the time of the election, proponents of the prior-term doctrine argue that Texas senators would be undemocratically overturning the “will of the people” if they were to impeach Paxton. 

It would make little sense for Senate Republicans to allow two to three weeks of intense media coverage of Paxton’s myriad misdeeds only to acquit him in spite of the mountains of evidence against him. If the Republican senators allow the trial to move forward at all, it is because they have decided that Paxton should be removed.

Their other realistic option, the prior-term dismissal, would obviate the need for Republicans in the legislature to vote directly on the merits of the case and provide them with a convenient rebuttal to future critiques that they exonerated Paxton. It would also reduce the level of media coverage and public awareness of Paxton’s alleged offenses.

The senators could argue that their hands were tied by the prior-term doctrine, and if is anyone to blame, it is the Texas House for waiting until after the 2022 election to start the impeachment process.

This is why the outcome of Ken Paxton’s impeachment trial will, in all likelihood, be determined over the course of the next 24 to 48 hours. 

Mark P. Jones is the Joseph D. Jamail Chair in Latin American Studies at Rice University. He is a professor in the Department of Political Science, the James A. Baker III Institute for Public Policy’s Political Science Fellow, and the faculty director of the Master of Global Affairs Program.

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