In Brief:
Ken Paxton’s problems seem to be purely of his own making, yet his case reveals something about how attorneys general around the country have become both more partisan and more important in recent years.
If convicted by the Texas Senate in August, Paxton would be the second Republican attorney general removed from office by impeachment in just over a year. Jason Ravnsborg of South Dakota, who fatally struck a man with his car in a hit-and-run accident, was impeached and removed last June. Over the past decade, state attorneys general have also resigned in the wake of scandal in Utah and Pennsylvania.
As state AGs have become more powerful policy players and frequent antagonists of presidents of the other party, they have not only drawn more money from campaign donors but heightened attention from political enemies. “The increased scrutiny is absolutely linked to that, that the AG office really matters,” says Paul Nolette, a political scientist at Marquette University. “It used to be, in many states, a pretty obscure office, and now it's at the front lines of a lot of action, whether it's litigation against the federal government or against major corporations and industries.”
This is central to Paxton’s defense — that he’s been targeted as a leading adversary of President Biden. He was impeached by a state House totally dominated by his fellow Republicans, but the House is run by a more moderate faction of the Texas GOP. “The moderate Republicans that run the House, Speaker Dade Phelan and his team, were getting beat up all session by the conservative wing that runs the Senate, and this was their opportunity to go on offense,” says Mark P. Jones, a political scientist at Rice University.
Almost immediately after a House committee ran its investigation, Paxton was impeached by the full House on May 27 on 20 counts of misuse of office. The charges include taking bribes from a political donor, home remodeling and a job for his mistress. Paxton has been removed from office pending the outcome of the Senate trial.
Although the House vote was 121-23, things look tighter in the Senate, where a two-thirds vote is necessary for conviction. Impeachment had the support of Speaker Phelan, but Lt. Gov. Dan Patrick, who runs the Texas Senate, has stayed neutral thus far. Most House Republicans had no choice but to side with the speaker, Jones suggests, and there was strength in numbers. “The conservative wing can’t effectively primary all 60 House Republicans” who voted to impeach, Jones says.
The dynamics look different in the Senate. Paxton and his allies will claim that the allegations, even if true, were widely known before he won re-election last year. For some senators, the default position will be not to overturn the will of two-thirds of last year’s GOP primary voters.
Since the situation sheds light on the importance of state attorneys general across the nation’s political landscape, Governing spoke with Nolette, one of the leading academic experts on state AGs. Nolette, who directs Marquette’s Les Aspin Center for Government in Washington, is the author of Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America. The following interview has been edited and condensed.
Governing: The circumstances of Jason Ravnsborg’s impeachment were completely different, but how unusual is it to have not just one but two AGs removed within a year’s time?
Nolette: It is historically unusual. It does seem like there's been an increase in the political and legal hot water that AGs can get into. It’s a reflection of the fact that it's a more prominent office than it used to be. With that additional power comes additional scrutiny and potentially additional temptation to use the office in not great ways.
In recent years, there have been a number of state AGs that have gotten into hot water one way or another, some sort of scandal or legal trouble. Ken Paxton was at one extreme of that, as far as being under indictment for years and years now, and having his legal problems pile up, and even staff members leaving. Paxton is really on an island of his own, in terms of the level of alleged corruption.
Governing: Paxton has been under indictment in a federal securities case nearly his entire time in office and it’s been three years ago since eight of his deputies accused him of accepting bribes and abusing his office. So do you have any thoughts about the timing of the impeachment? It seems like the House Republicans only decided to act after he asked them to fund a $3.3 million settlement with the whistleblowers.
Nolette: Right, it’s not a short amount of time that he’s been under indictment and that the allegations have been out there. Paxton has managed to make a lot of enemies, not just on the left but the right as well, through his very aggressive self-promotion. All that comes to roost at a certain point.
But I do think in this case, there is something to be said just for the quantity of evidence that there is against Paxton. I think that actually did make a difference. I guess I'm not so cynical to think that at some point, if you add to the political conflicts just mountains and mountains of evidence, at some point the dam may break even among the person's own party, and it's hard to get to that point, especially these days with hyperpolarization.
Governing: Let’s talk about polarization. There are some Republicans saying that with Texas being essentially a one-party state that they have to clean up their own house. But there are other Republicans saying this is a betrayal, that Paxton has been a loyal soldier for the party who just won re-election and they don’t want to do the Democrats’ work for them. Either way, it’s clear that being AG is perceived as being a partisan office in a way that wasn’t true a generation ago.
Nolette: Yeah, absolutely. There were a number of Republicans whose defense echoed Paxton’s own defense, which is that every day that you're spending attacking me and preparing my impeachment is a day that I am distracted from suing the Biden administration.
Texas is a one-party state, but maybe it’s getting close to competitive enough that it gives Republicans more of an incentive to move on someone like Paxton, because he could hurt their brand and party. For many Republicans in Texas, the ideal would be a sober-minded, great lawyer, who sues the Biden administration every day.
Governing: When he was attorney general, Texas Gov. Greg Abbott had a famous line about his job being going into the office, suing Barack Obama and going home. In that era, he was one of the leading Republican attorneys general suing a Democratic president, if not the leader. Where does Paxton fit in that firmament, in terms of being a Biden antagonist?
Nolette: No. 1. He was the No. 1 Republican AG in suing the Biden administration. That’s in part because of the role that Texas has played for some time now, because of the size of their office, the resources, the legal talent. Just the sheer size of Texas gives the ability to really get involved in a lot of different issues, whether it's immigration or environment or energy, many of the issues that Paxton has been suing about.
The kind of older school Republicans and Democrats who were all about bipartisanship or highlighting the typical work of the AG’s office are gone. There are a lot of Republican AGs, like Jeff Landry of Louisiana and others, who have taken on the mantle as well, and been leaders on the Republican side. But Paxton has just quantitatively been the most frequent antagonist of the Biden administration.
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