Texans who have been paying close attention to the prosecution of Texas Attorney General Ken Paxton know the case is the latest embarrassment to the Texas Criminal Justice System. Now things have gotten so bad the editorial board of the Wall Street Journal is starting to take notice.
In an editorial that ran in the weekend edition, the nation’s premier financial daily identified the Paxton case as a “political prosecution” and linked it to past travesties, including the prosecutions of Congressman Tom Delay and Governor Rick Perry, both of which were eventually thrown out of court after years of litigation.
“This looks like a trumped-up case intended to take down a politician who made himself unpopular with the grandees of the GOP establishment,” wrote the board, noting Paxton’s challenges to incumbent Republican House Speaker Joe Straus and upset defeat of Republican Dan Branch in the race for attorney general.
The writers note several details about the case that are disturbing.
First, the prosecution has no legal basis. The initial charge against Paxton is that he “failed to register as an investment advisor.” But the journal notes that state law doesn’t require attorneys like Paxton to register, and even if he were required, the firm he allegedly worked with was already registered with the SEC, which eliminates the requirement for agents to also register.
The Paxton indictment also alleges an affirmative duty on Paxton to disclose that he was not invested in a business he mentioned to fellow lawmakers. That peculiar claim, as the editorial board explains, arose from GOP state lawmaker Byron Cook, one of Paxton’s political rivals. That charge is so bogus that when identical allegations were brought in federal court by the Obama Administration’s Securities and Exchange Commission, they were thrown out at the first opportunity, with federal Judge Amos Mazzant concluding the federal regulators were “attempting to place square pegs in round holes.”
Second, Paxton’s prosecutors appear to have abused the grand jury process in his case. On this issue, the board broke some news in their editorial. According to the editorial board, which claims to have seen sealed grand jury documents related to the Paxton matter, the prosecutors in the Paxton case allegedly misled the grand jury regarding the date Paxton sent a solicitation letter in the case, alleging it was sent on July 18, 2012 rather than June 26. That’s important because Paxton cannot be prosecuted for anything that took place before July 7, 2012 due to the statute of limitations.
If the special prosecutors in Paxton’s case indeed misled grand jurors about the date of the letter, then they need to be investigated for prosecutorial misconduct. That would not be unprecedented. In 2013, former Williamson County prosecutor Ken Anderson was disbarred and served time in jail for withholding exculpatory evidence in the 1985 prosecution of Michael Morton.
Third, the Paxton case is rife with procedural peculiarities. Indeed, the “political theatrics” of the prosecutors have caught the attention of the editorial board, with a particular focus on the repeated delays of Paxton’s trial. The case was set to go to trial in Collin County in May, but the Houston-based prosecutors asked Judge George Gallagher to give them home court advantage by transferring the case to Harris County because they claimed that they would not get a fair trial with a jury composed of Paxton’s neighbors. That’s highly unusual, as the Journal notes, because transfers of venue are usually granted in order to protect the rights of the accused, not to make prosecutors’ jobs easier.
Now Judge Gallagher has been booted from the case by the court of appeals and replaced with a newly-elected Democrat judge who, according to the Journal, has never presided over any case. The trial is now set for December 11th.
The Journal covered the high points of the Paxton debacle, but there’s even more that they omitted. Missing was any mention of Paxton prosecutor Kent Schaffer’s ties to the Bandidos motorcycle gang. Likewise, the board didn’t mention how the prosecutors used their motion to transfer venue to engage in a tirade against their critics, even going so far as to allege that Facebook posts by citizens in West Texas were an elaborate plot to taint the jury pool in the Dallas area. Nor did the board touch on the fact that State Rep. Byron Cook, the alleged “victim” in Paxton’s case, has been sued by numerous business colleagues for actually committing the types of securities fraud the prosecutors want to pin on Paxton.
The latest shoe to drop in the Paxton case came on Monday, with the Dallas Court of Appeals ruling that the $300 per hour rate charged to Collin County by the Paxton prosecutors violates state law, which caps such payments to appointed prosecutors to the same meager rates afforded to attorneys appointed to serve indigent defendants.
With no more money to be earned from prosecuting Paxton, prosecutors Kent Schaffer, Brian Wice, and Nicole DeBorde will have to decide whether putting the attorney general through a political wringer is compensation enough for them to continue their crusade.
Regardless, the WSJ editorial board’s conclusion regarding the Paxton case is spot on. “Weaponizing the courts for political gain is a refuge of scoundrels and needs to be policed by the courts,” they wrote. Indeed. It is time for the Courts to rein-in the abuses in the Paxton case and put an end to this embarrassment once and for all.