There is a dangerous trend in the United States toward the criminalization of politics, and it is infecting Texas as well.

It may have hit its nadir in Wisconsin, where police dispatched by a pro-union Democrat special prosecutor subjected conservative activists supporting Gov. Scott Walker to pre-dawn paramilitary raids. However, closer to home, former Gov. Rick Perry has been forced to spend millions defending himself against a prosecution for exercising his constitutional veto power and for calling for the resignation of disgraced District Attorney Rosemary Lehmberg. Special Prosecutors in that case seek to lock Perry away for the rest of his life under a tortured legal theory that casts his veto as a first degree felony.

Perry is not alone in seeing abuse because of bold actions. Empower Texans has faced years of litigation, and hundreds of thousands of dollars in legal fees, and whistleblowing UT Regent Wallace Hall had his own confrontation with the Travis County DA, all because they chose to speak out.

The newest episode in the sad saga focuses on Texas Attorney General Ken Paxton. During his campaign for office, liberal groups filed complaints against Paxton alleging that he failed to file paperwork with state regulators before referring clients, under a fee sharing arrangement, to a financial advisor he trusted in his building. Paxton settled with the regulators for $1000 and moved on to win his election.

Now, after his opponents maneuvered to have a special prosecutor appointed in the case, Paxton is facing criminal prosecution – again this time under theory that something he did amounts to a first degree felony.

To be clear, no one knows the facts alleged at this point as the entire investigation is shrouded in secrecy. But it stretches the bounds of reason that Paxton has engaged in, and to this point covered-up entirely, some activity that rises to the level of a first degree felony.

A first degree felony is the same level of crime as murder. With a punishment of 5–99 years in prison, it is reserved for activities in the same category as walking up to someone in the middle of town square in broad daylight and shooting them in the face.

It is a maxim of criminal prosecution in a free society that prosecutors start with a notorious crime and then seek to solve it. When prosecutors start with a targeted person, and then work to contort their actions and statements into some criminal offense, it always leads to abuse. And it can always be done! As Lavrentiy Beria, head of Stalin’s secret police, is recorded as saying, “Show me the man and I’ll show you the crime.”

Until the special prosecutors in the Paxton case can convince Texans that some crime rising to the level of murder has occurred, we will remain convinced that their attempted prosecution of Attorney General Paxton is just another case of the criminalization of politics. We’ve simply seen it happen too many times before.


Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.