Analysis: Ken Paxton and the High Expense of a Good Defense

If felony indictments alleging securities fraud are not enough to keep Texas Attorney General Ken Paxton awake at night, maybe the cost of defending himself will do it.

When an elected official is accused of a crime committed as an elected official — or as a candidate for office — that official can use campaign funds to pay the defense lawyers.

Rick Perry is doing just that, stacking up legal bills surpassing $2 million since the start of the 2013 investigation that produced an indictment charging him with misusing his office, a case that still bedevils the former governor today.

That one stemmed from Perry’s threat to veto state funding for Travis County prosecutors if the district attorney — who had been convicted and served jail time after a DWI arrest — would not resign.

Because he was acting as the governor when the alleged misdeeds took place, Perry can use his state campaign account to pay his band of lawyers.

Paxton faces three felony charges in Collin County, all related to his work as a private attorney and businessman. He told supporters in an email that he expects to be found innocent of all charges. The indictments handed up last month by a grand jury have nothing to do with the public Ken Paxton — the one who serves as attorney general and once served in the Senate and House, and the one who campaigned for votes for each of those jobs.

That means he can’t use the money in his substantial campaign account, according to attorneys familiar with the state’s campaign finance laws — Randall “Buck” Wood and Ed Shack, both of Austin. That money — he reported cash on hand of almost $2.5 million at the end of June — cannot be converted to his personal use.

And because the charges involve his private business and not his public business, he can’t tap the campaign funds.

That doesn’t mean he has to pay for everything, but it means it would be complicated to try to raise money to cover his expenses. And even if he finds a legal way to do it, finding a politically palatable solution will be hard. Voters are accustomed to political contributions, even if the money is being used to defend a politician in court for charges related to actions taken on the campaign or as an officeholder. Tom DeLay had a defense fund. Kay Bailey Hutchison did, too.

Personal litigation is different. Paying for that has nothing to do with public business. Offering to help someone in Paxton’s position is to offer a gift; offering a gift to a politician, with certain exceptions, is to offer a bribe.

The exceptions to the state’s bribery laws might allow a Ken Paxton Defense Fund, and if it works out, that could make his nights more restful. For instance, it’s clear that public officials cannot accept benefits from someone who is involved in litigation with their agency, or is about to be. So many of the folks most interested for professional reasons in helping the state’s top lawyer wouldn’t be able to give. And it’s clear in the law that legislators, the governor, the lieutenant governor and the people who work for them cannot accept gifts. The attorney general and other statewide officials are not named in that statute. Business associates can give gifts to public officials, however, so long as their gifts are independent of the recipient’s status as a public servant.

In other words, the lawyers might be able to find a way to set up a defense fund that could help with Paxton’s bills without triggering the bribery alarms.

Unfortunately, money is not the only potential source of insomnia. Paying for a good defense could win Paxton an acquittal — just what he or anyone in his shoes would want. But it’s not enough for the source of that money to be legal — it has to be politically clean, too. Acquittal is the most important outcome, but not a complete win: Paxton would like to beat the rap in a way that boosts his political fortunes.

Political donors regularly argue that their contributions are an expression of their politics and their civic interests, that they’re helping pay for their version of good government.

Their funds go to a political operation or idea or figure, not just to a friend or a powerful official who needs money for personal use — whether it’s to buy a car or a house or a roomful of lawyers.

Unless he wants to foot the bills himself, Paxton and his advisers will have to find a public justification — something that will sell in future campaigns — for wealthy donors to help the state’s attorney general sleep well at night.