Analysis: Make-or-Break Moment for AG Paxton

Going to jail can kill a political career. An indictment, not so much.

But Ken Paxton’s situation is different. The state’s Republican attorney general is not under fire for his actions as a state official or as a candidate for office. This is about his business career.

Paxton, an attorney with interests in dozens of business ventures, stands accused of securities fraud in a three-count sealed indictment detailed for The New York Times by special prosecutor Kent Schaffer this weekend. That indictment is expected to be unsealed Monday in Collin County.

That private angle takes some of the political sheen off of the case. Paxton’s pugnacious publicist, Anthony Holm, has characterized the investigation as a politically driven attempt by inexperienced prosecutors trying to bring down the relatively new attorney general.

On the surface, however, the charges don’t appear to have anything to do with politics. Paxton, according to Schaffer, will face a third-degree felony charge of failing to register with state securities regulators and two first-degree charges of securities fraud for steering investors to Servergy Inc. without telling them he was paid to do so, and for misrepresenting himself as a fellow investor.

Another prominent Texas Republican found himself in a similar pickle almost a year ago. Then-Gov. Rick Perry was indicted on two counts — one has since been erased by an appeals judge — related to his effort to force Travis County’s district attorney out of office. Rosemary Lehmberg, a Democrat, was arrested on a DWI charge, pleaded guilty and served jail time — all without resigning from office.

Perry said she should go and threatened to veto the state funding for ethics prosecutions by her office if she refused. She refused. He vetoed the funds. A special prosecutor appointed by a visiting judge took the case to a grand jury, which decided the governor had abused his powers to make Lehmberg act the way he wanted.

The outcry when Perry was indicted — as well as during the lead-up to that indictment — was loud and partisan. It has remained that way ever since, with Republicans blasting the criminal justice system in Democratic Travis County for trying to use the courts to do what they couldn’t get done at the polls.

Much of the political class jumped to the governor’s defense, including a lot of people in politics and the punditocracy who ordinarily disagree with him.

Paxton? Not so much. A former member of the House and Senate, he is one of a pack of Republicans swept into statewide office in November, replacing a veteran group of officeholders.

The charges against Paxton originally came up during the Republican primary for attorney general, and were revived by the liberal-leaning Texans for Public Justice, which urged Austin prosecutors to have a deeper look. They passed, but referred the case to Collin County. The district attorney there, a friend and sometimes business associate of Paxton’s, recused himself. The special prosecutors appointed in his place, with investigatory help from the Texas Rangers, obtained the indictments he faces now.

Perry drew a mob of defenders. Paxton has plenty of friends, political allies and supporters, but the comparative silence is remarkable. It clearly has not been received as a political prosecution so far.

Paxton, like some predecessors, might find that this makes him stronger in the end. An indictment is just an allegation. Sometimes, the result is a conviction and punishment. Sometimes, the legal fight is a political stimulant.

Kay Bailey Hutchison was indicted and acquitted and it made her politically invincible for more than a decade. She remained a voter favorite through three terms in the U.S. Senate, faltering only when she challenged Perry in the Republican primary in 2010. Jim Mattox, a Democrat indicted during his first year as the state’s attorney general (sound familiar) was also acquitted. He was re-elected once and almost got the Democratic nomination for governor, losing a runoff to Ann Richards in 1990.

Contrast that with Dan Morales, the former Texas attorney general who went to federal prison for charges that evolved from his conduct in the state’s litigation against some of the world’s biggest tobacco companies. Morales, a Democrat, was also a rising star. But his conviction and prison time ended any hope he might have had for another public office.

Each of them claimed politics was at the core of their prosecution, with varying degrees of success. In the end, none won the political battle without winning the legal one.

Now Paxton will take a turn in the dock. Acquittal could boost his political career. A conviction would end it.