Texas Senate’s handling of Angela Paxton’s role gives small boost to her husband in pending impeachment trial

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In deciding what role state Sen. Angela Paxton would play in the impeachment trial of her husband, suspended Attorney General Ken Paxton, the Texas Senate had to split the baby on a number of legal and ethical questions.

Angela Paxton, a Republican senator from McKinney, will sit as a member of the court of impeachment but will not vote on any issues before the court of 31 senators and won’t be allowed into deliberations on whether to convict or acquit.

That removes Angela Paxton’s influence over her fellow senators in the closed-door deliberations on the political fate of her husband, but it also keeps the two-thirds threshold for convicting him at 21 senators — a number that would have been reduced to 20 had she been removed entirely from the proceedings.

“The compromise over Sen. Paxton’s position in the process clearly reflects procedural concerns, but it also is shot through with elements of personal politics and the politics inherent in the situation,” said Jim Henson, director of the Texas Politics Project at the University of Texas at Austin. “The process is inherently political, and there’s no getting away from that.”

If all 12 Democrats vote to convict on the individual articles of impeachment, nine of the remaining 18 Republicans would have to support conviction to permanently remove Paxton from office.

Had Sen. Paxton been removed from trial proceedings, requiring 20 votes for conviction, the needed Republican support would have dropped to eight senators.

Ken Paxton, a third-term Republican attorney general, was accused of a number of crimes, including bribery and misuse of office for providing help to Austin real estate investor Nate Paul, a friend and political donor. In May, the House voted 121-23 to impeach Paxton, who was immediately suspended from his official duties pending the Senate trial’s outcome.

Multiple experts said the Senate’s decision to count Angela Paxton toward the total vote tally skews matters in Ken Paxton’s favor.

“In effect, they have given her a vote and dictated what the vote is and essentially given him an automatic one-vote cushion before the voting even starts,” said Frank Bowman, a law professor at the University of Missouri who has studied impeachment. “Whether that’s consistent with the language of the constitution, I’d say it’s certainly inconsistent with the purpose, which is to keep a person with an obvious conflict of interest from having any influence over the proceedings, and that’s obviously not going to be true here.”

But experts also said senators were in a tricky position because state law says all members of the Senate attend an impeachment court.

“She’s a sitting senator, it’s not like they can kick her out of the chamber,” said Josh Blackman, a constitutional law professor at South Texas College of Law. “The most they can say is that she has a conflict of interest and she can’t vote. This maybe was ideally worked out for her to save face.”

Brandon Rottinghaus, a political scientist at the University of Houston, said senators likely grappled with how to handle Paxton’s participation in the trial. In a legislative chamber of only 31 members, senators work with one another regularly and frequently discuss their bonds of friendship despite strong political disagreements. In developing a compromise, he said, “the personal [bled] into the legal.”

“The unusualness of the circumstances made it impossible to create a rule that was going to be fair to all parties,” Rottinghaus said.

Those personal bonds — between the senators and the Paxtons, and between the Paxtons themselves — also make it hard to perfectly enforce boundaries. The impeachment rules ban senators and their staff members from discussing the court’s deliberations with others, including Ken Paxton and his legal team. But Rottinghaus said it would have been nearly impossible to completely enforce those boundaries if Angela Paxton was allowed to attend closed deliberations.

Because of that, Rottinghaus sees the Senate’s decision to bar Angela Paxton from those conversations in a more positive light.

“The fact that they took this stand is politically courageous in one perspective,” he said. “That [recusal] rule on balance favors [Ken] Paxton but it’s as fair as it could have been handled.”

Still, Angela Paxton’s influence on the proceedings is by no means nullified. She will still be present for the court’s public proceedings when the impeachment lawyers present their evidence, including claims that Ken Paxton asked Paul to hire a woman with whom he was having an extramarital affair.

“You’re going to have a bunch of senators who work together all the time,” Henson said. “To assume she’s not going to be a big presence in the room as her husband is being tried and judged by the members of the Senate seems to me to stretch credulity.”

Disclosure: University of Texas at Austin and University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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