Despite promise of “total transparency,” secrecy will be a big part of Ken Paxton impeachment trial

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

Lt. Gov. Dan Patrick has promised maximum transparency in the impeachment trial for suspended Attorney General Ken Paxton, but trial rules recently adopted by the Texas Senate came after an opaque process — and provide for plenty of secrecy going forward.

Any pretrial motions, including requests from Paxton’s legal team to toss out articles of impeachment, will be kept confidential.

A special committee of senators will review each pretrial motion behind closed doors and issue written recommendations for how it should be addressed, but those recommendations are to remain confidential as well.

When senators vote on pretrial matters — or cast the deciding votes on whether to convict or acquit on each article of impeachment — there can be no debate or comments beyond “yea” or “nay.”

Even the witness list that each side must file before Aug. 22 will be kept from the public.

After all the evidence is presented and closing arguments are made, senators will meet in private to deliberate like any jury in a civil or criminal trial.

Finally, the rules require the trial’s presiding officer — at this point it is Patrick, though he can appoint a replacement — to issue a gag order “as soon as practicable” after adoption of the rules. The rules do not state who would be barred from speaking or what they would be prohibited from speaking about.

The Senate approved the rules without public debate Wednesday night, following two days of closed-door deliberations over them. That came after a rule-making committee worked in secret for three weeks, drafting proposed rules without telling the public when and where they were meeting.

“Just comparing this process to other processes [in state government], it hasn’t been transparent,” said Adrian Shelley, executive director of Public Citizen Texas, an Austin-based government watchdog group. “Not even knowing when the committee is meeting is pretty disappointing.”

Even if the process and rules are similar to past impeachment trials or similar legal proceedings, Patrick had promised a high level of transparency.

“Let me just say this: If there is a trial — if there is — there will be total transparency and it will be handled properly,” Patrick said in a radio interview Monday.

Patrick said from the Senate dais Wednesday night that he was proud senators could come together to craft the rules, and he reminded them of the rules against discussing the case. He later issued a written statement acknowledging their adoption after “2 days of thoughtful deliberation” but otherwise has not commented on the rules or the issues of transparency.

Patrick’s office did not respond to a request for comment. A spokesperson’s email account said they were out of the office until Monday and did not provide an alternate media contact.

The Senate approved the rules Wednesday night in a 25-3 vote without debate on the floor, and text of the rules was not publicly available until afterward.

One of the senators who voted against the rules, Sen. Sarah Eckhardt, D-Austin, cited the lack of transparency for her opposition.

“The Rules are unprecedented in their presumption for opacity and closed deliberation,” Eckhardt wrote in the Senate Journal afterward.

She pointed to Rule 10 in particular, which provides for the gag order, among other things.

An opaque rule-making process

The process of making the rules was opaque from the start.

On the last day of the regular legislative session, May 29, the Senate passed a resolution creating a seven-member committee to draft rules and present them to the full Senate on June 20. Patrick named five Republicans and two Democrats to the panel and made GOP Sen. Brian Birdwell of Granbury the chair.

The resolution gave the committee the power to meet at the call of the chair and to meet in closed sessions. Otherwise, it did not exempt the committee from any Senate rules.

No information about the committee, its membership or anything else related to it was ever published on the official Senate website. The committee never gave public notice for its meetings, despite Senate rules that require committees to provide 24-hour notice for meetings, even if they intend to meet privately in executive session.

Paxton’s lead attorney, Tony Buzbee, said in a podcast interview that the committee spent the days before its June 20 deadline holed up at an Austin-area resort.

“The rules are developed by a rules committee appointed by the lieutenant governor, who I’m told are in Austin as we speak, at a resort in a room working out what the rules are,” Buzbee said. Asked which resort, Buzbee said he did not know, “but I’m told it’s on Lake Travis.”

Not only are Senate committees normally required to give prior notice of meetings, they also have to adopt their own rules and keep minutes of their meetings. The rule-making committee was established as a “special committee,” but Senate rules do not exempt special committees from any rules unless the resolution forming them says so.

“While [the resolution] makes it clear they can meet in executive session, it does not make really clear they’re exempt from the Senate rules that they have to provide 24-hour notice and adopt rules and keep minutes,” said Bill Aleshire, an Austin lawyer who specializes in government transparency.

A closely watched debate

The rules debate was closely watched because state law gives the Senate wide latitude to set the ground rules for an impeachment trial and because there were important questions to answer — like whether McKinney Republican Sen. Angela Paxton, Ken Paxton’s wife — would be able to participate.

The Senate ultimately settled on a rule that requires her to attend the trial — state law mandates that every senator must be present — but bars her from voting or deliberating. Still, the rules were silent on other conflicts of interest.

Sen. Bryan Hughes, R-Mineola, is alluded to in the articles of impeachment as a “straw requestor” for an attorney general’s office legal opinion that Ken Paxton sought to help a campaign donor. And Sen. Donna Campbell, R-New Braunfels, employed a staffer who was reportedly involved in an extramarital relationship with Paxton that is mentioned in the articles.

The opaque rule-making process means the public does not know if additional recusals were contemplated.

“Not knowing whether that was discussed,” Shelley said, “it undermines confidence in the process.”

Disclosure: Tony Buzbee has been a financial supporter 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.

---

Go behind the headlines with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23. Join them to get their take on what’s next for Texas and the nation.