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the Texas Tribune trip Cast for June ninth, twenty twenty three. My name's
Matthew Watkins, and I'm managing editor for News and Politics at the Tribune.
And today we're going to talk again about the Kin Paxston impeachment proceedings, specifically
the looming trial in the Senate. As each day passes, the case seems
to get more and more interesting. This week we learned that Tony Buzzby,
the bombastic Houston lawyer who, depending on who you are, you might recognize
him for representing Governor Rick Perry in his twenty fourteen corruption case, or maybe
for angering his River Oaks neighbors by parking a World War two tank outside his
home back a couple of years ago. He'll be representing Paxiston in the case
along with prominent defense attorney Dan Cogdal. On Wednesday, Buzzby and Cogdal held
a fiery press conference in which Buzzby compared the House impeachment proceedings to a kangaroo
court and promised that Paxiston will not be convicted by the Senate. Then on
Thursday, we learned that Nate Paul, the Austin real estate developer at the
center of the allegations against pastic was Paxixton, was arrested by the FBI.
Joining us to discuss this is Ross Garber, a lawyer who represents institutions in
people facing government an investigation. His clients have included five US governors in an
attorney general facing impeachment. Ross, thank you for joining us. It's good
to be here. Thanks for having me. Yes, So, first,
I want to talk a little bit about the news that most recently broke.
Nate Paul, this Austin developer, he's at the center of the allegations involving
Kim Paxton was charged with eight felony accounts in federal court today, largely about
making false statements to financial institutions. The allegations against him, do not mention
Kim Paxson in any way. They focus on actions that took place in twenty
seventeen and twenty eighteen allegedly misleading mortgage lenders and credit unions. But the allegations
against Paxton deal some with the FBI investigation related to this, and you know,
basically questions and how Paxton may or may not have used his office to
get involved with the FBI investigation. This, of course happens as the Senate
trial is pending, and I'm wondering ross what your reaction is to the news
that this has happened, how this might play into you know, sort of
the criminal courts compared to the impeachment case, that is that is moving pretty
quickly against them. Yeah, and and and first let me say I represent
nobody at all in you know, in these cases. You know, I'm
watching all of this from afar um. You know, I saw the news
about the indictment today, and uh, and my initial reaction was that it'd
be hard to believe that it was unrelated to the impeachment, and and my
gut is it might relate to it, at least in terms of timing.
If I were a federal prosecutor, and I saw this impeachment process going on.
I saw that there was going to be a trial coming up in the
state Senate where um, somebody who I've been investigating, and you know,
the reports are that the government has been invested gating uh this developer for years
now. UM. If I saw reports that, uh that that the subject
matter that I was investigating as a prosecutor was also going to be the subject
of a Senate trial, that would concern me. I don't think I'd like
to see uh, you know, key witnesses be you know, cross examined
or testify there. You know, that might accelerate how I how I approach
things. So um, so I that was my initial reaction is that maybe
the government accelerated their case against this developer because of the looming Senate trial.
Um. And you know my other reaction is related, which is, uh
that it would seem to potentially affect how this Senate trial plays out because now
there is a live federal criminal case, and any lawyer for any witness is
going to say, hey, look, you know that is your first uh
you know concern is you know, is a criminal case. I'm not you
know, I practice in Washington, DC, and actually Connecticut. I don't
I'm not a member of the Texas Bar. I have taken a look at
at Texas law and some things including immunity for witnesses in legislative proceedings, and
there appears to be a pretty broad immunity provision which seems to say that if
a witness is subpoenaed to testify compelled to testify in a legislative proceeding, and
that witness has immunity at least with respective state state criminal prosecutions. And uh,
you know that that also may you know, may play into things and
complicate things. Yeah, so that's an interesting thing. You say you found
it very likely that this would be somehow related to the impeachment trial or the
allegations against in Paxson, And what you mean from a timing standpoint that you
could basically see a situation where the fact that this is moving in this political
arena might cause the Department of Justice or you know, the US Attorney's office
to act in this way. Basically, I think about it if you're if
you're a prosecutor, you've been investigating this case, you know, you're thinking
about bringing charges, and then you see that there's going to be a very
public Senate trial where you know, we're waiting to see what the rules are
going to be. But in most impeachment trials they're very rare. But in
most of them, there's the right for the people involved to you know,
bring in witnesses, subpoena witnesses, subpoena documents, crosses, amin witnesses.
If you're a prosecutor, that's going to be a concern to you that that's
all playing out, because that could potentially compromise your criminal case. And so
yeah, you know, my gut was, you know, maybe the government,
the prosecutors accelerated things. You know, one thing I've been wondering about
is we've seen politicians get in trouble with the federal government, you know,
the the US Department of Justice for in Texas, of course. And one
thing that I've always kind of heard is this idea that sometimes the Justice Department
does not like to bring charges against someone you know, close to election,
for example, to not wanting to fear interfere with the political process and things
like that. Impeachment, of course, is its own sort of political process.
Is there any kind of concern there about the Department of Justice not wanting
to get in the way of what's happening here in Texas. You know,
in my experience, there is not that concern. In my experience, the
you know, the Department of Justice and you know, I've seen these kinds
of overlaps before, is not particularly sensitive about interfering with an impeachment proceeding.
It's exactly the opposite. It's their concern that an impeachment process is going to
interfere with their criminal investigation. You're right, and you know, normally there's
a sensitivity about federal prosecutors interfering with an election that generally hasn't in my experience,
carried over to impeachment proceedings. The other thing that just kind of popped
into my head when we saw this happening recently is, you know, all
of us who have watched, you know, the various investigations to the Trump
administration, you know, in recent years, you know, we many of
us kind of became the sort of armchair and analysts of legal proceedings and government
investigations, and you know, there would always be this kind of suggestion that
the Department of Justice was charging someone to possibly kind of close the circle around
the target of their investigation. And so one question I know that has popped
into a lot of people's head is, you know, what vulnerability might this
show to Paxxton criminally in the realm of you know, this person is at
the center of the allegations being made against him by whistleblowers and things like that,
Is there a reason to be concerned about an attempt to possibly flipmate Paul
or something like that as they might be pursuing something related to Paxixton. Yeah,
look, I think one of Paxton's lawyers specifically raised that question, and
and for sure, if I were representing Paxston, that's you know, that's
what I'd be thinking. If I were representing Paul, That's what I'd be
I'd be thinking. That is you know very uh, you know, standard
prosecutor tactics to take someone kind of lower down the food chain and then try
to flip them against somebody uh, further up on the food chain, and
what that can and that can benefit that person who's lower on the food chain
by potentially limiting the number of charges they face or you know, potentially getting
them a reduced sentence. So for sure, you know that could that could
be part of it as well. Okay, so let's talk a little bit
about the Senate trial UM. And can I say one other thing actually just
occurred to me, is is whether it's appropriate or not UM. I have
seen this before where prosecutors will actually you know, have an outcome that they
prefer for that elected official. In other words, they might prefer, you
know, if they if they see elected official that they believe is corrupt,
they might actually prefer that that elected official not continue to serve in office any
longer. And again I've no reason to believe this is what's happening here,
but it also wouldn't surprise me that the timing, you know, may with
Paul, you know, may maybe a result to sort of you know,
turn the screws on him and you know, see if he would flip before
the Senate trial um to potentially impact the Senate trial kind of the opposite of
what you're talking about a few minutes ago. Well, the other aspect here,
and we can get into a little bit in a little bit about you
know, the rules that the Senate may set for this trial. We don't
exactly know what that's going to look like, but you could see a situation
where the people you know, sort of prosecuting this case before the Senate would
want Nate Paul to be you know, testifying under O in that case.
Now he's under you know, federal indictment. Does that complicate that goal or
hope? Any Yeah, look it might complicate uh everything you see. You
know, I've read the articles of impeachment. Paul is all over lots of
them. And if you're prosecuting the uh, the impeachment in the in the
Senate, you may say, yeah, this is a this is a problem
because we can't have Paul as a witness. If you're Paxton's lawyers, you
may say the same thing. Look, you know, he's he could be
a key defense witness. You know, the articles of impeachment mention him,
they make all these allegations against him. Uh. You know, if you're
Paxton's lawyers, you may say, we should be able to call him,
you know, have him testify, uh and uh and and make sure the
Senate knows what his perspective on things is. And and they might say that
you know, this indictment, especially if he's kept in custody, uh,
you know, poses a problem. But the defense sure sure. All right,
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more at TASBO dot org. All right, so, Ross, I want
to ask about these rules. There will be a Senate committee meeting on June
twentieth where they will kind of lay out how this trial in the Senate will
work, and I think a lot of us are waiting for that moment to
kind of see what happens. You, as someone who has been through these
cases, been through I would imagine different types of impeachment proceedings. What are
you watching for? What do you want to know about the decisions they make
on that June twentieth meeting. Yeah, and let me say this, impeachments
and especially impeachment trials are shockingly rare. They almost never happen um and so
I'm very interested to see what the rules are because there's it's not like court
where there's a standard set of rules, uh, or or even you know,
typical legislative bodies where there's a typical set of rules. Here there is
not a typical set of rules, and so who knows. Um, I
did two impeachment trials just last year, but that was that was very,
very unusual, and so uh for the rules, there's there's a lot that
I'm I'm looking to see. Uh. The one of the first things I'll
be interested in is whether Paxton is entitled to any discovery. So in a
in a regular court case, criminal or civil, uh, the parties get
pre trial discovery so that you know, things are pretty well settled before trial.
There have to be certain disclosures made, let's say, in a criminal
case, certain disclosures made to a criminal defendant by the government ahead of trial.
In a civil case, the parties get to take depositions before trial.
And so I'll be very interested to see if there's any provision for pre trial
discovery. And I I've seen it both ways. Typically I guess there's there.
There is limited if we can say typically you know, there is limited
discovery and things kind of you know take place during during the trial. On
the other hand, on the federal level. In the Clinton impeachment trial,
there actually were a limited number of depositions before trial, and there was no
testimony at the actual trial in the Clinton impeachment trial, and as many of
us remember, there were there was no testimony at all in either of the
Trump impeachment trials. So I'll be the first thing I'll be interested in is
is there any discovery? Is the is the House is going to have to
turn over their investigative materials or some investigative materials, uh to to Paxson's lawyers.
That's going to be a big issue. Uh. Then the second thing
is with respect to testimony. Paxson's lawyers have said that they they didn't tend
to uh to have scores of witnesses testify at trial. And like I just
alluded to, it's in some impeachment trials, there is testimony. In some
impeachment trials, UH, there is not testimony. So those those are two
big things. UM. But UH, but you know there's more that you
know. The Senate here is has broad discretion, uh to to to set
their own rules. UM. I'll give you another example at the federal level,
UH, in impeachment trials of judges, the whole Senate doesn't have to
sit and listen to all the evidence. There's a committee that's designated of senators
that sit and they listen to the evidence, and then that committee makes a
recommendation to the full Senate. I have no reasonably believe that's going to happen
in Texas, but just it gives you a sense of, you know,
that how uncertain the playing field is. Sure, you know, this is
an interesting case because those of us who have watched the Texas Senate for a
long time pay a lot of attention to the Lieutenant Governor Dan Patrick, who
is a you know, a very high profile figure in Texas and known by
some outside the state as well. And what we really see is the kind
of complete control he wields over the Senate. You know, no bill gets
through without his explicit approval, and if if senators cross him, you know,
even on one of his priorities, they can kind of see the consequences
of that on their own bills for an entire legislative session. And being like
that, he will be presiding over this trial, and you know, has
kind of talked about being an impartial observer in all this and has really talked
up the idea of being a judge in the senators of the jury. But
I guess I wonder what you think about the sort of presiding officer of a
of a chamber in these trials, the role they play. You know,
what it might mean to have someone like that, a figure like that,
presiding over this trial in particular. So it's a great question, you know.
The first thing that comes to mind is that in the Senate trials that
I've been involved in, and certainly on the federal level, the presiding officer
has virtually no power at all. The presiding officer basically doesn't do anything.
Chief Justice Rank Whist, after he presided over the Clinton trial, actually noted,
I'm paraphrasing. I think he said that he, uh, he didn't
do much and uh and he did that well and and famously, uh when
when Chief Justice rank Whist at the beginning of the Clinton trial, was getting
a tour of the Senate chamber and where he would sit, he asked the
question, you know, how do I turn on my microphone? And he
was told, you don't. We will decide, Uh, the senators will
decide when we need you, and we'll turn on your microphone and so UM,
it's it's actually not typically like a court where the presiding officer acts as
a judge and the senators act as jurors. In fact, one of the
maybe the only, but certainly one of the few objections UH in a federal
impeachment trial that was made was actually made in the Clinton impeachment trial where one
of the one of the lawyers in the trial referred to senators as jurors,
and Senator I think was Arl Inspector objected and said, you know, we
are not jurors. And he asked the Chief Justice to so find and direct
the u and direct the lawyers to not refer to the senators as jurors.
And Chief Justice rank wast agreed. He said, the senators are not jurors.
And typically that's that's true. The this is a court of impeachment,
and and I think it's more appropriate to consider the senators as both jurors and
judges. Um. And I guess one last thing on that often in impeachment
trials it'll be up to the presiding officer to deal with objections initially, but
then senators will be able to overrule to provide presiding officer and so it's something
to look for in the rules to see how that's handled. Interesting. I
mean, that's it's that's so funny to hear, just as someone who watches
the Texas Senate, because the idea of the senators overruling the lieutenant governor is
not something you see a lot in in the Texas Capital at least, so
that will be a curious thing to watch. I mean, so, I
mean, what you're talking about here is a more political process, right,
And I'm wondering how that affects the representation you know, on both sides,
people prosecuting the case and people you know representating a senator Attorney General Paxton,
is your strategy different than in you know, your typical kind of court case
And if so, how Yeah, no, it it definitely is it a
you know, people have said that impeachment is a political process, and that
is that's long. It's true. It's bound by the Constitution, it's bound
by legislative rules, and there'll be rules of procedure here, but it is
very very much a political process. And U and it's happening in a forum
where people are accustomed to practicing politics. You know that it's happening in the
Senate Chamber of the Senate. Senators are are used to being politicians there.
This Paxixton is certainly a politician. You know, these are people who are
used to dealing with each other as politicians. I did an impeachment once where
you know, we'd have testimony for the day, and then at the conclusion
of testimony, right in the hearing room, there'd be podium set up and
both sides would do press conferences sort of summarizing and analyzing and spinning the day's
testimony. Obviously, don't see that kind of thing in court. One.
One thing I'll be interested to see in the rules is whether there is a
prohibition on ex partey communications, meaning whether either Paxton or the House managers or
the House lawyers can have interactions with the senators about the impeachment outside the proceedings
and and kind of one on one I have, you know, I have
impeachments, seemed that kind of thing, so that, you know, things
play out in the daylight, but then kind of behind the scenes, everybody's
like talking. Everybody in the the you know, the house managers or you
know, are talking. It happens on the federal level. The House managers
talking into the senators. The fence lawyers are talking to the senators, you
know, deals are being discussed, and so it will be interesting to see
if there is a prohibition saying you can't do that, and the senators are
going to act or you know, like a you know kind of you know,
like a court. I'm going to get really in the legal leads here
just for a minute, even more so than we already have, because you
made a point on your Twitter account a few days ago that really interests me.
It was around the idea of how Paxton's kind of top deputies, the
current ones, not the ones who blew the whistle on him and eventually left,
have taken a leave of absence from the agency in order to work on
Paxson's defense essentially, and they're essentially part of his legal team. Of course,
part of this trial is likely to be about the way that Paxston ran
this agency and how he used the agency for you know, his possible benefit
or for the benefit of a particular person. Nate, Paul, I wonder,
and you raised the specter of attorney client privilege privilege there, and I
thought it was a very interesting one, and could Paxton make the argument that
his staffers that are now on his team couldn't be compelled to a deposition or
or a you know, to testify in this because they are essentially working as
his lawyers right now. Yeah, so it presents a weird dynamic. So
that and there are two time periods. You know, there's the time period
where they are working. It looks like they're working or him in his private
capacity as a private citizen now and you know, and they're not being as
I understand it, paid for by the state. So to me, that
looks a lot more like your sort of typical attorney client relationships. So I'm
a private lawyer. If I represent you in something and we have confidential communications,
those are protected by the attorney client privilege. So with some exceptions,
I can't be as your lawyer subpoena to testify about those. So that's period
one. But the previous period, these folks were working in the Attorney General's
office that were being paid for by the state, and it's my understanding,
weren't representing Paxton in any capacity. I think I think there's the argument that
communications and did those circumstances would be protected by the attorney client privilege, it
would be harder to make. There may be other privileges that apply investigative privileges,
and so for the attorney client privilege argument would be would be tougher to
make. Now these would be covered by these issues would be covered by state
law, and laws very state to state to state. I'll not One quick
overlay is that under federal law, which I mentioned this in my uh in
my Twitter thread, federal law. There are cases going both ways on this,
but most courts say that a lawyer paid for by the public for a
public official, uh, those communications, even if they're confidential in the context
of a criminal investigation, they don't get the attorney client privilege. This court
going the other way in a case that I argued. But um. But
so, you know, even if these lawyers were talking to Paxton back when
they worked in the office and he was considered, you know, their lawyer,
there may still be questions about whether whether privilege applies. And you know,
at least in the first instance and maybe probably honestly in the last instance,
these are going to be decisions made by the Senate, by the presiding
officer, and ultimately by the senators, and it could get tricky. Yeah,
I want to ask you a little bit about the argument that Paxiston's lawyers
made this week when they were kind of introduced themselves. It aligned with what
some of the opponents of impeachment said in the House vote, which was essentially
that House investigators conducted their inquiry in secret. They started kind of investigating him
in March. We didn't find out about it until late May on a Wednesday.
The articles were recommended by a general investigating Committee on Thursday, and Paxson
was impeached on a Saturday, and there was really not any chance for Paxixton
to make his case or explain himself. And they argued, you know,
there was no due process. Paxson's lawyers called it a kangaroo court earlier this
week. How unusual did that process of getting to impeachment look to you?
I mean, is there anything to that argument about the kind of lack of
due process here? Well, so, in my experience, it was very
quick and very unusual in that respect. But because impeachments are so rare,
you know, it really is hard to say, oh, this is you
know, this is typically the way it's done. This is not typically the
way it's done. Andrew Johnson was the first president to be impeached, and
I think the impeachment proceedings in his case at the House lasted maybe three days,
So that was an incredibly quick process. Most of the state impeachment proceedings
I've been involved with have lasted much longer, and and due process arguments are
are sometimes make made. I've I've made them when I represented officials who've been
subject to impeachment proceedings. I've sometimes made due process arguments. In one state,
I actually got a judge state judge to enjoin the impeachment proceedings based on
the argument that the House wasn't providing due process. But um, I think
that in that respect, the toothpaste is probably out of the tube. The
impeachment process happened, the vote happened, and now we're a trial in the
Senate um and you know senators, you know, they can vote however they
want for whatever reason they want, and be some will say how we're we're
taking the process than the House into account and how we vote in the Senate.
I'm not sure why they would say that, because, uh, you
know, the Senate's running its own process and you know the senator. Senators
can insist on, you know, whatever level of proof they want in the
Senate. So I don't I don't think right now that there's much there's much
room for a due process argument with respect to the House. Is that largely
true just for this process in general? Like, is this pretty isolated from
court intervention and that it like basically is it is it okay for the House
and the Senate and really now the Senate to kind of make their own rules
and go through those rules and how they vote determines Paxiston's future or are there
opportunities to step in and say, you know, whether it's due process or
something else, they're not following the law here. Yeah. So, so
court fights related to impeachments and impeachment trials aren't unprecedented. And it's going to
depend on the strategy that you know, Paxiston's lawyers want to pursue. If
they think they have the votes for an acquittal, then they you know,
presumably wouldn't waste their time and run to chord. But uh, you know,
again there it depends on the federal level. The Supreme Court has basically
said that with the respect of federal impeachments. They don't touch them. They
considered a case involving a judge. You know, I mentioned that committee procedure
where the Senate, the US Senate said they weren't all the senators weren't going
to sit there and listen to all the testimony, and they assigned a committee
to it. Federal judge said, wait, that's not okay. The constitution
says that the Senate tries the impeachments impeachments, and that federal judge went to
court and the Supreme Court ultimately said, you know what, the Senate gets
to decide. It's up to the Senate how impeachment trials are run. They
get complete authority to decide. So we're not getting involved. I've had other
cases where courts have been involved, have gotten involved the state court case.
State courts they have gotten involved in impeachments in in a case I wasn't involved
in just a few months ago, involving the Philadelphia District attorney, a state
judge. They are actually enjoined house impeachment proceedings. So it's going to depend
on you know what, if the Texas courts get this kind of issue.
You know what, the Texas courts decide to do it. Yeah, all
right, well, we will all eagerly await what the Senate and possibly the
Courts decide here in the future. Ross, thank you so much. This
has been a very helpful conversation and helping elucidate this. Thank you for joining
us, Thanks for having me all right, and thank you to our producer
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