1 00:00:08,800 --> 00:00:14,519 This week's trip cast is sponsored by Texas State Technical College has Texas covered with 2 00:00:14,560 --> 00:00:19,079 ten campuses across the state. Students can learn the skills necessary to start a 3 00:00:19,120 --> 00:00:26,839 great new career. Learn more at TSTC dot edu and Texas BioMed pioneers and 4 00:00:26,920 --> 00:00:32,640 shares scientific breakthroughs that protect our communities. Health starts with science. Health Starts 5 00:00:32,799 --> 00:00:49,799 at Texas BioMed. Visit tx BioMed for more. Hello, and welcome to 6 00:00:49,799 --> 00:00:53,640 the Texas Tribune trip Cast for June ninth, twenty twenty three. My name's 7 00:00:53,679 --> 00:00:57,520 Matthew Watkins, and I'm managing editor for News and Politics at the Tribune. 8 00:00:57,840 --> 00:01:02,920 And today we're going to talk again about the Kin Paxston impeachment proceedings, specifically 9 00:01:02,920 --> 00:01:06,519 the looming trial in the Senate. As each day passes, the case seems 10 00:01:06,560 --> 00:01:08,719 to get more and more interesting. This week we learned that Tony Buzzby, 11 00:01:10,400 --> 00:01:14,439 the bombastic Houston lawyer who, depending on who you are, you might recognize 12 00:01:14,519 --> 00:01:19,719 him for representing Governor Rick Perry in his twenty fourteen corruption case, or maybe 13 00:01:19,760 --> 00:01:23,040 for angering his River Oaks neighbors by parking a World War two tank outside his 14 00:01:23,120 --> 00:01:27,159 home back a couple of years ago. He'll be representing Paxiston in the case 15 00:01:27,599 --> 00:01:33,680 along with prominent defense attorney Dan Cogdal. On Wednesday, Buzzby and Cogdal held 16 00:01:33,680 --> 00:01:38,239 a fiery press conference in which Buzzby compared the House impeachment proceedings to a kangaroo 17 00:01:38,319 --> 00:01:44,439 court and promised that Paxiston will not be convicted by the Senate. Then on 18 00:01:44,519 --> 00:01:48,359 Thursday, we learned that Nate Paul, the Austin real estate developer at the 19 00:01:48,359 --> 00:01:53,120 center of the allegations against pastic was Paxixton, was arrested by the FBI. 20 00:01:53,040 --> 00:01:59,000 Joining us to discuss this is Ross Garber, a lawyer who represents institutions in 21 00:01:59,040 --> 00:02:04,040 people facing government an investigation. His clients have included five US governors in an 22 00:02:04,040 --> 00:02:08,280 attorney general facing impeachment. Ross, thank you for joining us. It's good 23 00:02:08,280 --> 00:02:10,400 to be here. Thanks for having me. Yes, So, first, 24 00:02:10,439 --> 00:02:14,599 I want to talk a little bit about the news that most recently broke. 25 00:02:14,719 --> 00:02:19,639 Nate Paul, this Austin developer, he's at the center of the allegations involving 26 00:02:20,080 --> 00:02:29,240 Kim Paxton was charged with eight felony accounts in federal court today, largely about 27 00:02:29,439 --> 00:02:35,240 making false statements to financial institutions. The allegations against him, do not mention 28 00:02:35,400 --> 00:02:38,240 Kim Paxson in any way. They focus on actions that took place in twenty 29 00:02:38,280 --> 00:02:45,960 seventeen and twenty eighteen allegedly misleading mortgage lenders and credit unions. But the allegations 30 00:02:45,960 --> 00:02:52,479 against Paxton deal some with the FBI investigation related to this, and you know, 31 00:02:52,560 --> 00:02:55,759 basically questions and how Paxton may or may not have used his office to 32 00:02:55,879 --> 00:03:00,680 get involved with the FBI investigation. This, of course happens as the Senate 33 00:03:00,680 --> 00:03:06,240 trial is pending, and I'm wondering ross what your reaction is to the news 34 00:03:06,319 --> 00:03:09,280 that this has happened, how this might play into you know, sort of 35 00:03:09,319 --> 00:03:15,960 the criminal courts compared to the impeachment case, that is that is moving pretty 36 00:03:15,000 --> 00:03:20,000 quickly against them. Yeah, and and and first let me say I represent 37 00:03:20,120 --> 00:03:23,520 nobody at all in you know, in these cases. You know, I'm 38 00:03:23,560 --> 00:03:29,319 watching all of this from afar um. You know, I saw the news 39 00:03:29,360 --> 00:03:35,120 about the indictment today, and uh, and my initial reaction was that it'd 40 00:03:35,159 --> 00:03:39,199 be hard to believe that it was unrelated to the impeachment, and and my 41 00:03:39,280 --> 00:03:43,400 gut is it might relate to it, at least in terms of timing. 42 00:03:43,439 --> 00:03:46,840 If I were a federal prosecutor, and I saw this impeachment process going on. 43 00:03:47,639 --> 00:03:51,240 I saw that there was going to be a trial coming up in the 44 00:03:51,360 --> 00:03:55,840 state Senate where um, somebody who I've been investigating, and you know, 45 00:03:55,840 --> 00:04:02,840 the reports are that the government has been invested gating uh this developer for years 46 00:04:02,879 --> 00:04:10,319 now. UM. If I saw reports that, uh that that the subject 47 00:04:10,360 --> 00:04:15,000 matter that I was investigating as a prosecutor was also going to be the subject 48 00:04:15,080 --> 00:04:17,920 of a Senate trial, that would concern me. I don't think I'd like 49 00:04:18,079 --> 00:04:23,160 to see uh, you know, key witnesses be you know, cross examined 50 00:04:23,199 --> 00:04:27,160 or testify there. You know, that might accelerate how I how I approach 51 00:04:27,199 --> 00:04:30,639 things. So um, so I that was my initial reaction is that maybe 52 00:04:30,680 --> 00:04:35,879 the government accelerated their case against this developer because of the looming Senate trial. 53 00:04:36,600 --> 00:04:44,199 Um. And you know my other reaction is related, which is, uh 54 00:04:44,439 --> 00:04:48,600 that it would seem to potentially affect how this Senate trial plays out because now 55 00:04:48,639 --> 00:04:55,319 there is a live federal criminal case, and any lawyer for any witness is 56 00:04:55,360 --> 00:04:58,759 going to say, hey, look, you know that is your first uh 57 00:04:59,399 --> 00:05:03,240 you know concern is you know, is a criminal case. I'm not you 58 00:05:03,279 --> 00:05:10,560 know, I practice in Washington, DC, and actually Connecticut. I don't 59 00:05:11,800 --> 00:05:14,600 I'm not a member of the Texas Bar. I have taken a look at 60 00:05:15,920 --> 00:05:21,160 at Texas law and some things including immunity for witnesses in legislative proceedings, and 61 00:05:21,199 --> 00:05:27,160 there appears to be a pretty broad immunity provision which seems to say that if 62 00:05:27,240 --> 00:05:31,879 a witness is subpoenaed to testify compelled to testify in a legislative proceeding, and 63 00:05:32,040 --> 00:05:41,000 that witness has immunity at least with respective state state criminal prosecutions. And uh, 64 00:05:41,480 --> 00:05:45,480 you know that that also may you know, may play into things and 65 00:05:45,519 --> 00:05:49,079 complicate things. Yeah, so that's an interesting thing. You say you found 66 00:05:49,120 --> 00:05:56,000 it very likely that this would be somehow related to the impeachment trial or the 67 00:05:56,040 --> 00:05:59,839 allegations against in Paxson, And what you mean from a timing standpoint that you 68 00:06:00,040 --> 00:06:04,199 could basically see a situation where the fact that this is moving in this political 69 00:06:04,240 --> 00:06:10,160 arena might cause the Department of Justice or you know, the US Attorney's office 70 00:06:10,199 --> 00:06:13,079 to act in this way. Basically, I think about it if you're if 71 00:06:13,079 --> 00:06:15,160 you're a prosecutor, you've been investigating this case, you know, you're thinking 72 00:06:15,199 --> 00:06:19,519 about bringing charges, and then you see that there's going to be a very 73 00:06:19,680 --> 00:06:25,040 public Senate trial where you know, we're waiting to see what the rules are 74 00:06:25,079 --> 00:06:28,759 going to be. But in most impeachment trials they're very rare. But in 75 00:06:28,800 --> 00:06:31,800 most of them, there's the right for the people involved to you know, 76 00:06:31,879 --> 00:06:35,759 bring in witnesses, subpoena witnesses, subpoena documents, crosses, amin witnesses. 77 00:06:35,800 --> 00:06:40,319 If you're a prosecutor, that's going to be a concern to you that that's 78 00:06:40,319 --> 00:06:46,079 all playing out, because that could potentially compromise your criminal case. And so 79 00:06:46,199 --> 00:06:48,639 yeah, you know, my gut was, you know, maybe the government, 80 00:06:48,720 --> 00:06:53,519 the prosecutors accelerated things. You know, one thing I've been wondering about 81 00:06:53,600 --> 00:06:58,519 is we've seen politicians get in trouble with the federal government, you know, 82 00:06:58,560 --> 00:07:01,120 the the US Department of Justice for in Texas, of course. And one 83 00:07:01,120 --> 00:07:05,079 thing that I've always kind of heard is this idea that sometimes the Justice Department 84 00:07:05,439 --> 00:07:11,759 does not like to bring charges against someone you know, close to election, 85 00:07:11,879 --> 00:07:15,480 for example, to not wanting to fear interfere with the political process and things 86 00:07:15,480 --> 00:07:19,759 like that. Impeachment, of course, is its own sort of political process. 87 00:07:19,920 --> 00:07:25,439 Is there any kind of concern there about the Department of Justice not wanting 88 00:07:25,439 --> 00:07:29,040 to get in the way of what's happening here in Texas. You know, 89 00:07:29,079 --> 00:07:33,680 in my experience, there is not that concern. In my experience, the 90 00:07:34,040 --> 00:07:38,040 you know, the Department of Justice and you know, I've seen these kinds 91 00:07:38,040 --> 00:07:44,240 of overlaps before, is not particularly sensitive about interfering with an impeachment proceeding. 92 00:07:44,240 --> 00:07:48,120 It's exactly the opposite. It's their concern that an impeachment process is going to 93 00:07:48,199 --> 00:07:53,360 interfere with their criminal investigation. You're right, and you know, normally there's 94 00:07:53,480 --> 00:08:00,759 a sensitivity about federal prosecutors interfering with an election that generally hasn't in my experience, 95 00:08:00,800 --> 00:08:03,560 carried over to impeachment proceedings. The other thing that just kind of popped 96 00:08:03,560 --> 00:08:07,600 into my head when we saw this happening recently is, you know, all 97 00:08:07,639 --> 00:08:11,800 of us who have watched, you know, the various investigations to the Trump 98 00:08:11,839 --> 00:08:16,920 administration, you know, in recent years, you know, we many of 99 00:08:16,000 --> 00:08:20,800 us kind of became the sort of armchair and analysts of legal proceedings and government 100 00:08:20,839 --> 00:08:26,600 investigations, and you know, there would always be this kind of suggestion that 101 00:08:26,720 --> 00:08:31,480 the Department of Justice was charging someone to possibly kind of close the circle around 102 00:08:31,519 --> 00:08:35,120 the target of their investigation. And so one question I know that has popped 103 00:08:35,159 --> 00:08:39,639 into a lot of people's head is, you know, what vulnerability might this 104 00:08:39,840 --> 00:08:43,919 show to Paxxton criminally in the realm of you know, this person is at 105 00:08:43,919 --> 00:08:48,720 the center of the allegations being made against him by whistleblowers and things like that, 106 00:08:50,080 --> 00:08:54,879 Is there a reason to be concerned about an attempt to possibly flipmate Paul 107 00:08:54,039 --> 00:09:00,840 or something like that as they might be pursuing something related to Paxixton. Yeah, 108 00:09:00,960 --> 00:09:05,679 look, I think one of Paxton's lawyers specifically raised that question, and 109 00:09:05,679 --> 00:09:07,720 and for sure, if I were representing Paxston, that's you know, that's 110 00:09:07,720 --> 00:09:11,919 what I'd be thinking. If I were representing Paul, That's what I'd be 111 00:09:11,240 --> 00:09:16,240 I'd be thinking. That is you know very uh, you know, standard 112 00:09:16,159 --> 00:09:22,639 prosecutor tactics to take someone kind of lower down the food chain and then try 113 00:09:22,639 --> 00:09:26,759 to flip them against somebody uh, further up on the food chain, and 114 00:09:26,840 --> 00:09:31,279 what that can and that can benefit that person who's lower on the food chain 115 00:09:31,399 --> 00:09:37,720 by potentially limiting the number of charges they face or you know, potentially getting 116 00:09:37,720 --> 00:09:41,759 them a reduced sentence. So for sure, you know that could that could 117 00:09:41,799 --> 00:09:45,279 be part of it as well. Okay, so let's talk a little bit 118 00:09:45,279 --> 00:09:50,320 about the Senate trial UM. And can I say one other thing actually just 119 00:09:50,360 --> 00:09:54,480 occurred to me, is is whether it's appropriate or not UM. I have 120 00:09:54,720 --> 00:10:01,159 seen this before where prosecutors will actually you know, have an outcome that they 121 00:10:01,200 --> 00:10:05,360 prefer for that elected official. In other words, they might prefer, you 122 00:10:05,360 --> 00:10:07,080 know, if they if they see elected official that they believe is corrupt, 123 00:10:07,120 --> 00:10:13,200 they might actually prefer that that elected official not continue to serve in office any 124 00:10:13,240 --> 00:10:18,679 longer. And again I've no reason to believe this is what's happening here, 125 00:10:18,720 --> 00:10:22,879 but it also wouldn't surprise me that the timing, you know, may with 126 00:10:24,039 --> 00:10:28,080 Paul, you know, may maybe a result to sort of you know, 127 00:10:28,120 --> 00:10:31,360 turn the screws on him and you know, see if he would flip before 128 00:10:31,440 --> 00:10:37,200 the Senate trial um to potentially impact the Senate trial kind of the opposite of 129 00:10:37,320 --> 00:10:41,080 what you're talking about a few minutes ago. Well, the other aspect here, 130 00:10:41,080 --> 00:10:43,799 and we can get into a little bit in a little bit about you 131 00:10:43,840 --> 00:10:48,159 know, the rules that the Senate may set for this trial. We don't 132 00:10:48,159 --> 00:10:50,519 exactly know what that's going to look like, but you could see a situation 133 00:10:50,600 --> 00:10:56,080 where the people you know, sort of prosecuting this case before the Senate would 134 00:10:56,159 --> 00:11:00,919 want Nate Paul to be you know, testifying under O in that case. 135 00:11:01,279 --> 00:11:05,320 Now he's under you know, federal indictment. Does that complicate that goal or 136 00:11:05,360 --> 00:11:13,240 hope? Any Yeah, look it might complicate uh everything you see. You 137 00:11:13,240 --> 00:11:16,840 know, I've read the articles of impeachment. Paul is all over lots of 138 00:11:16,879 --> 00:11:22,799 them. And if you're prosecuting the uh, the impeachment in the in the 139 00:11:22,840 --> 00:11:26,279 Senate, you may say, yeah, this is a this is a problem 140 00:11:26,320 --> 00:11:31,159 because we can't have Paul as a witness. If you're Paxton's lawyers, you 141 00:11:31,200 --> 00:11:33,480 may say the same thing. Look, you know, he's he could be 142 00:11:33,679 --> 00:11:37,600 a key defense witness. You know, the articles of impeachment mention him, 143 00:11:37,600 --> 00:11:41,000 they make all these allegations against him. Uh. You know, if you're 144 00:11:41,039 --> 00:11:43,720 Paxton's lawyers, you may say, we should be able to call him, 145 00:11:45,399 --> 00:11:50,159 you know, have him testify, uh and uh and and make sure the 146 00:11:50,240 --> 00:11:54,720 Senate knows what his perspective on things is. And and they might say that 147 00:11:54,799 --> 00:11:58,639 you know, this indictment, especially if he's kept in custody, uh, 148 00:11:58,679 --> 00:12:01,519 you know, poses a problem. But the defense sure sure. All right, 149 00:12:01,559 --> 00:12:05,919 let's pause for a second and hear from our sponsors. Lone Star College 150 00:12:05,960 --> 00:12:11,080 works for Texas providing real world workforce training in state of the art facilities to 151 00:12:11,120 --> 00:12:18,240 meet employers demands. Find out more at Lonestar dot edu and Texas Association of 152 00:12:18,279 --> 00:12:24,720 School Business Officials School Finance and Operations Professionals make public schools thrive. Find out 153 00:12:24,759 --> 00:12:30,879 more at TASBO dot org. All right, so, Ross, I want 154 00:12:30,919 --> 00:12:35,120 to ask about these rules. There will be a Senate committee meeting on June 155 00:12:35,159 --> 00:12:41,480 twentieth where they will kind of lay out how this trial in the Senate will 156 00:12:41,519 --> 00:12:43,519 work, and I think a lot of us are waiting for that moment to 157 00:12:43,559 --> 00:12:48,039 kind of see what happens. You, as someone who has been through these 158 00:12:48,120 --> 00:12:54,120 cases, been through I would imagine different types of impeachment proceedings. What are 159 00:12:54,159 --> 00:12:56,279 you watching for? What do you want to know about the decisions they make 160 00:12:56,360 --> 00:13:03,240 on that June twentieth meeting. Yeah, and let me say this, impeachments 161 00:13:03,399 --> 00:13:11,679 and especially impeachment trials are shockingly rare. They almost never happen um and so 162 00:13:11,519 --> 00:13:16,799 I'm very interested to see what the rules are because there's it's not like court 163 00:13:16,840 --> 00:13:20,159 where there's a standard set of rules, uh, or or even you know, 164 00:13:20,200 --> 00:13:26,159 typical legislative bodies where there's a typical set of rules. Here there is 165 00:13:26,240 --> 00:13:30,720 not a typical set of rules, and so who knows. Um, I 166 00:13:30,759 --> 00:13:33,960 did two impeachment trials just last year, but that was that was very, 167 00:13:35,120 --> 00:13:39,639 very unusual, and so uh for the rules, there's there's a lot that 168 00:13:39,720 --> 00:13:46,559 I'm I'm looking to see. Uh. The one of the first things I'll 169 00:13:46,639 --> 00:13:52,639 be interested in is whether Paxton is entitled to any discovery. So in a 170 00:13:52,320 --> 00:13:56,720 in a regular court case, criminal or civil, uh, the parties get 171 00:13:56,720 --> 00:14:01,120 pre trial discovery so that you know, things are pretty well settled before trial. 172 00:14:01,120 --> 00:14:05,039 There have to be certain disclosures made, let's say, in a criminal 173 00:14:05,080 --> 00:14:11,960 case, certain disclosures made to a criminal defendant by the government ahead of trial. 174 00:14:11,399 --> 00:14:15,960 In a civil case, the parties get to take depositions before trial. 175 00:14:16,039 --> 00:14:20,320 And so I'll be very interested to see if there's any provision for pre trial 176 00:14:20,360 --> 00:14:26,559 discovery. And I I've seen it both ways. Typically I guess there's there. 177 00:14:26,720 --> 00:14:31,600 There is limited if we can say typically you know, there is limited 178 00:14:31,039 --> 00:14:35,720 discovery and things kind of you know take place during during the trial. On 179 00:14:35,759 --> 00:14:41,879 the other hand, on the federal level. In the Clinton impeachment trial, 180 00:14:41,960 --> 00:14:48,879 there actually were a limited number of depositions before trial, and there was no 181 00:14:48,000 --> 00:14:54,200 testimony at the actual trial in the Clinton impeachment trial, and as many of 182 00:14:54,240 --> 00:14:56,759 us remember, there were there was no testimony at all in either of the 183 00:14:56,759 --> 00:15:01,919 Trump impeachment trials. So I'll be the first thing I'll be interested in is 184 00:15:01,919 --> 00:15:07,080 is there any discovery? Is the is the House is going to have to 185 00:15:07,080 --> 00:15:13,240 turn over their investigative materials or some investigative materials, uh to to Paxson's lawyers. 186 00:15:13,440 --> 00:15:16,879 That's going to be a big issue. Uh. Then the second thing 187 00:15:18,039 --> 00:15:22,720 is with respect to testimony. Paxson's lawyers have said that they they didn't tend 188 00:15:22,759 --> 00:15:28,919 to uh to have scores of witnesses testify at trial. And like I just 189 00:15:28,960 --> 00:15:33,200 alluded to, it's in some impeachment trials, there is testimony. In some 190 00:15:33,240 --> 00:15:37,120 impeachment trials, UH, there is not testimony. So those those are two 191 00:15:37,240 --> 00:15:41,519 big things. UM. But UH, but you know there's more that you 192 00:15:41,519 --> 00:15:48,480 know. The Senate here is has broad discretion, uh to to to set 193 00:15:48,559 --> 00:15:52,440 their own rules. UM. I'll give you another example at the federal level, 194 00:15:52,879 --> 00:15:58,159 UH, in impeachment trials of judges, the whole Senate doesn't have to 195 00:15:58,200 --> 00:16:04,039 sit and listen to all the evidence. There's a committee that's designated of senators 196 00:16:04,080 --> 00:16:10,039 that sit and they listen to the evidence, and then that committee makes a 197 00:16:10,080 --> 00:16:12,799 recommendation to the full Senate. I have no reasonably believe that's going to happen 198 00:16:15,639 --> 00:16:19,080 in Texas, but just it gives you a sense of, you know, 199 00:16:19,120 --> 00:16:23,600 that how uncertain the playing field is. Sure, you know, this is 200 00:16:23,639 --> 00:16:29,759 an interesting case because those of us who have watched the Texas Senate for a 201 00:16:29,759 --> 00:16:34,600 long time pay a lot of attention to the Lieutenant Governor Dan Patrick, who 202 00:16:34,720 --> 00:16:40,000 is a you know, a very high profile figure in Texas and known by 203 00:16:40,039 --> 00:16:44,159 some outside the state as well. And what we really see is the kind 204 00:16:44,159 --> 00:16:48,759 of complete control he wields over the Senate. You know, no bill gets 205 00:16:48,759 --> 00:16:52,879 through without his explicit approval, and if if senators cross him, you know, 206 00:16:52,960 --> 00:16:56,720 even on one of his priorities, they can kind of see the consequences 207 00:16:56,759 --> 00:17:00,200 of that on their own bills for an entire legislative session. And being like 208 00:17:00,240 --> 00:17:03,440 that, he will be presiding over this trial, and you know, has 209 00:17:03,519 --> 00:17:07,640 kind of talked about being an impartial observer in all this and has really talked 210 00:17:07,720 --> 00:17:11,839 up the idea of being a judge in the senators of the jury. But 211 00:17:11,240 --> 00:17:17,400 I guess I wonder what you think about the sort of presiding officer of a 212 00:17:17,480 --> 00:17:21,200 of a chamber in these trials, the role they play. You know, 213 00:17:21,319 --> 00:17:25,119 what it might mean to have someone like that, a figure like that, 214 00:17:25,519 --> 00:17:30,440 presiding over this trial in particular. So it's a great question, you know. 215 00:17:30,599 --> 00:17:34,279 The first thing that comes to mind is that in the Senate trials that 216 00:17:34,359 --> 00:17:41,039 I've been involved in, and certainly on the federal level, the presiding officer 217 00:17:41,200 --> 00:17:48,960 has virtually no power at all. The presiding officer basically doesn't do anything. 218 00:17:49,640 --> 00:17:56,319 Chief Justice Rank Whist, after he presided over the Clinton trial, actually noted, 219 00:17:56,319 --> 00:18:00,799 I'm paraphrasing. I think he said that he, uh, he didn't 220 00:18:00,839 --> 00:18:07,640 do much and uh and he did that well and and famously, uh when 221 00:18:07,799 --> 00:18:11,279 when Chief Justice rank Whist at the beginning of the Clinton trial, was getting 222 00:18:11,319 --> 00:18:15,960 a tour of the Senate chamber and where he would sit, he asked the 223 00:18:17,039 --> 00:18:19,000 question, you know, how do I turn on my microphone? And he 224 00:18:19,119 --> 00:18:25,559 was told, you don't. We will decide, Uh, the senators will 225 00:18:25,559 --> 00:18:30,000 decide when we need you, and we'll turn on your microphone and so UM, 226 00:18:30,039 --> 00:18:37,319 it's it's actually not typically like a court where the presiding officer acts as 227 00:18:37,319 --> 00:18:41,920 a judge and the senators act as jurors. In fact, one of the 228 00:18:42,960 --> 00:18:48,400 maybe the only, but certainly one of the few objections UH in a federal 229 00:18:48,440 --> 00:18:56,440 impeachment trial that was made was actually made in the Clinton impeachment trial where one 230 00:18:56,440 --> 00:19:00,519 of the one of the lawyers in the trial referred to senators as jurors, 231 00:19:00,160 --> 00:19:04,359 and Senator I think was Arl Inspector objected and said, you know, we 232 00:19:04,400 --> 00:19:11,000 are not jurors. And he asked the Chief Justice to so find and direct 233 00:19:11,720 --> 00:19:18,400 the u and direct the lawyers to not refer to the senators as jurors. 234 00:19:18,799 --> 00:19:22,559 And Chief Justice rank wast agreed. He said, the senators are not jurors. 235 00:19:23,000 --> 00:19:27,440 And typically that's that's true. The this is a court of impeachment, 236 00:19:27,960 --> 00:19:33,200 and and I think it's more appropriate to consider the senators as both jurors and 237 00:19:33,440 --> 00:19:40,920 judges. Um. And I guess one last thing on that often in impeachment 238 00:19:40,960 --> 00:19:45,759 trials it'll be up to the presiding officer to deal with objections initially, but 239 00:19:45,799 --> 00:19:49,079 then senators will be able to overrule to provide presiding officer and so it's something 240 00:19:49,319 --> 00:19:52,960 to look for in the rules to see how that's handled. Interesting. I 241 00:19:52,960 --> 00:19:56,039 mean, that's it's that's so funny to hear, just as someone who watches 242 00:19:56,079 --> 00:20:02,920 the Texas Senate, because the idea of the senators overruling the lieutenant governor is 243 00:20:02,960 --> 00:20:06,920 not something you see a lot in in the Texas Capital at least, so 244 00:20:07,359 --> 00:20:10,039 that will be a curious thing to watch. I mean, so, I 245 00:20:10,039 --> 00:20:14,079 mean, what you're talking about here is a more political process, right, 246 00:20:14,119 --> 00:20:19,039 And I'm wondering how that affects the representation you know, on both sides, 247 00:20:19,079 --> 00:20:25,720 people prosecuting the case and people you know representating a senator Attorney General Paxton, 248 00:20:26,519 --> 00:20:30,720 is your strategy different than in you know, your typical kind of court case 249 00:20:30,839 --> 00:20:38,359 And if so, how Yeah, no, it it definitely is it a 250 00:20:38,680 --> 00:20:44,920 you know, people have said that impeachment is a political process, and that 251 00:20:45,119 --> 00:20:48,160 is that's long. It's true. It's bound by the Constitution, it's bound 252 00:20:48,200 --> 00:20:52,559 by legislative rules, and there'll be rules of procedure here, but it is 253 00:20:52,759 --> 00:21:00,599 very very much a political process. And U and it's happening in a forum 254 00:21:00,720 --> 00:21:06,759 where people are accustomed to practicing politics. You know that it's happening in the 255 00:21:07,160 --> 00:21:11,440 Senate Chamber of the Senate. Senators are are used to being politicians there. 256 00:21:11,480 --> 00:21:15,960 This Paxixton is certainly a politician. You know, these are people who are 257 00:21:15,039 --> 00:21:21,319 used to dealing with each other as politicians. I did an impeachment once where 258 00:21:22,920 --> 00:21:26,519 you know, we'd have testimony for the day, and then at the conclusion 259 00:21:26,559 --> 00:21:33,000 of testimony, right in the hearing room, there'd be podium set up and 260 00:21:33,079 --> 00:21:37,680 both sides would do press conferences sort of summarizing and analyzing and spinning the day's 261 00:21:37,680 --> 00:21:45,079 testimony. Obviously, don't see that kind of thing in court. One. 262 00:21:45,720 --> 00:21:48,440 One thing I'll be interested to see in the rules is whether there is a 263 00:21:48,480 --> 00:21:56,039 prohibition on ex partey communications, meaning whether either Paxton or the House managers or 264 00:21:56,039 --> 00:22:04,559 the House lawyers can have interactions with the senators about the impeachment outside the proceedings 265 00:22:04,599 --> 00:22:08,960 and and kind of one on one I have, you know, I have 266 00:22:10,680 --> 00:22:12,599 impeachments, seemed that kind of thing, so that, you know, things 267 00:22:12,680 --> 00:22:17,920 play out in the daylight, but then kind of behind the scenes, everybody's 268 00:22:17,960 --> 00:22:21,960 like talking. Everybody in the the you know, the house managers or you 269 00:22:22,000 --> 00:22:26,359 know, are talking. It happens on the federal level. The House managers 270 00:22:26,440 --> 00:22:30,480 talking into the senators. The fence lawyers are talking to the senators, you 271 00:22:30,519 --> 00:22:34,400 know, deals are being discussed, and so it will be interesting to see 272 00:22:34,440 --> 00:22:40,119 if there is a prohibition saying you can't do that, and the senators are 273 00:22:40,119 --> 00:22:44,079 going to act or you know, like a you know kind of you know, 274 00:22:44,720 --> 00:22:48,359 like a court. I'm going to get really in the legal leads here 275 00:22:48,400 --> 00:22:51,079 just for a minute, even more so than we already have, because you 276 00:22:51,160 --> 00:22:55,960 made a point on your Twitter account a few days ago that really interests me. 277 00:22:56,200 --> 00:23:00,720 It was around the idea of how Paxton's kind of top deputies, the 278 00:23:00,799 --> 00:23:06,359 current ones, not the ones who blew the whistle on him and eventually left, 279 00:23:06,759 --> 00:23:10,680 have taken a leave of absence from the agency in order to work on 280 00:23:11,279 --> 00:23:15,079 Paxson's defense essentially, and they're essentially part of his legal team. Of course, 281 00:23:15,240 --> 00:23:18,960 part of this trial is likely to be about the way that Paxston ran 282 00:23:19,079 --> 00:23:23,559 this agency and how he used the agency for you know, his possible benefit 283 00:23:23,640 --> 00:23:27,720 or for the benefit of a particular person. Nate, Paul, I wonder, 284 00:23:27,960 --> 00:23:33,000 and you raised the specter of attorney client privilege privilege there, and I 285 00:23:33,000 --> 00:23:37,759 thought it was a very interesting one, and could Paxton make the argument that 286 00:23:37,960 --> 00:23:42,279 his staffers that are now on his team couldn't be compelled to a deposition or 287 00:23:42,960 --> 00:23:48,880 or a you know, to testify in this because they are essentially working as 288 00:23:48,920 --> 00:23:53,599 his lawyers right now. Yeah, so it presents a weird dynamic. So 289 00:23:53,640 --> 00:23:56,559 that and there are two time periods. You know, there's the time period 290 00:23:56,599 --> 00:24:00,640 where they are working. It looks like they're working or him in his private 291 00:24:00,640 --> 00:24:04,680 capacity as a private citizen now and you know, and they're not being as 292 00:24:04,680 --> 00:24:07,920 I understand it, paid for by the state. So to me, that 293 00:24:07,960 --> 00:24:12,880 looks a lot more like your sort of typical attorney client relationships. So I'm 294 00:24:12,880 --> 00:24:18,920 a private lawyer. If I represent you in something and we have confidential communications, 295 00:24:18,079 --> 00:24:22,559 those are protected by the attorney client privilege. So with some exceptions, 296 00:24:22,599 --> 00:24:27,039 I can't be as your lawyer subpoena to testify about those. So that's period 297 00:24:27,079 --> 00:24:33,839 one. But the previous period, these folks were working in the Attorney General's 298 00:24:33,880 --> 00:24:40,440 office that were being paid for by the state, and it's my understanding, 299 00:24:40,480 --> 00:24:47,960 weren't representing Paxton in any capacity. I think I think there's the argument that 300 00:24:48,880 --> 00:24:53,200 communications and did those circumstances would be protected by the attorney client privilege, it 301 00:24:53,240 --> 00:24:59,400 would be harder to make. There may be other privileges that apply investigative privileges, 302 00:24:59,400 --> 00:25:03,519 and so for the attorney client privilege argument would be would be tougher to 303 00:25:03,599 --> 00:25:08,039 make. Now these would be covered by these issues would be covered by state 304 00:25:08,240 --> 00:25:15,400 law, and laws very state to state to state. I'll not One quick 305 00:25:15,599 --> 00:25:21,160 overlay is that under federal law, which I mentioned this in my uh in 306 00:25:21,240 --> 00:25:26,519 my Twitter thread, federal law. There are cases going both ways on this, 307 00:25:26,559 --> 00:25:33,599 but most courts say that a lawyer paid for by the public for a 308 00:25:33,680 --> 00:25:40,079 public official, uh, those communications, even if they're confidential in the context 309 00:25:40,079 --> 00:25:44,640 of a criminal investigation, they don't get the attorney client privilege. This court 310 00:25:44,680 --> 00:25:48,480 going the other way in a case that I argued. But um. But 311 00:25:48,559 --> 00:25:52,039 so, you know, even if these lawyers were talking to Paxton back when 312 00:25:52,039 --> 00:25:56,240 they worked in the office and he was considered, you know, their lawyer, 313 00:25:57,880 --> 00:26:03,839 there may still be questions about whether whether privilege applies. And you know, 314 00:26:03,920 --> 00:26:08,039 at least in the first instance and maybe probably honestly in the last instance, 315 00:26:08,559 --> 00:26:15,279 these are going to be decisions made by the Senate, by the presiding 316 00:26:15,319 --> 00:26:19,000 officer, and ultimately by the senators, and it could get tricky. Yeah, 317 00:26:19,400 --> 00:26:22,680 I want to ask you a little bit about the argument that Paxiston's lawyers 318 00:26:22,720 --> 00:26:26,839 made this week when they were kind of introduced themselves. It aligned with what 319 00:26:26,880 --> 00:26:30,400 some of the opponents of impeachment said in the House vote, which was essentially 320 00:26:30,440 --> 00:26:36,119 that House investigators conducted their inquiry in secret. They started kind of investigating him 321 00:26:36,119 --> 00:26:40,039 in March. We didn't find out about it until late May on a Wednesday. 322 00:26:40,480 --> 00:26:45,440 The articles were recommended by a general investigating Committee on Thursday, and Paxson 323 00:26:45,519 --> 00:26:48,880 was impeached on a Saturday, and there was really not any chance for Paxixton 324 00:26:49,000 --> 00:26:52,799 to make his case or explain himself. And they argued, you know, 325 00:26:52,839 --> 00:27:00,240 there was no due process. Paxson's lawyers called it a kangaroo court earlier this 326 00:27:00,279 --> 00:27:04,599 week. How unusual did that process of getting to impeachment look to you? 327 00:27:04,720 --> 00:27:07,759 I mean, is there anything to that argument about the kind of lack of 328 00:27:07,880 --> 00:27:17,200 due process here? Well, so, in my experience, it was very 329 00:27:17,319 --> 00:27:22,559 quick and very unusual in that respect. But because impeachments are so rare, 330 00:27:23,079 --> 00:27:26,279 you know, it really is hard to say, oh, this is you 331 00:27:26,279 --> 00:27:29,960 know, this is typically the way it's done. This is not typically the 332 00:27:29,960 --> 00:27:36,119 way it's done. Andrew Johnson was the first president to be impeached, and 333 00:27:36,200 --> 00:27:41,920 I think the impeachment proceedings in his case at the House lasted maybe three days, 334 00:27:41,200 --> 00:27:48,279 So that was an incredibly quick process. Most of the state impeachment proceedings 335 00:27:48,359 --> 00:27:56,839 I've been involved with have lasted much longer, and and due process arguments are 336 00:27:56,559 --> 00:28:02,480 are sometimes make made. I've I've made them when I represented officials who've been 337 00:28:02,519 --> 00:28:07,359 subject to impeachment proceedings. I've sometimes made due process arguments. In one state, 338 00:28:07,400 --> 00:28:11,519 I actually got a judge state judge to enjoin the impeachment proceedings based on 339 00:28:11,559 --> 00:28:19,559 the argument that the House wasn't providing due process. But um, I think 340 00:28:19,640 --> 00:28:25,799 that in that respect, the toothpaste is probably out of the tube. The 341 00:28:25,839 --> 00:28:30,200 impeachment process happened, the vote happened, and now we're a trial in the 342 00:28:30,240 --> 00:28:34,599 Senate um and you know senators, you know, they can vote however they 343 00:28:34,599 --> 00:28:40,880 want for whatever reason they want, and be some will say how we're we're 344 00:28:40,960 --> 00:28:45,240 taking the process than the House into account and how we vote in the Senate. 345 00:28:45,279 --> 00:28:48,640 I'm not sure why they would say that, because, uh, you 346 00:28:48,680 --> 00:28:52,359 know, the Senate's running its own process and you know the senator. Senators 347 00:28:52,400 --> 00:28:56,440 can insist on, you know, whatever level of proof they want in the 348 00:28:56,440 --> 00:29:03,400 Senate. So I don't I don't think right now that there's much there's much 349 00:29:03,559 --> 00:29:08,559 room for a due process argument with respect to the House. Is that largely 350 00:29:10,599 --> 00:29:15,440 true just for this process in general? Like, is this pretty isolated from 351 00:29:15,519 --> 00:29:19,759 court intervention and that it like basically is it is it okay for the House 352 00:29:19,759 --> 00:29:23,079 and the Senate and really now the Senate to kind of make their own rules 353 00:29:23,079 --> 00:29:29,640 and go through those rules and how they vote determines Paxiston's future or are there 354 00:29:29,640 --> 00:29:33,000 opportunities to step in and say, you know, whether it's due process or 355 00:29:33,039 --> 00:29:37,440 something else, they're not following the law here. Yeah. So, so 356 00:29:37,640 --> 00:29:42,680 court fights related to impeachments and impeachment trials aren't unprecedented. And it's going to 357 00:29:42,799 --> 00:29:48,160 depend on the strategy that you know, Paxiston's lawyers want to pursue. If 358 00:29:48,160 --> 00:29:52,079 they think they have the votes for an acquittal, then they you know, 359 00:29:52,160 --> 00:29:57,359 presumably wouldn't waste their time and run to chord. But uh, you know, 360 00:29:59,279 --> 00:30:03,119 again there it depends on the federal level. The Supreme Court has basically 361 00:30:03,160 --> 00:30:10,599 said that with the respect of federal impeachments. They don't touch them. They 362 00:30:10,599 --> 00:30:14,319 considered a case involving a judge. You know, I mentioned that committee procedure 363 00:30:14,359 --> 00:30:18,319 where the Senate, the US Senate said they weren't all the senators weren't going 364 00:30:18,319 --> 00:30:22,319 to sit there and listen to all the testimony, and they assigned a committee 365 00:30:22,359 --> 00:30:26,519 to it. Federal judge said, wait, that's not okay. The constitution 366 00:30:26,559 --> 00:30:32,680 says that the Senate tries the impeachments impeachments, and that federal judge went to 367 00:30:32,799 --> 00:30:37,920 court and the Supreme Court ultimately said, you know what, the Senate gets 368 00:30:37,960 --> 00:30:41,480 to decide. It's up to the Senate how impeachment trials are run. They 369 00:30:41,480 --> 00:30:47,720 get complete authority to decide. So we're not getting involved. I've had other 370 00:30:47,759 --> 00:30:52,759 cases where courts have been involved, have gotten involved the state court case. 371 00:30:52,160 --> 00:30:59,720 State courts they have gotten involved in impeachments in in a case I wasn't involved 372 00:30:59,759 --> 00:31:04,839 in just a few months ago, involving the Philadelphia District attorney, a state 373 00:31:04,920 --> 00:31:11,880 judge. They are actually enjoined house impeachment proceedings. So it's going to depend 374 00:31:11,000 --> 00:31:17,559 on you know what, if the Texas courts get this kind of issue. 375 00:31:17,960 --> 00:31:23,119 You know what, the Texas courts decide to do it. Yeah, all 376 00:31:23,160 --> 00:31:27,400 right, well, we will all eagerly await what the Senate and possibly the 377 00:31:27,440 --> 00:31:30,519 Courts decide here in the future. Ross, thank you so much. This 378 00:31:30,559 --> 00:31:36,160 has been a very helpful conversation and helping elucidate this. Thank you for joining 379 00:31:36,240 --> 00:31:38,799 us, Thanks for having me all right, and thank you to our producer 380 00:31:38,839 --> 00:31:44,519 Justin and thank you to our sponsors Texas State Technical College, Texas BioMed, 381 00:31:44,880 --> 00:31:48,400 Lone Star College, and the Texas Association of School Business Officials. We'll talk 382 00:31:48,440 --> 00:32:00,640 to you'all next week here from Eric Johnson, Brad Buckley, Will Hurd, 383 00:32:00,839 --> 00:32:06,359 Cecil Richards, and many others at the twenty twenty three Texas Tribune Festival, 384 00:32:06,640 --> 00:32:09,839 happening September twenty first through the twenty third in Austin. Join us for a 385 00:32:09,880 --> 00:32:15,559 program full of big conversations headlined by names you know and others. You should 386 00:32:15,079 --> 00:32:17,599 learn more at Tribfest dot org.