WEBVTT 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.