by Bill Whitaker
Almost every election now, Americans face what you might call a good citizenship test: Some of us must decide whether, out of party loyalty, to vote for a candidate so utterly contrary to integrity, ethics and good governance that the candidate’s election risks damaging state and country. Texas voters will be guilty of just that — putting party politics over principles — if they re-elect Ken Paxton as state attorney general Nov. 6.
Paxton was damaged goods even four years ago when tea-party Republicans chose him over two eminently qualified conservative Republicans in the GOP primary election, including state Rep. Dan Branch of Dallas. Republicans did so despite then-state Sen. Paxton’s admission that he had broken state law in failing to register with the Texas State Securities Board. He paid a $1,000 fine.
Allegations are that Paxton went around encouraging people to buy stock in Servergy Inc., a North Texas tech company, without revealing that he was being compensated by that company. Among the people the McKinney Republican reportedly deceived were friends, business associates, law firm clients and members of an investment group to which he belonged. According to a U.S. Securities and Exchange Commission complaint, he raised some $840,000 in investor funds for Servergy and received 100,000 shares of stock in return.
To their credit, some Paxton supporters in 2014 rescinded their endorsements because Paxton violated state ethics and securities laws, demonstrating either an ignorance of or disregard for the laws he presumably would be enforcing. Even his hometown police department in McKinney withdrew its endorsement, citing “a criminal offense which could possibly be tried by the presiding district attorney or even possibly the Office of the U.S. Attorney General.”
Nor has the situation improved: Voters casting ballots the next two weeks for attorney general — a post described by some as the “top cop in the state” — will find themselves facing the choice of Paxton, 55, indicted by hometown peers back in Collin County and facing three felonycounts, or Democrat Justin Nelson, 43, a Houston attorney of unquestioned integrity who clerked for former Supreme Court Justice Sandra Day O’Connor, a Reagan appointee. This is one of those decisions that will test Texas Republicans’ claim of championing values.
Ironically, Nelson gives Republicans voting for Paxton back in 2014 a pass, given Paxton hadn’t yet been indicted.
“First of all, I think there is a difference between being investigated and being indicted,” Nelson told me during a campaign stop this month. “Paxton was not indicted at that point and the circumstances of that indictment are real and serious. It was an investigation by a Collin County grand jury in one of the most heavily Republican counties in Texas. And the grand jury there voted to indict him for two counts of fraud — and this fraud stuff was not really in the public domain then — and one count of failure to register (as an investment adviser), which (altogether) subjects him to up to 99 years in prison.”
If that’s not enough, Nelson charges that Paxton has employed every legal maneuver in the book to derail or delay criminal prosecution, including conspiring with fellow Republicans on the Collin County Commissioners Court to refuse payment to special prosecutors tapped to press the case. This is hardly the behavior of a man claiming to be innocent. The matter of whether to pay the special prosecutors has wound up in the lap of the Texas Court of Criminal Appeals, putting it in a politically awkward bind when state and federal courts are increasingly maligned for crass partisanship.
“I’m not going to criticize the Court of Criminal Appeals for taking their time to issue a judgment,” Nelson said. “They’re going to hopefully try to get to the right [decision]. I think legally and common-sensically we know what the right result should be, which is that prosecutors should get paid for prosecuting crimes. It does suggest we must have a serious effort to examine what happens when you’re prosecuting a top political official in your home county because I think we’re likely to continue to see something like this.”
No kidding. Without going too far down another rabbit hole, Texas Gov. Rick Perry in 2013 vetoed state fundingfor a public integrity unit in the Travis County District Attorney’s Office that investigated and prosecuted state corruption. Although the unit had a reputation for going after Republicans and Democrats alike, Republicans routinely blamed it for partisanship whenever one of their own was targeted. The saga is more involved than that, involving a drunken Democratic Travis County DA and dubious charges against Perry, a Republican. Suffice it to say the unit was rendered impotent.
One result of this imbroglio: Texas Rangers often investigate corruption allegations beyond Travis County and refer their findings to district attorneys in the counties where allegedly straying office-holders reside. Problem: DAs in many counties are Republicans, just like the majority of office-holders in the state, which raises legitimate questions about whether those DAs can aggressively pursue charges against party allies. In the Paxton case, special prosecutors were hired — and now partisan county commissioners balk at paying them.
For the record, Nelson sees merit in some Republicans’ reluctance to have a statewide public integrity unit again operating out of the Travis County DA’s Office. However, the situation in 2013 involving Gov. Perry, Travis County DA Rosemary Lehmberg and the Legislature has resulted in pandemonium in Collin County where special prosecutors may well step aside if they’re not paid — further delaying the Paxton corruption trial, now relocated to Harris County.
“I mean, think of this — we’ve got the top cop, the top lawyer for the state of Texas, saying that prosecutors should not be paid for prosecuting crimes, at least in the one instance in which it’s his crime they’re trying to prosecute,” Nelson said. “Paxton cannot even serve on a jury now. I don’t think he can even appear before court to argue (cases) based upon State Bar rules, which is just crazy. And so literally the only thing he has said in court lately is ‘Not guilty, your honor.’ It’s nuts.”
Perhaps mercifully, Paxton has been restrained by a judge’s gag order from discussing the indictments, though he and supporters call the charges a “witch hunt.” During Paxton’s May 17 campaign appearance before the McLennan County Republican Club, supporter and friend Scott Salmans in introducing him called the state allegations a “false sham” partially instigated by the Obama administration. The current charges, however, come from a grand jury of Paxton’s Collin County neighbors and fellow residents, some presumably Republican. It probably doesn’t help that Paxton, as a legislator, voted for the law he’s accused of violating.
Salmans’ Paxton pitch was a compelling one for Republican activists — Paxton battling human trafficking, Paxton championing religious liberty, Paxton fighting federal overreach. And in a 2015 statement, Paxton insisted he seeks an “opportunity to tell my story — which the grand jury did not hear — in a court of law.” Meanwhile, every major newspaper in Texas has endorsed Nelson, including the Dallas Morning News which last week argued the “state’s top lawyer should be above legal and political reproach.”
If elected, Nelson vows he’ll reconsider pending lawsuits against the federal government. He vows to drop the suit Paxton filed over the Affordable Care Act that, if successful, could leave Texans with pre-existing medical conditions without insurance or facing higher premiums. He vows to press reform of the state’s redistricting policy, which now allows legislators to gerrymander legislative and congressional districts in ways favoring their party’s candidates. He promises a change of ethics in the State Attorney General’s Office. As an example of what he’s fighting, Nelson notes that “Paxton refused to do his job and provide a legal defense for the Texas Ethics Commission when it was sued by Empower Texans, one of Paxton’s largest political donors.”
Can Justin Nelson, his press conferences held behind a sign that reads, “Nobody is above the law,” win election in a state where political tribalism is baked into the electorate? The nominee faces not only the challenge of trying to convince Republicans to vote principle over party but campaigning in the shadows of Beto O’Rourke’s rock-star status. In the end, the question of whether Texans re-elect an indicted state attorney general goes not just to the general intelligence of we the voters but possibly our own integrity. As Nelson notes: “There is no better example of how we need to clean up Texas government than Ken Paxton.”