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Can Ken Paxton be forced to testify at his impeachment trial?

A man in a suit speaks in front of a microphone in the foreground with two people in the background.
Bob Daemmrich
Texas Tribune
Texas Attorney General Ken Paxton speaks after being sworn in to office on Jan. 10 at the Capitol. Behind him are state Sen. Angela Paxton and Gov. Greg Abbott.

Suspended Texas Attorney General Ken Paxton is fighting to stay off of the witness stand during his September impeachment trial, but prosecutors oppose the move, hoping to have the option of forcing Paxton to testify under oath.

Paxton’s legal team has asked Lt. Gov. Dan Patrick, who will preside over the trial in the Texas Senate, to forbid the House impeachment team from issuing a subpoena that would compel Paxton’s testimony.

Paxton’s lawyers argue that impeachment is a criminal proceeding, so Paxton is entitled to the same legal protections — namely, not being forced to testify — as any criminal defendant.

“Given that an impeachment trial is legally considered to be a criminal proceeding, there can only be one conclusion: the Attorney General may, but cannot be forced to, testify,” Paxton’s lawyers wrote in a July 7 filing to the court of impeachment.

Heading toward Paxton’s trial, set to begin Sept. 5, House impeachment managers argue that senators drafted and approved trial rules that give them the power to compel Paxton to appear as a witness.

No rule “limits the individuals who may be summoned to testify before the Senate. Specifically, [no rule] excludes Paxton from those persons who must appear and testify if subpoenaed,” they argued in a response filed with the court of impeachment.

While Paxton has a Fifth Amendment right to decline to provide incriminating testimony, he must assert that right specifically from the witness stand, impeachment managers argued.

Many of the articles of impeachment — approved 121-23 by the Texas House in May, setting course for the state’s third impeachment trial since 1876 — accused Paxton of abusing his office to repeatedly help a friend and campaign donor, Austin real estate investor Nate Paul.

Federal investigators have been looking into Paxton’s ties to Paul since 2020, when top executives in the state attorney general’s office accused Paxton of accepting bribes and misusing his authority to help Paul. In June, Paul was charged with eight felony counts of lying to financial institutions to obtain business loans.

“Paxton’s misdeeds with Paul are, in large part, the basis of this impeachment trial,” impeachment managers argued. “Given these circumstances, it is understandable why Paxton may think some of his answers to questions in the impeachment trial ‘would in themselves support a conviction’ or ‘furnish a link in the chain of evidence needed to prosecute,’ the standard necessary to invoke his right against self-incrimination.”

Whether Paxton can be compelled to take the stand is expected to be settled in the opening phase of trial when Patrick, in his capacity as judge, rules on pretrial motions or asks senators to decide pretrial issues by a majority vote that would be taken without discussion or debate.

The fight over Paxton’s testimony has emerged as a mini-drama within the larger impeachment saga — and the outcome of the fight could affect his legal battles outside of the impeachment proceedings, legal experts said.

Paxton has been under indictment on state securities fraud felony charges since 2015. He also faces a whistleblower lawsuit from former lieutenants who claim they were improperly fired in retaliation for reporting Paxton to the FBI and other law enforcement. That led to an FBI investigation that was transferred earlier this year to the U.S. Department of Justice — and reports that a federal grand jury in San Antonio is looking into details of Paxton’s relationship with Paul.

Not having to testify before the Senate means Paxton would have fewer opportunities to reveal information that could be used against him in those proceedings, legal experts said. If Paxton pleads the Fifth while on the stand, for example, lawyers in the whistleblower lawsuit could point to that as an indication of guilt.

The same is true of the impeachment trial. Senators could interpret Paxton’s refusal to answer questions on the stand as a sign of guilt, said Michael Smith, a professor at St. Mary’s University School of Law who specializes in criminal and constitutional law.

Paxton’s team is trying to prevent that, too. They’ve asked Patrick to tell senators they can’t infer guilt if Paxton chooses not to testify.

“There are implications to pleading the Fifth, both on the civil side of things as well as potentially in the impeachment itself,” Smith said. “But then there’s just the optics.”

Paxton is trying to avoid those complications.

“The order [Paxton] would like from Dan Patrick is an order saying you don’t have to testify in front of the Senate in this impeachment proceeding,” said Mike Golden, a former trial lawyer and director of advocacy at the University of Texas School of Law. “And we’re going to tell the lawyers for the impeachment managers that they can’t argue that your refusal to testify should somehow be held against you.”