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GOP senators, open to Paxton conviction, flipped when they realized they were still short the votes


GOP senators, open to Paxton conviction, flipped when they realized they were still short the votes

Sep 20, 2023 | 6:48 pm ET
By Patrick Svitek
GOP senators, open to Paxton conviction, flipped when they realized they were still short the votes
Lt. Gov. Dan Patrick, center, bows his head in prayer as state Sen. Brian Birdwell, R-Granbury, leads the Senate in prayer during the fifth day of suspended Attorney General Ken Paxton’s impeachment trial in the Senate chamber at the Texas State Capitol in Austin on Monday, Sept. 11, 2023. (Juan Figueroa/Pool via The Dallas Morning News)

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In the closing arguments of the impeachment trial of Attorney General Ken Paxton, Rep. Jeff Leach, a former Paxton ally who was now making the case against him, told his Senate colleagues that their next vote would be “the hardest vote, the most difficult vote, the heaviest vote” that they would ever cast.

After 13 witnesses and dozens of hours of testimony and cross-examination — it was finally time for the Texas Senate, acting as the jury, to deliberate.

Senators ate lunch and then fanned out across their side of the Texas Capitol. They deliberated for just shy of eight hours.

By Saturday morning, the jury had reached a verdict — and it was decisive. The Texas Senate voted to acquit Paxton on all 16 articles of impeachment that alleged he misused his office to help his friend and donor Nate Paul investigate his enemies in exchange for favors. No article received even close to the 21 votes required to convict Paxton — and permanently remove him from office.

Behind closed doors, however, it was not a foregone conclusion that Paxton would skate.

Multiple senators who spoke with The Texas Tribune described deliberations that began in good faith, but turned toward an acquittal consensus as political calculation set in among Republicans. In the end, it appeared that the Senate may have been close to the threshold for conviction, but Republicans did not want to take a tough vote if they could not get there.

“I feel there were six senators who were ready to be the 21st vote,” said Sen. Nathan Johnson, D-Dallas. “But they didn’t want to be the 20th vote.”

Ultimately, only two Republicans — Sens. Robert Nichols of Jacksonville and Kelly Hancock of North Richland Hills — voted with Democrats to convict Paxton. But at least five more GOP senators appeared to be in play during deliberations, according to four people familiar with the talks. There was never any poll taken of how senators would vote, so they were left to gauge their colleagues’ thinking through personal observations and discussions in private.

Among those five were some who had long been seen as potential problems for Paxton. There was Houston Sen. Joan Huffman, the chair of the Senate Finance Committee, who had questioned Paxton in 2021 over his hiring of an outside lawyer to investigate Paul’s claims that he was the target of a conspiracy by law enforcement. Even Paxton’s lead lawyer, Tony Buzbee, publicly acknowledged in a mid-June podcast that Huffman “may not be pro-Paxton.”

“Any characterization that I changed my mind during deliberations is completely false,” Huffman said in a statement when asked about being open to voting to convict. “No one could have known my final decision until I voted on the Senate floor as votes were never taken during the deliberation process. I impartially considered the law and the evidence as required by my oath.”

Another one of the five was Sen. Mayes Middleton of Galveston, who had donated hundreds of thousands of dollars to two of Paxton’s primary challengers in 2022. Middleton has been conspicuously quiet since the verdict — he did not respond to a request for comment, and he had not publicized any explanation of his vote as of Wednesday afternoon.

The Houston Chronicle first reported Tuesday that Huffman and Middleton were among multiple senators who considered voting to convict but ultimately declined.

Sen. Drew Springer, R-Muenster, went further in an interview with his local newspaper published Monday, suggesting half of the 16 Republican senators who voted to acquit had been close to deciding the other way. People familiar with the deliberations said Springer was among those who were on the fence, but his spokesperson told the Chronicle that “evidence alone impacted Sen. Springer’s decision.” He did not respond to messages seeking comment from the Tribune.

Paxton allies had especially zeroed in on him as GOP senator up for reelection next year in a blood-red district. They released polling in his district and dangled a serious primary opponent.

Ultimately, Republican senators largely justified their acquittal votes by saying the House simply did not meet the heavy burden of proof. But the political pressure was inescapable, as Paxton allies bombarded Republican lawmakers with TV ads, text messages, billboards and individual threats of primary challengers. Toward the end of the trial, former President Donald Trump broke his silence on the Senate proceeding, condemning Paxton’s “shameful impeachment.”

And then there was Patrick, the all-powerful lieutenant governor who presided over the trial and made an effort to show his impartiality, impressing even some of his skeptics along the way. But he took $3 million from a pro-Paxton group in June, and any of his skeptics’ optimism crumbled when they saw him conclude the trial by giving a fiery speech denouncing the House impeachment process.

It instantly sparked speculation that Patrick knew the verdict ahead of time and had been in contact with jurors, perhaps lobbying them during deliberations. He has since denied applying any pressure to senators, calling it a conspiracy theory from the House.

“It’s a bunch of losers who are crying now in their beer saying, ‘Oh, well, it has to be someone else. We did our job,’' Patrick said in a radio interview Tuesday. “They did nothing.”

Jury begins

Jury deliberations began shortly before noon Friday.

There was no indication how long they would last. Patrick told them if they could not reach a verdict by Sunday night, he may sequester them in the Capitol. They were to pack a bag of clothes just in case.

It was nothing like “12 Angry Men,” the 1957 movie where a jury vigorously debates as a whole, multiple senators said in interviews. After all, the senators didn’t need a unanimous verdict like in a criminal trial. Instead they went off on their own or broke off into small groups — no more than roughly six senators meeting at once to discuss their views. Some sat at their desks to review their notes on the Senate floor, while others gathered in the hallway or committee room behind the chamber.

Johnson said he thought most senators had “very strong leanings” by the end of closing arguments but wanted to return to the evidence to address “lingering questions” or confirm things they had heard. He said some of the conversations among senators were “more earnest than others” and he had “some really good, patient conversations with several members," including Republicans.

Sen. Paul Bettencourt, a Houston Republican close to Patrick who had voted to dismiss the case pretrial, said a “a couple dozen or more” senators went to the Betty King Committee Room to watch what he considered a key piece of evidence. It was a video of a 2020 meeting between Nate Paul, his lawyer Michael Wynne and Paxton’s deputies, with Paul laying out his allegations against the authorities. Bettencourt recalled that senators listened “intently” and some stayed for the entirety of the video.

“I felt that there was a pretty substantial coalescing around the video making it demonstrably clear that it was not a baseless complaint” by Paul, Bettencourt said, nodding to the prosecution’s insistence that it was a waste of the offices’ resources and time to take Paul’s case seriously.

Another senator, granted anonymity to discuss the private deliberations, said the audio of the video was poor quality and they did not understand how it could outweigh all the other evidence in any case.

In the 5 p.m. hour, a poll was taken of who was ready to vote. Bettencourt said a “substantial minority” was not ready — “including people in all the camps” — so they kept deliberating. Another senator confirmed Bettencourt’s account.

They had fajitas for dinner, but there was no gathering of the full jury — individuals and small groups came and went.

The mood was changing by late evening, however, according to multiple senators. Johnson said it “turned deathly pale” as it became clear some Republican senators were moving toward voting inconsistent with how they “actually felt.”

“You could tell they were beginning to be pressured,” Sen. Roland Gutierrez, D-San Antonio, said.

Hancock, the Republican senator who voted to convict, later told the Dallas Morning News that “a lot of people’s opinion changed overnight.” He declined to elaborate, both to the newspaper and to the Tribune.

Calls to Dan Patrick

While jurors deliberated Friday, Patrick and his staff went to see “Oppenheimer,” the summer blockbuster about the making of the atomic bomb, before going out to dinner at a Mexican restaurant. Patrick said he got a call from a senator “right in the middle of the movie when the bomb’s gonna drop.”

“[The senator] wanted to know if they had reached their decision, if they could go home early,” Patrick said in an interview with the Tribune on Tuesday.

Senators apparently were cleared, as several were seen leaving the Capitol before the 8 p.m. end time that Patrick had given them.

Patrick said he got a second call from a senator later that night, asking about the logistics of the Saturday vote.

Patrick declined to name who he spoke with but denied discussing jury deliberations with them.

“People were still formulating an opinion” Friday night, Bettencourt said, “but I felt like there were no eureka moments of, ‘Here’s the smoking gun. We found it.’”

Others left the Capitol that night mostly resigned. Paxton, they believed, was headed for acquittal as it became clear Republicans were not willing to take a tough vote if they could not reach the overall threshold to convict.

Not all of the senators have painted the same picture of what happened.

Sen. Tan Parker, R-Flower Mound, said in a radio interview Monday that the final outcome was a surprise to members. Sen. Phil King, R-Weatherford, said he did not think any minds were changed in deliberations.

Some GOP senators and people close to them said they started really forming an opinion a couple days before deliberations, when the House rested its case. They were taken aback that the House had nothing more to offer.

Verdict day

In any case, there was little deliberation left to be had by Saturday morning. Senators were scheduled to resume deliberations at 9 a.m., and while a handful were still reviewing evidence, it seemed like a verdict was near.

Mitch Little, one of Paxton’s attorneys, later recalled that he was showering around 9 a.m. Saturday — when he got a call from Patrick’s chief of staff, Darrell Davila. The jury had reached a verdict.

Shortly after 9:30, Patrick’s office gave notice to the media that the jury would vote on the articles at 10:30 a.m.

Paxton’s lawyers felt they had done a good job raising doubt about the testimony of the House witnesses, but they had no read on the jury.

“Not one of them ever gave any indication of where their heads were in all this,” Paxton’s lead lawyer, Tony Buzbee, later said in a radio interview. “There were no leaks. I had no idea. My team had no idea. My client, Attorney General Paxton, had no idea how these jurors would vote.”

After the vote to acquit, Patrick excused his impeachment counsel, Lana Myers. Then Davila laid a new piece of paper on Patrick’s desk.

“Longtime observers like me,” Bettencourt said, “I knew something was coming.”

Patrick laid into the House, harshly criticizing the impeachment process and calling for an audit of the costs of the investigation and trial. It was a political bombshell, ratcheting up a Texas GOP civil war that was already raging. At least one senator who voted to convict, Gutierrez, walked out in disgust.

Within an hour and a half, it drew a furious response from Phelan, who accused Patrick of showing he was biased all along.

One of the House lawyers, Dick DeGuerin, had a simpler — but maybe not unrelated — explanation in a TV interview three days later.

“The Republican senators turned chicken,” DeGuerin said.

Patrick’s speech

The questions began almost immediately. What did Patrick know, and when did he know it?

By Sunday evening, the Wall Street Journal published an editorial ​​saying the “fix was in from the start and that Mr. Patrick lobbied his fellow GOP Senators to unite against the House articles of impeachment.” Patrick insisted on Twitter that all he did was return phone calls from two senators who had “procedural issues” during the deliberations.

In media appearances Monday, he denied speaking to any senators about their deliberations and said he actually thought going into the trial that Paxton would probably be convicted due to the large number of articles. In a radio interview, Bettencourt said the Wall Street Journal editorial board is “just flat lying through their teeth ... and there's just no senators that will testify otherwise, Democrat or Republican.”

As for the Saturday timeline, Patrick told Lubbock radio host Chad Hasty that he had prepared two speeches — and wrote the one he ultimately delivered at 4 a.m. Saturday. He emphasized to Hasty and other interviewers that he decided to give it immediately after the verdict — rather than later — because he wanted his feelings on the House process to be part of the court record.

Patrick told the Tribune that the other speech he prepared was for if Paxton had been convicted. He said he planned to criticize the House process regardless.

“I would have said very, very similar things – in fact, pretty much identical,” he said.

While opinions vary on what exactly may have ultimately swayed the swing votes, few disagree that it was an inherently political process from the start. The outcome, they reason, reflected that.

“My cynical lens says Republicans were gonna go in there and make a political decision,” Gutierrez said. “Hell, I thought that from Day 1. I was proven right.”