In yet another acerbic court filing, this week attorneys appointed to prosecute Texas Attorney General Ken Paxton vehemently defended themselves against allegations of misconduct and once again slammed Paxton’s efforts to have the three felony indictments against him thrown out of court.
Speaking to Paxton’s defense strategy of accusing prosecutors and a “vindictive” judge of wrongdoing in handling his case, the prosecutors opened with this line: “Paxton has taken a page from the play book of Don Draper, the Madison Avenue advertising executive on ‘Mad Men,’ who told a colleague embroiled in a similar strait, ‘If you don’t like what’s being said, then change the conversation.’ That’s exactly what Paxton has done.”
This summer Paxton was indicted on three felony charges—two counts of first-degree securities fraud and one count of third-degree failure to register with the state securities board. The most serious of those charges accuse Paxton of duping a fellow Republican lawmaker and another businessman into putting their money into a North Texas tech company that’s now under investigation for lying to investors. Prosecutors claim Paxton didn’t disclose the company was paying him to solicit investors. (While he was running for AG, Paxton admitted to state securities violations and paid a slap-on-the-wrist fine, but the Rick Perry-appointed members of the state securities board inexplicably failed to refer his case to criminal prosecutors.)
In his attempt to quash the indictments against him, Paxton has saved most of his venom for state District Judge Chris Oldner, the Republican who oversaw the grand jury that ultimately indicted Paxton. The AG has not only accused the judge of leaking information about the sealed indictments to the judge’s wife (Paxton included text messages between Oldner’s wife and a county commissioner gossiping about the case) but Paxton also insisted Oldner somehow angled to get the case assigned to his trial court.
Prosecutors dismissed the text messages, saying the indictments weren’t sealed by court order. To the more serious allegation—that a state district court judge conspired to get a high-profile case in his courtroom—prosecutors called Paxton’s theory a “Grassy Knoll-like conspiracy” that comes dangerously close to accusing a sitting judge of criminal misconduct without one speck of evidence to support the claim.
Still, in his motions to throw out the case against him, Paxton also accused the special prosecutors themselves of misconduct, mainly because they talked to the media about the case while the grand jury was still mulling the charges.
This summer when a Collin County grand jury returned the indictments against Paxton, news of the charges broke two days before the indictments were unsealed and released to the media. Confirming the charges in stories like this in the New York Times was Kent A. Schaffer, one of three Houston attorneys that have been appointed to prosecute Texas’s first sitting attorney general in more than 30 years to face criminal indictment. (Schaffer, Brian Wice and Nicole DeBorde were appointed after Collin County’s district attorney, a longtime business partner and friend of Paxton’s, recused himself from the case.)
Paxton cited that Times story in his motion to quash the charges against him as evidence prosecutors leaked word of sealed indictments. Paxton calls it “a clear attempt to taint the potential criminal jury pool.”
Not so much, according to the special prosecutors, who write in their response that none of what they said to the media was outside the rules. And regarding that Times story: “To argue, as Paxton does, that confirming that he had been incited some 48 hours before he was to voluntarily surrender violated [the rules surrounding grand jury secrecy] is to strain at a gnat and swallow a camel.”
And, prosecutors say, even if they did run afoul of the rules in confirming that the indictments existed two days before the district clerk made them public: so what? “Paxton ignores the tenet that the violation of a disciplinary rule does not entitle him to the pre-trial windfall he seeks unless he can show the violation affected his substantial rights or deprived him of a fair trial,” they write.
Again prosecutors accused Paxton of trying to steer the subject away from the serious allegations against him by attacking the system that indicted him on three felony counts: “Paxton’s ploy, as any Google search of this case will readily reveal, is merely the latest in a series of unwarranted personal attacks leveled against the Special Prosecutors in the media, by Paxton’s spokesmen, public relations operatives, and political supporters.”
This article appears in Nov 12-18, 2015.