The Texan Podcast - Inside the Impeachment: Paxton on Trial — Day 3 (with Adam Loewy)

Episode Date: September 7, 2023

Read more about the impeachment: https://thetexan.news/paxton_impeachment/Today, attorneys in the impeachment trial focused on finishing testimony from Ryan Bangert, one of the former deputy attorneys general who raised criminal allegations against Attorney General Ken Paxton. Ryan Vassar, another former employee of the attorney general’s office, was called to testify next.Some major highlights of the day included:Bangert discussed a lunch he had with Paxton and Austin real estate developer Nate Paul, saying that he had “ethical concerns” about the meeting. Bangert said that during the lunch, Paul detailed his “theory of grievances against the Mitte Foundation” — a charitable organization in litigation against Paul’s business.Bangert claimed that it was a “professional death warrant” to bring the allegations against Paxton to the FBI and asserted that he was “constructively discharged” from his position, having his responsibilities stripped from him in the weeks that followed the criminal complaint.During the cross-examination, defense attorney Anthony Osso homed in on the allegations made against Paxton about the so-called “midnight opinion” — an informal opinion issued by the office that the whistleblowers say allegedly benefited Nate Paul.The prosecution then called Ryan Vassar, another former employee of the attorney general’s office, to the stand. Unlike the first two witnesses, Vassar was fired and joined the lawsuit under the Texas Whistleblowers Act.Vassar became visibly emotional when questioned by the prosecution regarding his reaction to being referred to as a “rogue employee” by Paxton.

Howdy folks, this is Mackenzie DeLulo, Senior Editor at The Texan. In this episode of Inside the Impeachment, Paxton on Trial, we're joined by attorney Adam Lowy to discuss the third day of the trial and his thoughts on the proceedings so far. For a quick recap, today, attorneys in the impeachment trial focused on finishing testimony from Ryan Bangert and beginning testimony from Ryan Bassar, two former senior staff members who raised criminal allegations against Attorney General Ken Paxton. Here are some of the main highlights. Bangert discussed a lunch he had with Paxton

and Austin real estate developer Nate Paul, saying that he had ethical concerns about the meeting. Bangert said that during the lunch, Paul detailed his theory of grievances against the Midi Foundation, a charitable organization in litigation against Paul's business. Banger claimed that it was a professional death warrant to bring the allegations against Paxton to the FBI and asserted that he was constructively discharged from his position, having his responsibilities stripped from him in the weeks that followed the criminal complaint.

During the cross-examination, defense attorney Anthony Osso homed in on the allegations made against Paxton about the so-called Midnight Opinion, an informal opinion issued by the office that the whistleblowers say allegedly benefited Nate Paul. The prosecution then called Ryan Vassar, another former employee of the Attorney General's office, to the stand. Although unlike the first two witnesses, Vassar was fired and joined the lawsuit under the Texas Whistleblowers Act. Vassar became visibly emotional when questioned by the prosecution regarding his reaction to being referred to as a rogue employee by Paxton. Enjoy this episode.

Howdy folks, Mackenzie DeLulo here and I am so glad to be back after a few days out sick. Thank you, boys, for so gracefully handling the pod while I was out. Today, we have another special guest joining us, and we are so glad to have Adam Lowy of the Lowy Law Firm. If you live in or around Austin, you have no doubt seen his face and his law firm's name on a billboard or a bus. We have a celebrity in our midst. He is also an avid follower of and commentator on the Texas legislature. And we are so thankful, Adam, that you made the time to join us on this very busy Thursday and chat all things Paxton impeachment.

Welcome, Adam. Thank you so much. Okay. I want to start off just by asking you for your general observations of the trial so far. What has surprised you? What has stood out to you? Where are you at in your observations of the proceedings? Well, the thing that first struck me and continues to strike me is the fact that Ken Paxton is not in the chamber. As we all know, he started in the chamber. There was even a little fight with the lieutenant governor and the lawyers about whether he

had to be there, and then he left. I will tell you, as a lawyer that does trials, you pray for the day, especially if you're the plaintiff's attorney, which I am, you pray for the day that a defendant does not show up to trial, because in general, that infuriates the jury. Juries sit there and think, why am I sitting here day after day when this defendant is not here? And I believe, and I've gotten some sourcing on this from some Texas senators that I know, not directly from some people around them that there is anger that ken paxton is not in that chamber i cannot believe he's not sitting there especially when as we know his wife

is sitting there and i think that's the first thing that really strikes me about this proceeding and i would say also it's notable that he was there for what the first hour or two as on the first day it wasn't even that he was there until lunchtime on the first day. He was in and out very, very quickly. So certainly notable. And again, you see every time they break, his wife stands up, you see her in the chamber, she's there and listening to all of these allegations that are being levied against her husband. So very notable and interesting perspective. So Adam, is it correct to say you primarily serve your clients as a personal injury lawyer? That's correct. I do personal injury law. I represent people that have been hurt.

And I generally am up against insurance companies. And what's a notable part of this trial, which we can get into, is Texans for Lawsuit Reform, TLR. TLR is a group that I personally worry about every other year because they're on the other side of what I do and that they push for tort reform. And I, of course, am a tort lawyer. And I just find it amazing that I'm living through this moment in which certain parts of the right, not all of the right, but certain parts of the right, have concocted this conspiracy theory regarding TLR. And I'm just sitting here watching this thing play out. And I'm just amazed that we are seeing parts of the right attack TLR. Yeah, it's a very interesting perspective to see

this actually play out in real time, where you're seeing names being dropped in trials, consultant names, entity names, when you have lawyers prodding witnesses to try and get the words like Texans for a lawsuit reform to come out of their mouth. Yeah, Brad, you have something to add? We kind of saw the groundwork for this late in the primaries last year where TLR candidates were going up against Defend Texas Liberty candidates in many House primaries. And that's where we saw a lot of this anti-TLR rhetoric begin or at least hit mailboxes of voters. And now it's, you know, a firm topic in the Senate. And as Adam alluded to, you know, it's a very interesting

schism, not something that existed, you know, four or five years ago. Yeah, absolutely. So, Adam, in of, you said you've had a lot in your line of work, trials are a very prominent part of what you do. I know you practice a different type of law than what we're seeing being utilized in the trial, but you have a lot of perspective to offer as a member of the profession on how you think both legal teams, both Paxton's defense and the house manager's team have so far handled the trial. So give us some insight into that. And we'll certainly get into the nitty gritty of TLR and all the arguments that we've heard

up until this point. But I want to hear your perspective on the teams themselves. Well, I think, first of all, we're dealing with really good lawyers. I know that whenever there's a high profile trial with good lawyers, everyone online likes to say that, oh, Busby's not doing well or Hardin's not doing well. But all of these gentlemen are some of the best lawyers in the state of Texas and have been for a while. I think people need to realize that as a lawyer, you are only as good as the facts of your case. Lawyers can take facts and do the lawyering thing and try to make facts look better.

But at the end of the day, if there are bad facts, there are bad facts. So I think that Tony Busby has the much harder road here. I think he's done a good job of trying to create the story. Some might call it a conspiracy theory. Some might say it's true. But trying to develop a story that explains why the House did what they did. But I think it's a very tough road that he's on. But I think he's doing the best job he can do. On the flip side, I think Harden is still Rusty Harden. I think a lot of his directs have been very good. But at the end of the day, we're only a few days into this. And I think we're going to have to wait for some more evidence to come out to really see who's laying out the better case.

Adam, we've seen Busby, especially in his team, throwing a lot of objections and trying to gum up the process. In your mind, for Harden, what makes a good direct examination that you've seen in the trial so far? I think Harden's doing a really good job of just letting these whistleblowers talk and present themselves. I think these guys are very credible. I will disclose I'm actually friends with one of them, not one who has testified yet, but one that I do know. And I think these guys are in many ways kind of the top of the conservative legal field and that you have men and women that go into conservative legal causes, such as with First Liberty, such as with some other special interest groups. And a lot of them were rotating through the attorney general's office. So I found their

testimony quite credible, like the gentleman yesterday, Mr. Mateer, the gentleman today. I don't personally see that these guys went in there with the idea that they were going to stage a coup or do a mutiny. I think that they were doing the best they could do, and they saw some very bad things happening, and they made the very bold move to collectively go to the FBI. So essentially, Hardin's just laying the groundwork and letting the witnesses speak their minds on what's been going on and lay out the groundwork. Because again, at least with the Mateer and Banger, I mean, these are witnesses that we have not heard from for years. And if we had heard from them at any point, it was a snippet of an interview,

right? It was something like these men have gone back to their jobs, gone back to their families, and been very largely out of the public eye. So let's go ahead and jump into the TLR discussion. I want to kind of real fast for our listeners, if you wouldn't mind, Adam, summarize what has been said about TLR in this proceeding so far and why they've all of a sudden become a name in all of this. Well, as way of background, TLR, Texans for Lawsuit Reform, started well over 20 years ago now in response to what many conservative people and donors felt were an abuse of the legal system. Specifically, their settlements were too big, verdicts were too big, and their first big victory was a medical malpractice tort reform. In 2003, they led

the charge for a constitutional amendment that has made medical malpractice cases nearly impossible in the state of Texas. And since then, every session, they will pursue various causes. Now, recently, they have branched out into other things. They were actually involved in school choice for a while, and they probably still are right now. They did trucking a few years ago, which was their most recent thing in terms of my line of work. But they still remain a very powerful entity.

I believe that this group, TLR, saved the Republican majority in this Texas House of Representatives in 2020. It was a very close election. Democrats were very confident that they would get the chamber back. And in the last minute, TLR put something like $20 million in these races and helped save the majority. So for a Republican in the Texas legislature, they like TLR. I mean, this is not a group that is disliked among Republicans. Now, to get to the point here, the theory that has been floated is that TLR, specifically Dick Trabusey and a former Texas Supreme Court justice, in a primary against Ken Paxton, and that primary included George P. Bush. I believe the TLR raised or spent $10 million to help Guzman, and as we know, she didn't even make it to the runoff. Paxton made it to the runoff

against Bush. Paxton destroyed Bush in the runoff, and then Paxton won the general election. So the TLR theory here is that TLR, upset that they couldn't get rid of Paxton through an election, are now trying to pursue a coup, so to speak, of trying to encourage these whistleblowers to report him to the FBI and try to get him out of office through other means. And it is a conspiracy theory, to say the least. I think the evidence is extremely shaky on this point. And I think the main point that people need to recognize is the Republicans in that Texas Senate like TLR. Most of them are funded by TLR. They all know TLR. So this idea that Tony Busby and Paxton are trying to push that they are a nefarious, bad faith group is just not going to

hold water. And we'll continue to see that be a point of contention between the prosecution and the defense, I'm sure, over the coming days, particularly as we get more time under our belts and different witnesses on the stand. Let's go ahead and jump into the details today. Let's get to Ryan Bangert. Of course, Ryan Bangert is a former employee of the Attorney General's office, former Deputy Attorney General, and was very high up on the Attorney General's list of employees, list of staff, senior staff member. They talk about the eighth floor a lot when throughout the testimony as being the place where the senior staff had their offices, met with the Attorney General and just conducted business of the agency. So let's go ahead and jump into that. Matt, I want you to run through and also noteworthy that

Banger, like Mateer, who we heard from yesterday, resigned. He was not fired from the office of the attorney general, and he did not join the whistleblower lawsuit. Matt, if you wouldn't mind running through the arguments from the prosecution today as they questioned Bangert. Well, in my observation, there's been kind of two strategies for the defense. As Adam mentioned, there's been painting this conspiracy, so to speak, but then there's also been attacking the credibility of the witness and the substance of the evidence offered through the witnesses or by the prosecution. And I think with Attorney Anthony Oso, who did most of the cross-examination today of Bangert, you saw him largely stay on that track of attacking the substance of the evidence. We saw kind of this narrative come about from when Mateer was on the stand of Ken Paxton handed the keys of the attorney general's office to Nate Paul. So now you see the defense really taking an effort to try and whittle out the substance of that accusation. So, in making that approach today, Oso questioned

when Nate Paul had submitted public records requests to various state agencies, such as the Texas Department of Public Safety or the Securities Board, etc. They rejected and appealed those public records requests to the AG's office. He went down the rabbit hole of explaining, you know, how the AG's office rejected those appeals, said that they didn't have to turn over those records and kind of contrasted that with the statement of Nate Paul having the keys of the AG's office. Well, if he had the keys of the AG's office, you know, he would have got them to wave the magic wand and release the records that he wanted. But he didn't get that. And then he moved on to the infamous Midnight Opinion.

And they've been kind of attacking. It's been kind of a play on words, so to speak, or I guess a nuanced thing, you know, whether or not this opinion was an opinion or informal guidance and whether there is such a creature and also what the effect of it was, not only on Nate Paul, whether he actually benefited from the guidance, but whether or not a whole bunch of Texans benefited from the guidance. You saw Oso reveal a text message that hasn't been revealed at any other point in this process from Ken Paxton to Bangert saying, thank you so much for your hard work on crafting this guidance. Hundreds of Texans are going to benefit on this because of the potential that

their foreclosures are going to be delayed because of the, you know, the economic harmful spot that they've been in with COVID. And, you know, basically started pushing him back, trying to push him into a corner, you know, and get out there, I think, for the senators to say, yeah, there was an alternative explanation behind all of this. That the attorney general had some sort of positive interaction with Banger, particularly after that weekend where he had been in questioning with the prosecution, said that there had been a lot of negative interaction. A motivation to benefit hundreds of Texans, as the quote specifically said in the text, which creates reasonable doubt.

So then in terms of, Brad, the prosecution, like the very lead up to this and establishing credibility with the witness, what can you add to that conversation? Well, we saw right off the bat, as Rusty Hardin did with Jeff Mateer the previous day, trying to establish the conservative credentials of Bangert as a witness, discussing his time with the Alliance for Defending Freedom, which is a very conservative legal organization, similarly aligned to First Liberty. To Adam's point, where a lot of these employees kind of circled in and out of. Yeah. So I think we're going to see a continuous theme of the prosecution starting off with

creating the credibility or at least trying to from these for these witnesses then it went into describing actually one of the big differences i saw between matier and bangert was on this uh question especially of the legal opinion but on others as well bangert had well while matier was kind of the the leader of this group of employees that was trying to decide how to respond to what they saw as abuse of office, Bangert had more firsthand knowledge and more conversations with the Attorney General over these specific issues, such as the legal opinion. In fact, Bangert was the one whose name was on the legal opinion in question. And so currently, as we sit here, Ryan Vassar is on the stand. He was involved in writing that opinion along with nate paul uh at a mexican

restaurant downtown in downtown austin a lot of us know yes yes and um he described how that uh that lunch went with uh according to him a lot of demands or assertions from Paul about how he was, quote, getting railroaded by the FBI in this ancillary investigation. There was a lot of that. And then another thing that really struck home for me was the effort by the prosecution to counter something, to counter a point made by Busby the previous day that this informal opinion um busby contended through his line of questioning that uh this legal opinion that was issued was informal and therefore different from what is governed under this chapter of texas code now he hard and made a point to come back to that with Bangert, who then asserted there's really no difference between a formal and informal opinion.

Whether you take that as gospel, I don't know. specifically a clause the ending clause of the paragraph that concluded the letter that said well while this is not a formal opinion it is still meant as legal guidance that was something that when the assertion was made the previous day that final clause was left out so they circled back to that and uh really tried to underscore that encounter what seemed to be the points made the previous day. Yeah. And with having Banger be so intricately a part of drafting all of those very important parts of this argument, whereas Mateer previously, he was asked a lot of questions about these issues and he either was able to give answers that were unsatisfactory or just didn't give as much detail. At this point, we were talking to, by and large, the author of this opinion that we were talking about so frequently.

One of the two authors. Yes, one of the two authors. The other is currently on the stand. Adam, what were your perspective and opinions on how today went from the prosecution's perspective with Banger? I think that it went well. I think there's a broader issue that I think that the defense is probably going to try to hammer home, and that is this. When we first started hearing about this in the House, there had been a storyline that Nate Paul bribed Ken Paxton. And thus far, it seems like that the House managers and the lawyers are kind of getting away from that, that there's not really evidence that there were actual bribes. Maybe this stuff with the house and the countertops was a bribe.

Maybe the stuff with hiring Ken Paxton's mistress could be conceived as something on a quid pro quo, but it doesn't really seem like there's that there. So what they're trying to do now is say, Ken Paxton was hanging out with this Nate Paul guy who is a nefarious character, who's currently under federal indictment for issues not related to this, but that might happen at some point. And that he was getting or asking Ken Paxson to do all these favors for him. And these individuals, these gentlemen we're hearing from today, were very concerned about that. And they were concerned about writing opinions for Nate Paul, doing an investigation for Nate Paul. And they were saying today, one of the witnesses said

they were using the office of the attorney general as basically a lawyer for Nate Paul himself, which of course is not what the attorney general office needs to do. So the question that I have is going to be this, are they going to try to make an argument that, look, whatever happened between Paxton and Nate Paul was really just politics. It was a donor that was close to the attorney general. Nothing was illegal about it. Nothing was nefarious. But how does this rise to an impeachable offense? And I think we heard this argument with Trump. We heard this argument with Bill Clinton. And it's a very abstract argument. What is an impeachable offense? And I think we're going to start hearing that more from the defense.

I'm curious, Adam, as somebody in the profession, again, that might be able to provide a lot more insight than we would on this issue. We're seeing so many objections being raised throughout this trial already. Hearsay, the admittance of evidence, leading questions. For us newbies, is this normal? Is the frequency normal? What should we expect going forward? So I don't think it is a good strategy to make this many objections because when you have a regular jury, a regular jury gets annoyed at the level of objections. Lawyers will still do objections because they are preserving error for what's going to be an appeal. But here, I don't think there's going to be an appeal. In fact, I don't think you can appeal this to the Texas Supreme Court. I could be wrong about that. But I don't

think that there's actually going to be an appeal. So I'm not quite sure why they keep objecting other than they want to disrupt the flow of the questions. So to directly answer your question, I think that it is a strategy to throw the prosecution off, but I don't think it is working. I think it looks bad. And I think there's an issue here that people need to pay attention to. And that is these Texas senators are some of the, shall we say, most confident individuals in the Texas government. I use that politely. They don't want to sit here for the next four to six weeks. Okay?

You know, if this case was in federal court, we'd be done within two weeks, maybe a week and a half. So the more this keeps getting pushed out, the more these senators are going to get annoyed, and the more the lieutenant governor eventually is going to get annoyed. And so I think at some point, we're going to have less objections, because I think it's going to be relayed to the defense that we need a lot of those objections, at least in the last several days here or today, particularly. Okay. Let's move on a little bit to the defense itself and how the entire tone changed once a certain lawyer we've not seen at the front mic yet up until this point, Matt did mention him earlier. Anthony also impressions, gentlemen, Brad, why don't we start with you impressions of his uh start there um it was it was very busby like at least compared to how busby's cross-examination was of matier the previous day um also a lot of combative discussion with with the witness over whether he's answering questions correctly also was asking a lot of, especially, I would say slanted

questions, which he has a right to do. He's a defense. Yeah. Expecting just one word, yes or no answers. And of course the witness did not want to provide that. It was pretty brash, but in a courtroom that kind of works for you sometimes. Absolutely. Matt, how did Bangert seem to respond to that line of questioning? Well, I mean, Bangert has been absolutely cool and composed during pretty much all of that. There might have been a moment or two where it seemed like he was getting under Banger's skin a little bit, but he's a very pro-witness. I thought that the first part of Oso's cross-examination was probably the most productive for the defense trying to undermine some of the narrative of Paul just having his way with the attorney general's office.

Then after that, it just kind of became a lot of nuanced questioning and submitting of evidence and not really seeing the point of where it was going after that. So that was kind of my impression of it. Yeah, certainly. Adam, what about you? I tend to agree. I think that like a lot of the defense, I think they make some good points initially, and then it just kind of keeps going and going and going, and you begin to wonder, like, what's the point of all this?

So that's part of lawyering. When the case isn't that great, you try to just poke a lot of holes and keep poking. But I think that he could have shortened it up a lot more than he did. Well, and to your point, Adam, this is not an audience that I think these lawyers are typically used to being in front of either. This is a very specific kind of audience. You'd also argue that there are two audiences. There are the senators and there's the public. And we're seeing different approaches, I think, from both sides. And they're both approaching, I think, both audiences in their own way. But what will be communicated to the public at large and to voters, because this is at the end of the day, a political trial, does matter. And I think both sides know that to be very true and very clear but the senators will be the ones making the decision at the end of the day and they're a very different uh you know jury than just some randomly selected jury that might typically be in a courtroom so i'm just very curious one to see if

how long this goes if those time constraints are at uh at held to because there are um there's some wiggle room there if the lieutenant governor decides there should be more testimony heard to your point adam i can't see that really being the case but um we have a very interesting team of lawyers here with two very different audiences we're not even three witnesses in and the first week is almost like a witness a day at this point and you know we have to kind of cook it a lot faster here to get through our list of witnesses that are potentially going to be called to the stand um so i know we're uh recording prior to the end of the proceedings today and we've certainly not heard everything that the second witness has to say

um but after bangert the prosecution called Ryan Vassar, another former employee of the Attorney General's office, to the stand. And unlike the first two witnesses, he was fired and then joined the lawsuit under the Texas Whistleblowers Act. Do you all have any immediate impressions of how he's approached his testimony so far. Brad, we'll start with you. You know, like Bangert, he has the firsthand knowledge, more of the firsthand knowledge that, let's say, Mateer didn't have, at least in its entirety.

He's also younger. And I think the first question or one of the first couple questions that was asked of him was, how many kids do you have and what ages are they? And he listed, I think, three or four kids and they're all below the ages of five. That's a full house right there. Yeah. And which led to him saying that when he got fired, he was living on savings for six months and again, trying to build the credibility of the witness. He is different because, like you said, he's not a longtime pro. And he's not as, I would say, as calm, cool, and collected as Ryan Bangert was. But that also may be something that the prosecution is trying to assert,

that this was a kid, basically. Maybe not exactly a kid, but a young guy that was trying to rise through the ranks and in fact bangert during his testimony said the reason he signed the legal opinion was that he did not want vassar's career who was which was just starting to be affected so that's the kind of attack i see just barely into his testimony so far. Matt, what about you? I agree. I think they're potentially showing a human impact aspect of how much weight the decision was for some of them to do this, that this wasn't a light decision. He had a young family at home and he was risking jeopardizing that job and all that

sort of stuff. So it wasn't a light decision to do that. And so you got that communicated to the jury by putting him on the stand. Certainly. Adam, your impressions of Vassar? I thought he was credible. I think that these guys are putting a lot on the line to do this. I think it was very brave of them to go to the FBI. Clearly, it wasn't just one person. It was several of them. We've already acknowledged that these very accomplished guys in this position with good resumes. And so I thought he was credible. I don't think any of these people want to go through this. I don't think this has been fun. I think this has damaged careers. I think this is going to have long-term consequences. So from my perspective, I think he was very believable. And like you said, Brad, he certainly was not as cool, calm, or collected as maybe other witnesses

in that he very visibly showed emotion when he was asked how he regarded being called a rogue employee by the attorney general. And he visibly teared up, which was something we had not seen on the witness stand so far. And to your point, I think that just shows that there's a lot at stake for these individuals. And it is in many ways tearing apart a lot of these conservative legal communities and how they will come down on this impeachment, how careers will be affected. I mean, these are a lot of people who've been politically aligned for a very long time now having to choose sides between credible legal staffers and employees and an attorney general that they had often agreed politically with. So very complicated. And revered. And

revered. Absolutely. For a very long time. So fascinating to watch the breakdown. Adam, we're so appreciative of you coming in and making time for us on this very busy Thursday afternoon. Any final thoughts for our listeners about the trial or where they can follow you on Twitter, whatever you have, whatever your heart is set on. When you're running for mayor. Brad said when you're running for mayor. I'll announce it to y'all first when that happens. But no, I think the people should keep watching the trial. I think there's going to be some twists and turns. And look, we're all living through history and it's kind of fun.

Yeah, absolutely. Well, Adam, we so appreciate your time. Folks, thank you so much through history and it's kind of fun. Yeah, absolutely. Well, Adam, we so appreciate your time. Folks, thank you so much for listening and we will catch you tomorrow. Thank you so much for tuning in to Inside the Impeachment, Paxton on Trial. For access to all of our team's coverage on this historic proceeding, visit thetexan.news and subscribe today.