The Texan Podcast - Interview: Lt. Gov. Dan Patrick on Paxton Impeachment Trial

Episode Date: September 22, 2023

Read more about the impeachment: https://thetexan.news/paxton_impeachment/Lt. Gov. Dan Patrick joined The Texan’s senior reporter Hayden Sparks to discuss the recent acquittal of Attorney General Ken Paxton.“There is some truth in this, that it was orchestrated from the beginning and that members were coerced to vote. That’s true — in the House,” said Patrick. “Not in the Senate. It was the House.”Discussing his remarks at the end of the trial when he sharply criticized the way the House acted during the impeachment process, Patrick explained, “The reason I made my remarks on the dais before I adjourned was this: it needed to be in the historic record because 50 or 100 or 150 years from now, no legislator is going to come back and look at this interview or any other interview I’ve done or any TV interview that anyone’s done.”“We weren’t perfect, but I wanted history to reflect that this House under this speaker, under that investigative committee, they totally ignored past precedent, totally ignored due process, totally ignored fairness,” said Patrick.In addition to discussing the process of the impeachment trial, Patrick also weighed in on the political ramifications and how the trial might affect elections next year.

We are here with Lieutenant Governor Dan Patrick, who recently presided over the historic impeachment trial of Attorney General Ken Paxton, which resulted in his full acquittal in the Texas Senate. Governor Patrick, thank you so much for joining us for this interview. My pleasure. Thank you. And good to be with you, Hayden. I'd like to begin by what spurred all of this. Representative Andrew Murr said Paxton's impeachment was precipitated by his request that the legislature fund the $3.3 million proposed settlement in the whistleblower lawsuit against the Office of the Attorney General. My question to you is, if the House had sent you an appropriations bill with the $3.3 million to settle the whistleblower lawsuit against the OAG, would you have fought it? No, we wouldn't have fought it.

You know, they came to both the House and Senate. The House was pretty strong against it. Our members were not in favor of it because they didn't quite understand it totally at the beginning. But I think what was interesting, Hayden, is that it's the only way it could be settled. And the evidence, and you were there every minute of the day during testimony, the evidence was the following. Ken Paxton didn't come up with the idea of the settlement. The whistleblowers did. You remember that? When there was testimony that they approached the attorney general's office because the whistleblowers were afraid of a Supreme Court decision that if it came down, they wouldn't be entitled to any money. So they reached out, I believe it was February, if I remember the

testimony, in February and reached out and said, we want to settle this. Paxton said, okay, we'll get a mediator together. And the mediator met with both sides and they came up with the 3.3 million. And I can remember at the time that I heard Paxton say, look, if this isn't settled, this could cost the state 15 or $20 million, which you also heard testimony on if you recall i think that was from a judge grant dorfman who said that i think that's correct on the witness stand and so this idea that paxton asked for the money um wasn't correct and the idea of who pays so if someone sues me in the lieutenant governor's office or Sid Miller in the ag office or you name it. They don't sue us individually.

They're suing our office. And we have in the law now or in the rules anyway, it's kind of understood that any agency, because we get sued, you know, we have big agencies in the state. They can settle any claim up to $250,000, you know, if they decide it's worthwhile without permission of the legislature. But when you get to a bigger amount, the legislature has to approve it. And so I don't think that was, in fact, I know it wasn't clear in the beginning and maybe it wasn't laid out right. The whistleblowers came over. You know, it's interesting. The whistleblowers came and lobbied to get it paid because they want to get paid before the Supreme Court ruled possibly against a case that would impact them. The attorney general said it's going to cost us a lot of money if we don't settle on and be a long trial.

So, you know, the House was pretty hard against it. The Senate, I think, had the House done it, the Senate would not have fought it at all. This wasn't a multiple choice SAT question for the House where they only had the option of paying the settlement or impeaching Paxton. This is a little bit of a tangential issue, but what do you think might have happened if the House had simply said, we're not going to pay the settlement and left it at that instead of pursuing this impeachment? That would have been smarter on their behalf, because they look pretty foolish now, quite frankly. And I know I've gotten some criticism, and we'll talk about that a little bit later in my closing remarks, but this is not

a criticized criticism of individual members, although individual members, including the speaker, were a part of it. This is a criticized criticism, rather, of the process. And they just broke precedent. If you go back, Hayden, and look at the House, how they handled the 1917 case, and I think it was the 1890s case on impeachment of statewides, they had basically a full trial. They had testimony under oath. They had the witnesses cross-examine. The defendant had a chance to bring their lawyers in and answer questions. And then they proceeded to the House where I think they had, if my memory is correct from history, about 20 hearings or so. This time, they did none of that. The Speaker and Andy Murr just turned their back on what the House

had done. And so what happened was they sent us a case that had no evidence. I think they gave the members in the House two days to think about it and four pages to read. And so this whole process from the beginning was flawed. It was based on hearsay. You know, I encourage everyone who has not watched, go to YouTube and look at the John Smithy, a trial lawyer in the House. It was a courageous speech. Look at John Smithy, Paxton Floor speech, impeachment, and watch it. He says what the House did was indefensible. He repeated everything I said, or I repeated everything he said. Travis Clardy, a trial lawyer in the House, said the same thing in essence. And even a Democrat, Harold Dutton, said the same thing.

So the House was warned, but the Speaker and the investigative committee didn't listen. So going back to your question about the $3.3 million, had they paid it and just called it a day, that would have been the best thing they could have done. Many of the frustrations you expressed just now, you said at the dais, as soon as Paxton was acquitted, Speaker Phelan came out almost immediately. The word he used was orchestrated. He said that your comments made it seem that the outcome of the trial had been orchestrated. Is it possible that saying that from the dais might have clouded the view of the proceeding as fair and impartial? Absolutely not. I proceeded over a fair trial.

And everybody who watched, I think, graded my paper pretty well every day that it was a fair trial. Both parties would tell you, the lawyers would tell you I was fair. And sometimes one side or the other didn't like my rulings, which I think indicates it was fair. Secondly, there is some truth in this that it was orchestrated from the beginning and that members were coerced to vote. That's true in the House, not in the Senate. It was the House. You know, I love it when the speaker comes out and throws a hand grenade of which he actually or a plan that he employed over in the House. It was clearly orchestrated by the investigative House. It was clearly orchestrated by the

investigative committee. It was clearly orchestrated that they took no testimony under oath. It was clearly orchestrated that Paxton never could speak for himself. It was clearly orchestrated. The House had two days notice and four or five pages to read before they voted. That was clearly orchestrated. And when you talk to many House members, they will tell you that leadership was working hard for their votes. None of that happened in the Senate. Think about this, Hayden. They spent four hours, I think, in testimony in the investigation committee, you know, where the investigators came in and said hearsay and double hearsay. And then they spent four hours in Florida Bay. That's all they did over a week, the last week of session when

we're really busy, over Memorial Day weekend when people aren't paying attention. That's all they did over a week. The last week of session, we were really busy. Over Memorial Day weekend, when people aren't paying attention. That's what the House did. Four hours, four hours, and no evidence. No case, as John Smithy said. What did the Senate do? We spent 90 days during the summer preparing. We spent nine days in trial, about 60 hours of testimony. And on the liberation night, the members were in there from five, seven, eight, nine hours looking at the evidence. Our senators took copious notes. One senator took 170 pages of notes. Another took 150 pages of notes. So I don't want to hear this nonsense from the speaker that it was orchestrated or that I contacted any member about their votes. That's just nonsense. The reason he thinks like that is because that's what he did. The House certainly took a huge risk inserting themselves into Paxton's legal troubles,

and they lost in the Senate. Governor Patrick, while it may be safe to say the House probably won't be impeaching someone for a while, you proposed some possible policy changes that the people of Texas could weigh in on in 2025 or perhaps earlier. Do you hope to craft a package of proposed constitutional amendments for the next regular legislative session, or do you hope to do that sooner? I do. Look, we need to have an interim hearing on this and really have good testimony on it. We're not going to have time during the special session to really look at it thoroughly. And by the way, Hayden, when I made my remarks after the decision had been made and he had been acquitted, the reason I made my remarks on the dais before I adjourned was this. It needed to be in the historic record because 50 or 100 or 150 years from now, no legislator is going to come back and look at this interview or any other interview I've done or any TV interview that anyone's done.

They're going to look at the court record just like the Senate did, but the House didn't do. Or if they did look at it, they ignored it totally. They're going to look at the court record. And I wanted it on the record of what the Senate did that I thought was good. Things could be improved upon. We weren't perfect. But I wanted history to reflect that this House, under this speaker, under that investigative committee, they totally ignored past precedent, totally ignored due process, totally ignored fairness. And these are all the words that John Smithy said, a House member, that Travis Clardy, in essence, said, that Harold Dutton, in essence, said. What did John Smithy

say? A longtime trial lawyer who's been in the House a long time and practiced before the Texas Supreme Court. He said, what we're doing here is hang him and judge him later. And that's why I wanted it on the record, so that in the future, legislators would know what really happened. There are some who say the evidence against Paxton at least warranted impeachment or at least warranted a trial. In your view, are there cases, or if this case did not warrant impeachment in the House, even given the compressed time frame, then what type of case would warrant impeachment? Is this a process that should be preserved in the Texas Constitution? So, yes, it should be preserved. You know, in the federal Constitution, it's high crimes and misdemeanors, but our constitution is different.

And these are the changes I want to make that you referred to in your last question. We should make it mandatory if any house is going to take up impeachment, they must have testimony under oath, cross-examination, due process. And they must give the members, the 150 members, time to study all of that before they make a decision. Had they done that, I don't think they would have even sent it to us. Had they done what we did by putting every witness under oath, transparency for everyone to see, if they had done that, they would have discovered that, okay, if some people say there was smoke, if people say, well, he shouldn't have done this or he shouldn't have done that, that's not what the senators were voting on. That's not what impeachment is about. Not

impeachment. Overturning an election is what impeachment is. I mean, it's a very serious issue when you overturn an election. And the House sent us the impeachment. Remember, no record, no evidence. They sent an impeachment on could be, maybe, might have happened. You know, we're concerned. Remember what one of the whistleblowers said on the witness stand? We went to the FBI, all eight of us, with no evidence, except we went there in good faith. And that's okay. Someone can report something in good faith if they think a crime is being committed or something is wrong or foul, but they had no evidence. It was just, we think this could be happening. And again, our members, their duty, they put their hand on the Sam Houston Bible and said, I take an oath to follow the law and the evidence and to acquit or convict.

And the conviction would take beyond a reasonable doubt, very high bar. And at the end of the day, they didn't prove it. As John Smithy said, again, I quote him a lot in his speech, go YouTube and watch the speech if you haven't seen it, folks. John Smithy, Paxton Floor speech, impeachment. He says he's not up there talking about guilt or innocence. He's talking about the process. So in the Senate, if you were a Senator Hayden, your job was clear. Not anything the grassroots said, not anything those who want to impeach Pacton said, not anything that was in the media, not anything your friends and family told you. You are only to judge him based on the evidence presented in this trial under oath and under cross-examination. And that's what our senators did, and 16 out of 18 Republicans acquitted him. One of the comments you made from the dais that stood out to me was when you drew the analogy between the state and the federal system, imagine if the U.S. House could take a majority vote to suspend Attorney General Merrick Garland or President Biden or President Trump. That's virtually the system we have here in Texas.

And imagine if when they did that, they had to step down from office. When Bill Clinton and Donald Trump were president and impeached, they didn't have to step down from office. And some people, and I may have said this, forgive me if I'm repeating myself, I've done about six interviews today, but the idea that we could have just kicked it back, well, you should have sent it back. Well, and the forgiveness doctrine. And look, the members voted on that, and they decided that they didn't apply the forgiveness doctrine. And that needs to be cleared up in the Constitution. What does crimes committed before being elected mean? Does that mean before ever being elected

or your last election? So that needs to be cleared up in the Constitution as well. But if we had sent it back, and when I tell people this, they say, oh, I hadn't thought of that. Had we sent it back, if we could have sent it back, they would have just sat on it for another year and a half or two years and said, hey, we're going to keep investigating. And Paxton would have been out of work and not being paid. And that whole office would have fallen apart. You highlighted the role of each senator as the ultimate evaluator of the evidence. And despite all the speculation in the press about what happened in deliberations, ultimately, it was always up to the Senate whether the charges against Paxton were valid, true, and impeachable. But what would be your message to the many witnesses, especially those

former employees who call themselves whistleblowers? What would be your message to them after they testified that they believed in good faith Paxton had committed crimes? Look, one or two of them I knew because they worked for Paxton. And, you know, since I've been lieutenant governor working with the attorney general's office, some of them attended meetings. I don't think they're bad people. I think that for whatever reason, they got spun up on some things that they believed and troubled them. But they went to the FBI when they should have said something to Ken Paxton to explain some issues. I would think that would be the first step. The second thing I would say is

when you're going to go to the FBI, you better know one day you're going to be on a witness stand and you're going to be held accountable for things you've said, things you've texted, things you've emailed. For example, we saw the text that said from one of the whistleblowers, we've got to cook something up on Kamek, on Paxton, and win. Imagine that. There was another text that said, we've got to get him indicted by the spring. And plus, all the texts are the ridicule of the new people that were hired in their place. So when you're going to go to that level, then you've got to be prepared that They can always come back. So what I would say to them is they were not careful. I'll give you one piece of evidence that I think really rocked the jurors. When the whistleblower said, and the first time I think it was a shock to the lawyer, whoever was cross examining. And they said, so how much money are you paying Johnny Sutton? Johnny Sutton was the

lawyer for, I believe, four of them, three for sure, maybe four of them. And they said, I don't know. I've never paid him. What do you mean you've never paid him? Well, how much do you owe him? I don't know. I don't know. Anybody hires an attorney and doesn't ask what the hourly rate is, doesn't ask anything about that. And this is three years. He's been representing three or four people, all those hours. And they didn't say that he did a pro bono, which would mean he did it for free. They didn't say that. They just said, I don't know. We've never discussed it. I think a lot of jurors said, wait a minute, something here that doesn't sound right. Just like the jurors when they heard the witness that said, oh, Ken Paxton gave his aide an envelope and delivered it to Nate Paul in the middle of the night in the back of an alley. And when crossed,

and he was one of the whistleblowers, when in Cross examination, he said, well, I didn't have any direct evidence of that. Well, who told you? Well, four or five, six people told me. Well, who are they? Well, I can't remember. Those kind of statements by witnesses destroy a witness's credibility. But that's what the House built their case on, because they said, oh, that witness said he gave an envelope to someone in the middle of the night in the back alley. And of course, there was testimony that that never happened. But you can't impeach somebody on statements like that. You know, there were on and on in the trial that the witnesses. So my advice to anybody, you better be sure you can back up what you're saying. One of the aspects of this trial that really stood out to me was how much scripture was quoted and how much the witnesses and even Paxton's defense relied on faith. And of course, the natural next

question is the role of the alleged extramarital affair in this trial. Of course, the House didn't impeach Paxton on suspicion of having an affair, but many of their allegations centered on the alleged affair between Attorney General Paxton and Laura Olson. She was intended to be a witness in this trial, but ultimately the parties agreed to the language that she was deemed unavailable to testify. Can you expand on why that took place and why she didn't take the stand? Sure. By the way, she never planned to testify, as I found out. So here's the story. And people have, I thank you, Hayden, for getting the facts right. You listened. Even one senator, Senator Eckhart, didn't listen apparently or didn't read anything that we said in court concerning that because she accused me of stopping Olson from testifying.

Even one of the lawyers that disappointed me after said, well, Patrick handcuffed us. Look, here's the deal. Laura Olson's attorney filed a motion that I had to rule on to quash the subpoena. And they came up to the bench early that day and said, look, you know, the Paxton side said, look, she's going to take the fifth. Why are you going to bring up here? She's going to you're just trying to prejudice our client. And and on the other side, what we got to ask for these questions, we're going to ask you these questions. We know she's taking the fifth.

So I said, look, and all through the trial, hey, whenever there was a disagreement, I always said, you all find a solution to this. Whatever it was, over exhibits or one time, you know, you have to give 24 hours notice to the other side if you're going to call a witness. So I took him back to, I don't want to say my chambers, but to my office with a court reporter, by the way. So this will all be on the transcript when it's released. And I listened to the lawyer for Laura Olson. I listened to the House. And I listened to the Paxton team. What I thought was clearly neither the Paxton team didn't want her because they thought, you know, she just takes the fifth, maybe that looks bad for their client. The house, I don't think wanted her really because they

didn't know how the jurors would react to them having her up there when they knew she wasn't going to answer a question. So I didn't make a decision. And I said, look, I'm kind of leaning, you know, I'm listening here and I'm trying to see the point of this, but can you all figure it out? Can you all agree? Something to that effect. And immediately, Aaron Epley of the House lawyers, who I thought was one of their best lawyers and did a really fine job. Erin Epley said, how about if we say she's present, but not available? And I turned to my right and Tony Busby was sitting down and Edie Murr was behind him. And I said, well, what do you think? Both of them shook their heads. So that wasn't my language. That was the house manager's language. And I think it'll be on the transcript,

but I think she said it in the room, but not in the hall when we left. Erin Epley said, well, we need something because we don't want our side to think that we didn't call her. So they were both happy. It ended both sides and they were good to go. So that's why she didn't testify. I never ruled on the motion. Well, Governor Patrick, I could ask you about the evidence all day. There are so many questions that are in my mind about your thoughts on different aspects of the test. What was your biggest question? What was your aha moment? Well, I wonder what you believed the biggest moment for the defense was that you think might have won the victory of the acquittal in the end. I thought the defense was very sharp in being able to refute what looked at one point to be solid witnesses. I mean, the first time some of them testified, you say, wow, strong testimony. Then they were destroyed on cross-examination. So the defense

team did a really good job of that, I thought, and that made a difference. I will tell you what I've heard since then that may have made up the mind of some of the members. They all watched a two hour, two and a half hour tape of the interview between the ranger and Penley and Nate Paul and his attorney. You know, they did have an interview. And I think what I'm told is, and I've been told by some members that they viewed that and said they were not radical. They laid out their case clearly. It wasn't a baseless complaint. And they weren't as they were portrayed. Now, I can't speak to any of those other times. I'm just saying that the members really went back to their work. So they watched that tape. They looked at more evidence that was not presented in the trial, but was admitted to evidence. So I think I did an interview today with Pete Flores,

one of the senators, who's a law enforcement. He was a colonel of the game boards. He's a law enforcement veteran. And he said, I'm quoting him, paraphrasing, you know, people kept saying, is there a silver bullet? Waiting for a silver bullet to convict. Not that they were waiting to convict. Well, when is that moment coming? And then when the House rested, by mistake, but they had two hours left on the clock, when they rested, it was like the member said, okay, is that all there is? Where is the smoking gun? Where's the silver bullet? And I think our members, most of our, the majority of the members, they't get close to 21 decided after looking at all the witnesses and all the evidence that they didn't reach the standard of beyond a reasonable doubt. Simple as that. I've got to wrap up here in a minute, Hayden, but one more question if you need it.

Absolutely. Thank you for the extra time. But looking forward to 2024, do you think this issue of the impeachment or school choice will end up being a bigger issue in 2024 for Republican primary voters? That's a great question. I think both are very important. School choice impacts so many lives. We need it. We passed it three times out of the Senate. We've never been able to get it out of the House. So that's very big. You saw what Governor Abbott said this week. We can do it the easy way or the hard way. If the members don't pass it in the House, then the voters will decide, meaning in the primary next year, and then he's going to engage

in that. So it's very important. On the other hand, people were really riled up over this impeachment. A lot of primary voters were really riled up. And I honestly, in my heart of hearts, I don't think anything that any of the members heard incoming again, they were getting, by the way, the members were hearing from grassroots, you know, you must acquit and hearing from others, you must convict. I think they put that all aside. I think they made their decision based on their evidence and their study and their work. The people in the Senate are people of high integrity, and no one was going to tell them how to vote or even try, well, some people on the outside try to tell them how to vote, but they voted their convictions.

And look, some of them voted for conviction. A couple of Republicans voted for conviction, mostly the Democrats, but every Democrat but one voted for acquittal on one article or more. So I respect how they all voted and where they came to their decision. And I think they made the decision that they thought was not beyond a reasonable doubt for most of them. Governor Patrick, thank you so much for being with us today and for talking about this historic trial. We so appreciate your time and we hope you have an excellent evening. Well, thank you, Hayden. And my best to Connie Burton. I'm really proud of her, what she's, her success on this. You know, when she started this, it's pretty hard to start something from

scratch. And of course, I served with her in the Senate. I used to work with her in our grassroots caucus back when I was a senator. And so she's done a really fine job and has created a fine staff and you all do a great, great work. So thank you. Thank you, sir. We appreciate that. 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.