This decision comes despite earlier statements from the attorney general’s legal team that Paxton should have had an opportunity to present his side of the story throughout impeachment proceedings. Now that he does have the chance, he is choosing not to take it, said Charles W. “Rocky” Rhodes, professor of law at South Texas College of Law Houston.
“We’ve not had an opportunity to hear any testimony from him about the events that have been detailed and the charges that have been brought against him,” he said.
Rhodes said the only commentary heard from Paxton concerning the trial is his denial of the accusations of illicit behavior and abuses of office outlined in the 20 articles of impeachment, which are in the written statements he released to the public.
It is difficult to determine whether the attorney general testifying could help or hurt the possibility of his removal from office. However, Paxton’s testimony before the Senate could cause issues for him in the ongoing securities fraud case, which will see its trial in Houston, Rhodes said.
Sandra Guerra Thompson, professor of law at the University of Houston Law Center, said it is important for the public to remember that the impeachment trial is not a criminal matter. This is why Paxton’s words would only affect whether he was removed from office in the Senate, not if he was “guilty” of the claims against him from the investigation.
“I think the hardest part about this is the connection between the civil impeachment matter, which is a civil law court, and then the criminal matter, and how lawyers have to be attuned to the fact that one case can affect another,” she said.
Thompson said these decisions are generally made based on whether the attorney thinks there is ultimately more to gain or more to lose, and presumably, Buzbee does not want him to be in front of the Senate, answering questions.
Lieutenant Governor Dan Patrick, who presides over the trial, cannot force Paxton to testify. The lieutenant governor can, however, issue a subpoena for him to appear as a witness. Which would force Paxton to be at the trial, and he could be asked questions then. But, under the Fifth Amendment, the attorney general has a right to refuse to answer questions that could incriminate himself.
What Paxton cannot do is not show up after that subpoena is issued. If he did not appear, the Senate can have him arrested and he could be held in contempt of court. He could face a fine of up to $500 and up to six months in jail.
Thompson said although this is a possibility, she said not showing up would not be a good look for Paxton, and his lawyers would likely not let it get to this point.
According to Rhodes, if he was the attorney general’s defense lawyer, he would have advised Paxton not to testify because, Rhodes said, this trial is largely political. Senators may think Paxton is guilty of what the articles accuse him of doing but may decide not to remove him from office.
“The reality is a senator can make up their mind on whether the argument made by Paxton’s team applies in this context. There is no court that is going to oversee the senators,” Rhodes said. “There is a lot of wiggle room for senators to say, even if he committed these acts, this is why I didn’t vote against him.”