Preaching It Round And Square

 So Paxton escaped because:

“Simply put, the burden of proof — beyond a reasonable doubt — was not met,” state Sen. Charles Schwertner, a Georgetown Republican, said in a statement released after voting ended in the historic impeachment trial on Saturday.

That wasn’t the standard of proof, or at least it shouldn’t have been. This was not a criminal proceeding. It should have followed the standard of a civil trial: a preponderance of the evidence. Seeing as Paxton’s lawyers didn’t put in any evidence worth considering, that would have convicted Paxton. But then Patrick didn’t sit as a judge or try to establish a standard for the burden of proof for the trial, which allows the jurors to create excuses for their decisions. A feature, not a bug. And not a feature Patrick wants to change about the constitutional requirements of impeachment in Texas.

Or did Paxton escape because the House did conduct its investigation like it was a criminal investigation?

On the first day, six senators voted to dismiss all the impeachment articles altogether, including Paul Bettencourt of Houston, Donna Campbell of New Braunfels, Brandon Creighton of Conroe, Bob Hall of Edgewood, Tan Parker of Flower Mound and Kolkhorst. 

Half of those senators — Bettencourt, Campbell and Parker — are up for reelection next year. Nichols and Hancock, the Republicans who voted to convict, are among those up for reelection in 2026. 

In a statement, Bettencourt said the reason he voted on the first day to dismiss the impeachment articles was because the House did not take evidence from witnesses under oath or allow cross examination from Paxton’s attorneys, stating the House “avoided this key step.”

I’m not sure what the objection is here: witnesses testified under oath in the trial; and defense lawyers never get to cross-examine witnesses during a criminal investigation. Nor during civil discovery, for that matter (attorneys do depose witnesses from the opposition in civil cases, but it isn’t cross-examination. That’s conducted in trial, when evidence is being presented to a trier of fact.). So Bettencourt, unsurprisingly, is making excuses for allowing Paxton to continue to be as crooked as a dog’s hind leg in public office.*

Patrick wants to change the requirements for impeachment in the state constitution. One change I would support would be to put the Chief Justice of the Texas Supreme Court in charge. At least then we’d have a presiding officer who knew how to conduct a legal proceeding, rather than acting like some judge he remembers from a TeeVee show.

In the end, was there a jury charge? Was the jury instructed in the responsibilities of a jury? Instructed in what they needed to determine, to find, in the language of the court? No. They talked among themselves, and they put a finger in the wind, and they decided that the way the room was going was the way they were going to go.

Once it was real clear that we weren’t going to get 21 votes, I believe that some Republicans that wanted to support impeachment decided to vote against impeachment,” said state Sen. Royce West of Dallas, a Democrat who voted to impeach on most articles. 

Alvarado said she felt the trial started off as impartial, but the tide started to turn away from possible impeachment in the last 24 to 48 hours. 

“There were some sidebar conversations going on and I think at some point yesterday [I] started to realize that people were changing their mind,” she said.

Not unlike a jury, in the end. But nothing like a jury, either:

Sen. Carol Alvarado, D-Houston, rejected that argument from Republicans, instead blaming the failure to impeach on “outside influence placed on members.” 

“They caved to that pressure,” she said. “They were getting bombarded with text messages from outside groups. And you could just tell that they were being influenced by that, you know, except a few of them.”

No court would ever allow that interference with the jury. But this was no court. This was political.

In the end, Sen. Sarah Eckhardt, D-Austin, said “self interest won” with Saturday’s decision. 

“But this morning, the Texas Senate restored Ken Paxton to office, setting a new and lower standard for public service in Texas,” she said.

That was the political system’s chance. Is anyone really surprised the system wasn’t up to the challenge?

The impeachment by the House was so unexpected it led me to believe the Senate might actually oust one of the most corrupt public officials in Texas history (which, yes, is a high bar). But when it came time to stand up and be counted, they just shrugged and sat down. And unsurprisingly, they blame everyone else, for their failure.

*And yes, it sounds like I’m tilting the playing field back and forth. But cross-examination of witnesses in an impeachment investigation, or even following the rules of civil discovery, is simply not practical. And setting the burden of proof as high as possible (“beyond a reasonable doubt” is the highest standard in American law) is properly reserved for when the outcome can mean a loss of liberty.  For any lower outcome, the standard of proof should be commensurately eased. The civil standard is easy to apply and more reasonable under the circumstances.