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How time constraints are affecting the Paxton impeachment trial


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The clock is quite literally running down on the impeachment trial of suspended Attorney General Ken Paxton.

Lt. Gov. Dan Patrick on Monday morning told the Texas Senate — which is serving as the jury — that the historic trial could wrap up by the end of this week.

The prosecution and the defense were each given 24 hours to present their case and cross examine witnesses.

By the close of Monday — the fifth day of the trial — attorneys for the House impeachment managers who are prosecuting the case against Paxton had around 9.5 hours left, while Paxton’s defense lawyers had a little more than 12 hours.

Ken Paxton’s impeachment trial: What to know

  • Paxton faces several allegations


    Suspended Attorney General Ken Paxton is accused of bribery, disregarding his official duty, making false statements and abusing the public trust. Paxton allegedly misused the powers of the attorney general’s office to help his friend and donor Nate Paul, an Austin real estate investor. Impeachment managers submitted nearly 4,000 pages of evidence ahead of Paxton’s trial in the Senate. Paxton pleaded not guilty.

  • Defense calls accusations political


    Paxton’s lawyers vow to disprove the accusations and say they will present evidence showing they are based on assumptions, not facts. They and several other Paxton supporters portray the proceedings as a political witch hunt carried out by “Republicans in name only.”

  • Texas Senate acting as impeachment jury


    Texas senators are considering 16 of 20 impeachment articles. Lt. Gov. Dan Patrick is acting as judge. Witnesses are testifying under oath, senator-jurors will deliberate privately and votes will be conducted without public debate. The attorney general’s wife, Sen. Angela Paxton, will sit as part of the court, but will not vote or deliberate.

  • The political donor at the center of the case


    Impeachment prosecutors allege that Paxton directed his office to conduct sham investigations into the rivals of Nate Paul, a real estate investor and political donor who was under federal investigation. Paxton is accused of improperly providing his friend with sensitive information about the FBI investigation into his businesses and improperly involving the attorney general’s office in a lawsuit between Paul and an Austin nonprofit.

  • Affair could play key role in impeachment


    Impeachment prosecutors argue that Ken Paxton went to great lengths to conceal an alleged extramarital affair from his wife and deeply religious voters who have supported him. Nate Paul allegedly hired Paxton’s girlfriend in exchange for the attorney general using his public office to help the real estate investor’s faltering businesses.

  • The trial features several high-profile Texans


    Ken Paxton’s impeachment trial involves a massive cast of elected officials, high-profile lawyers, whistleblowers from within his office, an indicted real estate investor and the attorney general’s former personal assistant.

The prosecution used more than 40% of its time on just four witnesses called in the first week: Jeff Mateer, Ryan Bangert, Ryan Vassar and David Maxwell, who were among the top deputies in the attorney general’s office who reported their boss to the FBI.

In total, eight witnesses have been called by the prosecution. Paxton’s lawyers have yet to call their own witness, and have used their time on cross examination. But it’s appearing unlikely either side will make a significant dent in the list of nearly 150 witnesses subpoenaed, according to a report published by the Dallas Morning News.

Yet while the impeachment trial has been unprecedented in many ways, the use of time limits is not unique, particularly in civil trials. Often, judges do not want to waste jurors’ time and time limits can reduce court costs.

Sam Sparks, a federal judge based in Austin, often sets time limits for civil trials in his courtroom, using a chess clock to keep track of each side.

Nonetheless, the time limits are weighing heavily on the minds of the attorneys involved in the case and are driving strategies on both sides.

On Monday, House prosecutor Rusty Hardin grew exasperated with defense attorney Tony Buzbee for peppering them with objections, drawn out with additional commentary.

Timekeepers watch as Mark Penley testifies on Monday Sept. 11, 2023. Sept. 11 marked the fifth day of Ken Paxton's impeachment trial in the Texas Senate.


Timekeepers watch as Mark Penley testifies on Monday. Sept. 11 marked the fifth day of Ken Paxton’s impeachment trial in the Texas Senate.


Credit:
Julius Shieh/The Texas Tibune

“He’s using up our time,” Hardin complained to Lt. Gov. Dan Patrick, serving as judge of the trial. “He’s been speaking through objections all day.”

Earlier, House prosecutor Terese Buess questioned Katherine “Missy” Cary, ex-chief of staff in Paxton’s office, about the perception of the attorney general’s office at that time and the deputies who were working under Paxton. Buzbee again interrupted the witness with objections, arguing the prosecution’s questions were vague or speculative.

Buess, growing frustrated by the interruptions, said she was willing to ask the question about each of the deputies individually if necessary.

“You’re on the clock,” Buzbee reminded her.

Mike Golden, a former trial lawyer and director of advocacy at the University of Texas Law School, said the defense attorneys know what they’re doing.

“There’s certainly a side benefit,” he said. “Which is as a result taking the House Managers team longer to present their evidence. And I think there’s no doubt that that is working.”

Legal experts said the political stakes of this trial means that both sides are approaching time constraints in different ways than they might in a traditional trial as they court multiple audiences in and out of the Senate chamber.

“Both sides are undoubtedly trying to not just speak to the senators, but they’re also trying to make political points with the people outside the impeachment [proceedings] in the hopes that they will put pressure on the senators one way or another,” said Shannon Ratliff, a trial lawyer in Austin with more than five decades of experience. “It seems to me that the audience might be a little bit broader than you would have in a trial.”

On the House side, lawyers have used a sizable amount of their allotted time to lay out the conservative bonafides of the first four witnesses, an apparent attempt to convince senators that the whistleblowers who reported Paxton to the FBI for alleged bribery and misuse of office are not working with liberal forces to remove Paxton from office.

“It’s not permissible in court to try to court the jury’s favor by suggesting that a witness shares religious beliefs with the jury,” said Golden. “The battle that the House managers are fighting is they need to make sure that the senators believe these witnesses and understand that these witnesses are credible.”

Meanwhile, experts say Paxton’s team is making “emotional pleas” to the public.”

“Paxton’s team is trying this case to the media and not to the senators,” Golden said. “So they need to decide, ‘hey, four more hours of media coverage is four more hours of media coverage. That’s great. We’ll use every single last minute, even if there’s no realistic chance that at this point you’re swaying the opinion of the people who are making the decision.”

Traditionally, experts said, time constraints benefit the defense because the prosecution has more evidence to present and has the burden of proof to convince a jury of their allegations.

“It’s a hard thing to balance, being efficient and being thorough,” Golden said, adding that it can force the prosecution to prioritize efficiency.

Still, Ratiff said a good prosecutor won’t let any time limits rush them through important testimony.

“You don’t want to get up there and rush through a direct [questioning] when you’re trying to make a lot of your most significant points,” Ratliff said. “That’s the meat of the coconut right there. You really want the witness going at a pace that will allow the people to absorb it.”

Once the two sides rest, they each have an hour to present rebuttal arguments before they each have one hour to make closing arguments. Golden and Ratliff said it is unusual for both sides to get time for rebuttal arguments, and each side will have limited time to make their rebuttal case.

“An hour is going to be very hard to get one or two folks up even to attack just one or two points, which is the purpose of a rebuttal,” said Golden. “It will require a lot of efficiency by the House manager’s side to make that happen.”

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