Paxton Walks Constitutional Tightrope In Impeachment Case

Law360 (August 31, 2023, 4:48 PM EDT) -- Suspended Texas Attorney General Ken Paxton must weigh whether to testify or take the Fifth ahead of his upcoming impeachment trial, which white collar experts say is often a tough call defendants facing civil actions with criminal implications have to make.

Paxton took to social media over the weekend to swat back rumors that he was considering resigning to avoid the witness stand in a political trial that may expose him to criminal liability. Members of his legal team told Law360 Pulse this week that he has no plan to step down while declining to comment further, citing a gag order in the impeachment case.

Experts told Law360 Pulse that clients in situations similar to Paxton's, where they are facing dual civil and criminal actions, have a tightrope to walk as they defend themselves, especially if the civil case is proceeding before a criminal action has been adjudicated.

Nina Marino, a partner and white collar criminal defense attorney at Kaplan Marino PC, said that lawyers "have to make a decision about what's paramount, and in my opinion, freedom and liberty are always paramount."

"It's a very case-specific decision, but there are only two options: Either you testify or you invoke," Marino said. "We want the criminal case ahead of the civil one, because for my client to participate fully [in the civil case] while there is a criminal investigation pending could jeopardize their Fifth Amendment right not to incriminate themselves."

If a defendant being deposed or subpoenaed to testify in a civil case invokes their Fifth Amendment right to stay silent in response to any question, the plaintiff is entitled to an adverse inference instruction to the fact finder that truthful responses would hurt the defendant's case, Marino said, noting that judges routinely will put a typical civil case on hold if there is a parallel criminal matter.

Paxton has filed a motion in his impeachment case seeking to be treated like a criminal defendant with an absolute right not to testify and an instruction that his silence cannot be used against him. House managers have argued that impeachment is meant to protect the public, not to punish Paxton, and that the process is a civil one. A ruling on the issue has yet to be made.

Jennifer Beidel, a former federal prosecutor and a member at Dykema Gossett PLLC, said that when a client is a politician facing impeachment and a criminal investigation simultaneously, they're in a "rock and a hard place situation," as refusing to testify may not look good to the voting public while telling their side could cause problems for them later in the criminal matter.

Paxton's impeachment trial is scheduled to begin Tuesday, and his lawyers have good reason to keep him off the witness stand.

First, he is scheduled for trial in Harris County later this year on state-level allegations of securities fraud for which he was indicted in 2015. In February, the U.S. Department of Justicealso confirmed that its Public Integrity Section had taken over a corruption investigation related to allegations made by former Paxton aides who reported concerns in 2020 of bribery, abuse of office and improper influence inside the Texas Attorney General's Office.

In addition to those criminal actions, Paxton, a Republican, also faces an ethics lawsuit from the Commission for Lawyer Discipline of the State Bar of Texas over his unsuccessful challenge on behalf of the Lone Star State to the 2020 presidential election results in Pennsylvania, Georgia, Michigan and Wisconsin, states won by then-candidate President Biden.

Members of the Texas House of Representatives, which is controlled by a Republican supermajority, voted 121-23 in favor of impeachment in late May, triggering his automatic suspension in advance of a trial in the state Senate.

Fry Wernick, a Vinson & Elkins LLP partner who spent 11 years at the DOJ, said Paxton's is a "tricky situation."

"There's a political dynamic here that isn't present in an average civil case," Wernick said. "It's a predicament for his lawyers. He wants to tell his side, and a big question from the public is 'What does he say about it?' But if he testifies he's subject to cross-examination, and what he says can be used against him."

Wernick added that "ultimately it's the client's decision" and that if a client is determined to take the stand, "it's all about prep, ensuring you've gone over the documents and other witness statements, rounds and rounds of mock direct and cross-examinations."

"But you don't want them to do anything that could adversely affect the criminal case," Wernick said. "The most important thing is to keep your client out of jail."

--Additional reporting by Lauren Castle and Catherine Marfin. Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.