To Ensure Paxton’s Impeachment Trial Is Fair, The Texas Senate Must Adopt Rules That Stop The Political Circus

In the coming weeks, Texas will witness the impeachment trial of Attorney General Ken Paxton — an event that has captured public attention and raised serious concerns about the integrity of the House proceedings, compared to something worse than a kangaroo court. As the trial rules develop with a June 20 deadline in the Senate, it is vital to prioritize fairness and due process. 

To achieve this, Lt. Gov. Dan Patrick and the Texas Senate must make it clear the state House acted lawlessly and the Senate will embrace transparency and comprehensive guidelines to ensure a trial that upholds constitutional rights and promotes public confidence in the process.

Every trial is characterized by the mutual molding of the rules of the proceedings, achieved through motions practice and pre-trial conferences. The upcoming impeachment trial should be no exception. The parties should be allowed to discuss the rules of the trial beforehand. This includes deliberations on jury instructions, the number of witnesses and a plan for their presentation, the admissibility of evidence, and the time allocated for each side. By granting this input, we ensure the fairness of our adversarial system of justice and adhere to established trial practices in every other court in Texas.

To preserve Senate decorum and minimize political polarization, all parties must refrain from live witness testimony. Recent federal impeachments have embraced this approach, favoring deposition testimony introduced at trial. This maintains order and decorum and minimizes political influence — keeping the courtroom a place to deliberate facts, not put on a show. By opting for deposition testimony, we strike a balance between maintaining the sanctity of the Senate chamber and ensuring fairness for all participants, presiders, and decision-makers.

While witness testimony plays a significant role in any trial, the Senate must address the concern regarding subpoena power upfront. Neither side should compel witness testimony or attendance. Moreover, the House should not be allowed to subpoena new witnesses that were not previously disclosed. In accordance with trial practice and constitutional law, if Paxton chooses not to testify, the rules must instruct the Senate not to draw negative inferences from that decision. This approach safeguards the defendant’s rights and ensures a fair process free from undue coercion.

To streamline the proceedings, depositions should be conducted and overseen by a judge or special master who is agreeable to both parties. This impartial authority will address objections raised during depositions, maintaining fairness and preserving the integrity of the proceedings. 

Given the gravity of removing a statewide elected official, the burden of proof in this case should be the same as it has been for other impeachments in Texas: beyond a reasonable doubt. This standard acknowledges the seriousness of the charges against Paxton, particularly those that accuse him of criminal conduct. By upholding this standard, we safeguard against any politically motivated decisions.

To maintain consistency with prior impeachments, the Senate should apply Texas evidence rules. This practice guarantees a level playing field, ensuring that the same evidentiary standards employed in previous proceedings are used in this one. By adhering to established precedents, we further foster confidence in the trial’s integrity and fairness.

Fundamental to due process is the timely disclosure of evidence. To guarantee a fair and adversarial proceeding, House managers must provide all evidence, notes, and other commonly required disclosures well in advance of the trial. This constitutional requirement affords Paxton the opportunity to review and understand the nature of the evidence and witnesses against him, ensuring a robust defense.

Lastly, it is crucial to treat impeachment as a quasi-criminal and quasi-civil legal process. By affording both sides the right to status conferences, motions to dismiss, motions in limine, motions to compel, and pre-trial conference processes, we establish an orderly administration of justice. This approach, observed in previous impeachments, guarantees a structured framework suitable for a case of this magnitude.

We must prioritize fairness and due process, especially in matters as significant as an impeachment trial. Granting the House and Paxton an opportunity to provide input on proposed rules is a crucial step to a fair and impartial trial. By embracing transparent and comprehensive guidelines, Texas can ensure constitutional rights are upheld and unnecessary political acrimony is avoided. Let us stand united in our commitment to justice and to a trial that follows and improves on historical precedent for equitable proceedings in our great state.

Harmeet K. Dhillon is the founder and CEO of the Center for American Liberty, a civil rights nonprofit organization that fights in court for the fundamental civil rights of Americans.

The Federalist