AUSTIN, Texas — Editor's note: This article originally appeared in the Texas Tribune here.
Lawyers for suspended Attorney General Ken Paxton are pushing to disqualify three Democratic state senators as jurors in his upcoming impeachment trial.
Paxton’s lawyers filed a motion Friday that asks Lt. Gov. Dan Patrick to disqualify Sens. Nathan Johnson of Dallas, Roland Gutierrez of San Antonio and José Menéndez of San Antonio, arguing they have a proven bias against Paxton.
“Like numerous courts around the country, the Texas Court of Criminal Appeals has held for almost a century that potential jurors with a bias or prejudice against the accused are disqualified from serving on his jury as a matter of law,” the motion said. “Jurors José Menendez, Roland Gutierrez, and Nathan Johnson have such a bias and have proclaimed it loudly, time and again.”
The motion cites a number of critical public statements that the senators have made about Paxton over the years, including some in recent weeks. For example, it points to an MSNBC interview last month in which Gutierrez, who is also a candidate for U.S. Senate next year, said the evidence the House gathered “could not be refuted.”
“No one who has publicly declared the charges against a defendant irrefutable can even play at impartiality, let alone serve in an impartial manner,” Paxton’s lawyers argued.
The motion also cites a Tuesday tweet from Johnson reacting to news that a pro-Paxton political action committee had recently given $3 million to Patrick, who is presiding over the trial. Johnson called the donation “obscene.”
The tweet not only proved Johnson’s bias but also violated a gag order Patrick had issued the day before, according to Paxton’s lawyers.
The House voted to impeach Paxton in May, accusing him of a yearslong pattern of misconduct and lawbreaking. Most of the articles center on claims from Paxton’s former deputies that he abused his position to help a wealthy Austin businessman and campaign donor, Nate Paul.
Paxton is preparing for trial to begin Sept. 5 in the Senate on whether he should be permanently removed from office.
The Senate already disqualified Republican Sen. Angela Paxton — Ken Paxton’s wife — from voting in the trial when it approved rules for the proceeding last month. The chamber did so with a rule that said the “spouse of a party to the court of impeachment” has a conflict of interest.
“If Senator Paxton may be required to step aside, Senators that have demonstrated a bias or prejudice against the Attorney General must be required to do so as well,” Paxton’s lawyers said.
The impartiality of senators has long been a source of debate given that Paxton is a former senator himself, his wife currently serves in the chamber and they have their own relationships with senators. Sen. Bryan Hughes, R-Mineola, is even referenced in the articles of impeachment as an unwitting “straw requestor” for an attorney general’s office legal opinion that helped Paul. Hughes has not been disqualified.
Angela Paxton’s disqualification was the subject of a new lawsuit from Houston conservative activist Steve Hotze, a staunch Paxton supporter. Filed in Travis County district court Friday, the lawsuit argues that the trial rules unfairly singled out Angela Paxton because impeachment is an inherently political process, rife with potential conflicts of interest.
“Despite the fact that every senator and the Lieutenant Governor arguably have a conflict ‘personal or private’ interest in the impeachment proceeding and/or biases for or against General Paxton, Rule 31 targets one individual, Senator Angela Paxton, and the voters who live in Senate District 8,” the lawsuit said.
The lawsuit also challenges the sweeping gag order that Patrick issued Monday, saying it violates free-speech rights.
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