Jurisprudence

Texas AG Ken Paxton, Under FBI Investigation, Asks SCOTUS to Overturn the Election

The lawsuit, which seeks to invalidate millions of votes, makes more sense as an audition for a pardon than as a legal document.

Paxton stands at a cluster of mics on the steps of the U.S. Supreme Court.
Texas Attorney General Ken Paxton in Washington in 2016. Kevin Lamarque/File Photo/Reuters

On Tuesday morning, Texas Attorney General Ken Paxton asked the Supreme Court to effectively declare Donald Trump the winner of the 2020 election. Paxton’s lawsuit falsely accuses Georgia, Michigan, Pennsylvania, and Wisconsin of counting invalid votes in violation of the Constitution. It asks the justices to remedy this alleged misconduct by forcing all four states’ legislatures to throw out every vote and appoint electors who support Trump. Many Republican lawmakers have already endorsed such a scheme, but Paxton is the first to ask SCOTUS to facilitate it. If the Supreme Court took up his invitation, it would commit the single biggest act of vote nullification in American history, voiding millions of ballots to hand Trump an unearned second term.

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The Supreme Court, however, is not going to take up Paxton’s invitation. It has asked for a response from the four defendant states by 3 p.m. on Thursday; in light of the court’s hasty disposition of similarly laughable complaints, we can safely assume that the justices intend to dispatch this case promptly. Paxton’s suit is shot through with conspiracy theories and constitutional claims with no basis in law. Texas Solicitor General Kyle Hawkins, who typically authors the office’s lawsuits, did not sign on to this one, nor did his deputies; instead, Paxton brought in a “special counsel” from outside the agency. His suit is so ridiculous that it led some commentators to wonder whether the attorney general might have another motive for filing it. Paxton, after all, is reportedly under investigation by the FBI for alleged bribery and abuse of office. Trump, meanwhile, has been distributing pardons to his allies like candy. Paxton’s suit makes more sense as pardon-bait than it does as a legal document. And he may need presidential clemency to escape the federal criminal charges that could be imminent.

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Paxton, a Republican, has backed the Trump administration in court time and again, supporting Trump’s policies (like eradicating the Affordable Care Act) while combating progressive priorities (like voting rights). He also embarked upon a relentless crusade to suppress voting rights in the run-up to the 2020 election. Paxton fought to prevent young people from voting by mail, then threatened to prosecute Texans who voted absentee due to fear of COVID-19. He prevented counties from sending absentee ballot applications to all voters, prohibited any county from offering more than one ballot drop box, and unsuccessfully sought to ban drive-thru voting. No state official did more than Paxton in 2020 to restrict the franchise. It is not entirely surprising that he now asks, after the election, that SCOTUS toss out millions of ballots.

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The attorney general also has a long history of legal trouble that predates his alliance with Trump. In 2015, a Texas grand jury indicted the attorney general on charges of felony securities fraud. Paxton allegedly urged his friends to buy shares in a company without disclosing his secret commissions or registering as a securities broker with the state. He has already paid a fine for this transgression, and remains under indictment to this day. But his case has never gone to trial, in large part because his friends in the county government defunded the prosecution. Paxton’s wife, a Republican state senator, also filed legislation that would allow her husband to issue exemptions from the securities regulations he allegedly violated.

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This fall, Paxton’s own staff accused him of even more serious crimes. On Oct. 1, seven senior staff members asked federal law enforcement to investigate the attorney general for “violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses.” The group was led by Jeff Mateer, who served as Paxton’s top assistant before resigning. Mateer has sterling GOP bona fides: In 2017, Trump nominated him to the federal bench, but he withdrew after CNN reported that he had derided transgender children as part of “Satan’s plan,” condemned same-sex marriage as “debauchery,” and endorsed “conversion therapy.” Paxton dismissed Mateer and his colleagues as “rogue employees” and fired aides who refused to resign after reporting their boss. These aides then launched a whistleblower lawsuit against the attorney general.

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Mateer’s letter did not explain the allegations against Paxton. But in a leaked text message, he told Paxton that the complaints involved his “relationship and activities with Nate Paul.” A real estate developer in Austin, Paul donated $25,000 to Paxton’s 2018 campaign. The two are, at a minimum, acquaintances: While Paxton was having an affair with an aide to a GOP state senator, he encouraged Paul to hire his mistress. (Paxton has acknowledged the affair but denied pulling strings for his mistress; Paul has denied that he hired the individual at Paxton’s request.)

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In recent years, many of Paul’s businesses have declared bankruptcy, leading to legal disputes with creditors. One conflict involved the Mitte Foundation, a nonprofit that provides grants and scholarships to lower-income students. The foundation invested with Paul, then sued him, alleging that he concealed financial information. Paul then agreed to buy out the foundation’s interest in their partnership for $10.5 million, then allegedly refused to pay. Paxton, acting as attorney general, intervened on Paul’s behalf, asking the judge to halt the case. Following this intervention, Paul’s lawyers contributed $25,000 to Paxton. Then, shortly before Mateer sent his letter, Paxton withdrew from the proceedings.

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In 2019, the FBI raided Paul’s mansion and offices in an investigation that is reportedly focused on securities fraud. Paul then accused FBI agents, federal prosecutors, and a federal judge of breaking the law, allegations that appear to be frivolous. Yet Paxton quickly jumped to his defense: The attorney general appointed a “special prosecutor” to investigate Paul’s accusations against the federal government for $300 an hour. He picked Brandon Cammack, a young Texas attorney with no prosecutorial experience, and retained control over the probe. Cammack has ties to Paul’s own attorneys. Mateer’s letter was likely inspired by Paxton’s effort to derail the federal investigation into Paul.

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On Nov. 17, the AP reported that the FBI is now investigating Paxton alongside Paul. According to the AP, the FBI believes the attorney general may have abused his office to help Paul get out of legal trouble. This probe raises the prospect of federal bribery and corruption charges against Paxton. This time around, he has no power to defund the prosecutors—though he is already using the powers of his office to undermine the FBI’s credibility.

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As his term winds down, Trump has shifted his attention to pardoning his friends. Some of his pardons are extraordinarily broad, and even seem designed to fend off future criminal charges. While a president cannot pardon someone for future conduct, he can pardon them for offenses that have already been committed but not yet charged. Theoretically, then, Trump could issue a preemptive pardon shielding Paxton from charges pertaining to his dealings with Paul. The FBI could still investigate him, but it would have little incentive, since any charges would be voided by Trump’s clemency.

If Trump does grant Paxton preemptive clemency, he could still be liable under state law. (Texas Gov. Greg Abbott could pardon him for state crimes, though he distanced himself from the attorney general this fall.) But a pardon is a powerful shield that could immediately resolve Paxton’s most serious legal difficulties. There is no chance that the Supreme Court will take up his case: It takes five votes to hear a dispute between states, and zero justices will burn up their political capital on this farce. Paxton’s lawsuit won’t overturn the election. But it just might succeed in keeping him out of federal prison.

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