If Ken Paxton returns to the Texas AG’s office, here’s why. Blame the Senate | Opinion

The Texas Senate left a door cracked for Ken Paxton’s return.

Now the question is whether the Senate can slam it shut.

The new Senate rules for Paxton’s Sept. 5 impeachment trial give Paxton more room than the Texas Constitution requires.

The Texas House impeachment managers got most rules they wanted. But a few almost seem written to help Paxton.

For starters, the rules written by a committee led by Sen. Brian Birdwell, R-Granbury, require an unusually high level of proof “beyond a reasonable doubt” for Paxton’s removal.

The Texas Constitution doesn’t require that much proof. It says only that the Senate decides removal.

If the committee wanted to set a standard, senators could have required a “preponderance” of evidence. Or a “clear and convincing” case.

But Paxton’s lawyers got their way.

That high level of proof wasn’t required when Gov, James Ferguson was removed in 1917, although it was a rule when a district judge was removed in 1975.

The Constitution asks senators to decide only what’s best for Texas, not to judge innocence or guilt.

Maybe there’s another reason senators set a higher threshold: For political cover, whichever way the vote goes.

Some senators may fear pushback from the tiny fraction of Texas Republicans — only 4% of eligible voters — who turned out in 2022 to renominate Paxton in a runoff, for 30 years tantamount to re-election.

That’s not the only rule that leans toward Paxton, although most of the decisions went prosecutors’ way.

For example, it takes only a majority vote of the Senate to drop any article of impeachment before the case ever goes to the jury. Yet Paxton’s removal will take a two-thirds vote.

Also, the committee completely set aside for now the four articles of impeachment backed by some of the most powerful evidence: those involving Paxton’s felony securities fraud indictments.

He remains free on $35,000 bond as a defendant in a pending criminal trial over a matter in which he already admitted civil responsibility and paid a fine.

One Democratic state senator also objected because the trial judge — who can be either Lt. Gov. Dan Patrick or another senator not running for re-election this cycle — has iron-fisted control over what evidence is allowed.

Sen. Sarah Eckhardt, D-Austin, a lawyer, former assistant county attorney and county judge, voted against the rules, as did Republicans Sen. Bob Hall, R-Edgewood, and Sen. Angela Paxton, a McKinney Republican who is Paxton’s wife.

Patrick or the presiding senator has “near total control,” Eckhardt wrote in a statement in the Senate Journal, “that, in almost every aspect, cannot be openly challenged, debated or even commented on.”

Supporters of Paxton’s impeachment celebrated that his wife would not be allowed to vote on his removal.

But unless another senator is forced to abstain, her vote won’t matter at all.

Either way, it will take 21 senators — two-thirds of the Senate’s overall membership of 31 — to remove Paxton.

Decatur criminal defense attorney Barry Green, a former prosecutor who writes online about news and legal cases, said the higher burden of proof shouldn’t make any difference.

“I think the verdict is already a foregone conclusion” for removal, he wrote in an online message, because otherwise the House wouldn’t have risked impeachment.

“But by using the criminal standard, it will make for a good sound bite afterwards,” he wrote.

Green wrote that the committee did Sen. Angela Paxton a favor by preventing her from voting: “They should make her go on the record with her ‘no’ vote.”

He wrote that the biggest mystery is not whether Paxton should be removed “but rather what took them so long.”

Now, we watch the Senate.