Live: Day 5 of Ken Paxton's impeachment trial closes with Nate Paul remaining center stage

Day five of suspended Texas Attorney General Ken Paxton's impeachment trial came to a close shortly before 7 p.m. Monday after a day of testimony in which House impeachment managers' witnesses continued to describe how Nate Paul, an Austin real estate developer and Paxton campaign donor, attempted to use Paxton's office for his own gain.

Four witnesses, two who worked in Paxton's office and two from the Travis County District Attorney's office, described the questionable process through which Paxton hired outside counsel to investigate law enforcement agencies conducting a federal investigation into Paul, pushed for Paul's request despite opposition from seasoned prosecutors, and the way Paxton's office was affected by his extramarital affair.

Ending the day on the stand, former Travis County District Attorney Margaret Moore testified that Paxton had approached her office about the investigation Paul, saying she listened out of courtesy but viewed the claim that a consortium of law enforcement agencies had conspired against Paul to raid his home and business after altering a search warrant as ridiculous.

"Mr. Buzbee I'm sorry, but this matter was dead on arrival, and it remained that way in my mind," Moore said in response to Paxton's attorney Tony Buzbee about not following through on the investigation.

Gregg Cox, a former prosecutor in the Travis County District Attorney's office, testified that an inquiry into Paul the office was conducting stopped in 2020, much to his chagrin, to yield to federal authorities and a series of complaints against Paul.

One of the major assets Paxton and Paul employed to investigate the matter on Paul's behalf, attorney Brandon Cammack, was hired through Paxton's authority outside of the normal channels as some of his deputies would not sign off on the hire, including former attorney general’s criminal justice deputy Mark Penley, who testified Monday morning.

Katherine "Missy" Minter Cary, Paxton's former chief of staff, was also concerned about the hiring of outside counsel after helping Paxton find the agency rules that allowed him to hire Cammack without his deputies' support.

Cary went on to testify about how she came to find out about Paxton's extramarital affair and the toll it took on his travel and security personnel on account of long hours and travel to unofficial locations. After a confrontational meeting in which Cary told Paxton to confess to the affair, high ranking deputies in the office had a meeting in which Paxton and his wife state Sen. Angela Paxton, R-McKinney, addressed the affair.

"My heart broke for her," Cary said of Sen. Paxton, who is mandated to attend the trial without the ability to vote on the outcome.

As the day closed, Lt. Gov. Dan Patrick, the trial's presiding officer, said to expect another long day in the Senate chamber Tuesday.

Patrick also said there will be no days off until the evidence is fully presented and senators complete their deliberations, which could come later in the week or over the weekend.

As day six is set to begin at 9 a.m. Tuesday, House managers have 9 hours and 19 minutes remaining on the clock to present evidence with Paxton's team sitting with 12 hours and 14 minutes. Each side had a total of 24 hours at the outset of the trial and will have an additional hour for closing arguments.

Details of Monday's action can be found in the live blog below.

Paxton and Paul's preliminary investigation in Travis County

In calling their seventh witness of suspended Texas Attorney General Ken Paxton's impeachment trial, House impeachment managers presented testimony from Gregg Cox, a former special prosecutor in the Travis County District Attorney's office who conducted a probe into Nate Paul and Ken Paxton in October of 2020.

Describing the outset of what he called a "preliminary investigation," Cox put together a memo of possible charges the office was considering investigating in relation to Paxton and Paul in 2020.

Cox said those potential charges included bribery, accepting a gift to a public servant, abuse of official capacity, election offenses tied to possible money laundering, tampering with government records, perjury, coercion of a public servant, official oppression and retaliation.

Receiving harsh blow back from Paxton's attorney, Tony Buzbee, the potential crimes that the district attorney's office were seeking to investigate were allowed to be heard by the court on a ruling from presiding officer Lt. Gov. Dan Patrick.

"The witness clearly said that he speculated this might have been some offenses," Buzbee questioned and objected to Cox's testimony.

Cox went on to say that his original foray into Paxton and Paul's relationship turned up conduct that he felt warranted further consideration.

At that point, Cox set up a meeting with the U.S. Attorney's Office in Austin.

"So much of what we were talking about related to Nate Paul, and we knew that Nate Paul was the subject of a federal investigation," Cox said.

"We were concerned that if we jumped into this and opened investigation we were going to interfere with an ongoing federal investigation, so we just wanted to basically deconflict with the feds before we took any action," Cox said.

Following conversations with federal officials, Cox and the Travis County District Attorney's office were asked to stand down, Cox said without elaborating much further.

However, he was disappointed with the outcome and feared that action from the ongoing federal investigation would not be timely enough.

"I was frustrated by that," Cox said. "It was something I felt was worthy of investigation, it involved important issues involving the state of Texas and I was concerned that, as I had seen happen too often, the federal government would sit on it for a long time and then we might not see anything happen."

When asked if he felt that is currently the case with the inquiry, Cox agreed.

Upon return from a brief break after 5 p.m., Buzbee railed against Cox's testimony.

"You just went through a litany of possible maybes," Buzbee argued. "You're just sitting up there and making a bunch of silly guesses aren't you?"

Coming after Cox's testimony, former Travis County District Attorney Margaret Moore took the stand and testified that Paxton requested a meeting for her office to hear Paul's complaint alleging that federal authorities over stepped with a search warrant on his home and business.

Moore called the claims ridiculous.

"It was going no where," Moore said. "I mean it would've been handled with courtesy, fill out the form then it would have been followed by a rejection letter."

Moore said her decision at the time was to contact David Maxwell, former assistant director of law enforcement in the attorney general's office, whom she met previously in working in the attorney general's office during Greg Abbott's tenure in the post.

The hope was that Maxwell would view things as she did, and let the case quietly go away.

"Because I didn't want to offend Mr. Paxton," Moore said. "Had it not been for Mr. Paxton's personal interest it would have been handled routinely."

Cox's and Moore's testimony followed statements on the stand by Katherine "Missy" Minter Cary, Paxton's former chief of staff, who spoke about Paxton's extramarital affair and the bureaucratic process of hiring outside counsel Brandon Cammack to investigate the federal investigation into Paul.

Under cross-examination by Buzbee, Paxton's attorney painted the process that Paxton took to hire Cammack as a legitimate one, as he had that right as the head of the office to skirt established office policy, with some exceptions.

Cary was sought by Paxton to clarify how he could hire Cammack as other deputies refused to endorse his hire, she was not in the position of adding comment about his qualifications for the job.

"I don't think I was ever asked to weigh in to that question," Cary said.

In respect to the affair, Buzbee largely argued it as irrelevant and not a standard by which officials should be removed from office.

“Imagine if we impeached everybody here in Austin who has had an affair,” Buzbee said. “We’d be impeaching for the next 100 years.”

Patrick, the presiding officer, expects the trial to go until 7 p.m.

'The ethical implications of a secret affair'

While having lunch in the spring of 2018, Katherine "Missy" Minter Cary, Paxton's former chief of staff, overheard two people speaking about her boss, Cary testified during suspended Texas Attorney General Ken Paxton's impeachment trial Monday afternoon.

The lunch was the first time that concerns about Paxton's conduct, which employees in the office were increasingly questioning, bubbled over and led Cary to speak with Paxton.

Meeting to tell Paxton about the woman whom she'd heard talking about him, Paxton said she was his real estate agent, who was in the process of selling his condo.

Cary believed her boss and didn't think much of it, until the woman, Laura Olson, showed up at an official event and travel aides and security detail personnel were growing increasingly skeptical of Paxton's behavior.

"The travel detail was calling about the hours they were working, the places they were being required to go, and they were concerned about the general's behavior," Cary testified.

Morale in the office around that time in 2018 had been getting worse, Cary testified, saying that one employee quit, refusing to answer why, which was a first in Cary's more than 25-year career with the agency.

"I think the affair was one of the concerns, that was not state business," Cary testified.

As it became clearer that Paxton was having an affair with Olson, Cary approached Paxton to talk about the situation and the ethical obligations of his office. She also told him that he needed to tell his wife, state Sen. Angela Paxton, R-McKinney.

Outside of the personal ramifications, Cary expressed her fears that the affair could leave Paxton vulnerable to other possible threats, she testified.

"We talked about the risk involved in secrets of this magnitude, that began to bleed over into the work of the Office of the Attorney General," Cary testified. "These things can open one up to bribery, misuse of office, misuse of state time."

In September 2018, the Paxtons held a meeting in which he confessed to the affair to the high ranking staff in his office, Cary testified. She recalled the meeting as one of the most uncomfortable she's been a part of, and was hurt when she saw Angela Paxton cry.

"My heart broke for her," Cary said.

The court of impeachment is in a recess until 3:20 p.m. when Cary will retake the stand and continue her testimony.

Penley didn't make calls to find sealed search warrant to Paxton's frustration, Paxton's team argues

In his afternoon cross examination, Paxton's attorney Mitch Little equated the suspended attorney general's frustration toward Penley and others in the attorney general's office to their lack of progress in continuing an investigation requested by Nate Paul.

Penley, a former criminal justice deputy in the attorney general's office, agreed that he along with David Maxwell,  former assistant director of law enforcement in the office, did "slow walk" Paul's request that they viewed as inappropriate from the beginning of the inquiry in the summer of 2020.

"And Ken Paxton was upset with you in that six weeks, you and David Maxwell had done, donut, nothing," Little emphatically asked, receiving Penley's confirmation.

Little also questioned Penley on his decision not to make phone calls in an effort gain access to a sealed federal search warrant. Penley said he suggested that avenue in a meeting with Paxton and Paul, but never placed a phone call to the office of U.S. Magistrate Judge Mark Lane, who had access to the warrant that Paul accused of being doctored to his detriment.

"It would've been problematic in my view," Penley testified. "Because a phone call about this seemed to be high risk to the functioning of the Office of the Attorney General, when we needed to work with federal authorities or appear in federal court, which our attorneys did all the time."

Penley was concerned that making the phone call, signaling any semblance of validity to Paul's request, would be offensive to federal officials who would then be accused of altering a search warrant of a privileged and ongoing investigation.

"The reason I didn't do it is because Nate Paul was claiming there was a grand conspiracy between a federal judge, two federal prosecutors, at least two state agencies, Task Force officers and a number of FBI agents," Penley testified. "Nate Paul filed a civil suit against 100 law enforcement agents and federal court in Austin over this."

Little continued to push against the claim that the investigation was in appropriate, saying the unwillingness and slow pace to conduct the investigation irritated Paxton, the boss in charge of the office.

"He was embarrassed at the lack of progress on the Nate Paul matter because you hadn't done anything true?," Little asked.

"That's true," Penley said.

Little also argued against claims Penley made earlier in the morning that it appeared at the time of the investigation request that Paxton could have received a bribe or quid pro quo from Paul.

Prodding on the issue of whether he had evidence of that accusation, Penley said he had circumstantial evidence based on Paxton's unwillingness to yield in his effort to see the investigation carried out.

Continuing to push the matter, Little asked on what else Penley based his claim.

"I had his behavior," Penley said.

"Anything else?," Little asked.

"The campaign donation," Penley said in reference to a $25,000 donation from Paul to Paxton.

"Anything else?," Little inquired.

"His absolute refusal to listen to common sense and reasonableness, legal positions, he wouldn't listen to anybody on the executive staff," Penley testified.

In a brief redirect, prosecutor Rusty Hardin, asked if Paul being the one making the request was the reason for his hesitance and ultimate unwillingness to conduct the investigation.

"Is there any way anyway, on God's green earth, you would ever want to support a criminal investigation based on this guy?," Hardin asked of Paul's request.

"Absolutely not," Penley said.

After Penley's testimony ended, House managers called Katherine "Missy" Minter Cary, Paxton's former chief of staff to testify on the witness stand.

'We were the only ones who could stop it,': Penley continues testimony on 'outrageous' conduct. Bagpipes bring break until 1 p.m.

Through Monday morning Mark Penley, a former criminal justice deputy in the attorney general's office, continued his testimony on why he refused to sign a contract allowing outside counsel to represent the attorney general's office in an investigation into a federal investigation of Nate Paul.

Penley, before a lunch break paused the trial until 1 p.m., also described his view of why he was unjustly fired from the office in November 2020, saying he confronted Paxton as he sough to hire attorney Brandon Cammack to conduct Paul's investigation request, explaining that the potential investigation was unwarranted and illegal.

"I saw it was there. I knew I wasn't going to approve it. I didn't touch it," Penley testified of the hiring request. "I said 'Ken, I cannot approve this and respectfully, I will not.'"

Penley's explanation and fears that Cammack lacked the prosecutorial experience to handle the request that had been sought by Paul were unwelcome to Paxton, who was upset by Penley's pushback, he testified.

Penley testified that he felt it was inappropriate for himself, as the lead prosecutor in the office, to handle the investigation request and by default would be inappropriate to refer the request to someone else.

"I was trying to walk him back from what I thought was a dangerous line he was trying to cross," Penley said.

At Penley's declaration that he would not oversee Cammack's work, Paxton said he would. Shortly after, Penley came to learn that Cammack had already been hired and had been looking into the matter for two weeks. The official approval process was needed to pay Cammack for the work he'd already done, Penley testified.

When Cammack, along with Paul's attorney Michael Wynne, issued subpoenas to two banks, Independent Financial in Round Rock and Amplify Credit Union in Austin, Penley and those who would go on to report the conduct to the FBI were increasingly frustrated.

"I was even more apoplectic. I was furious that this was going on and the Attorney General was allowing it," Penley testified. "Because this had to be stopped. The Attorney General obviously wasn't listening to anybody, he had turned Mr. Cammack loose, we didn't know what Mr. Cammack was going to do. It appeared that Mr. Paul was controlling this."

After the subpoenas, the eight attorney general's office employees went to the FBI, recounting their individual stories over a roughly four hour meeting.

Continuing to clarify a point of contention from week one of the trial in which whistleblowers were accused of not bring documentary evidence to the meeting, Penley doubled down that their eye witness accounts were the launch pad of the investigation into Paxton and Paul they sought when approaching the FBI.

"We were the only ones who could stop it, and we had to," Penley testified.

After answering more questions from prosecutor Rusty Hardin on why it was inappropriate and out of reach to try and request a sealed federal search warrant, and subsequently investigate U.S. Magistrate Judge Mark Lane, who had authority over the document, Penley said he knew he would be fired for his opposition to Paxton, whom Penley increasingly viewed as passive aggressive.

In October, Penley was put on leave after Paxton lost trust in him, and other whistleblowers, and for "using an insubordinate tone" with Paxton. Penley was then fired in November.

"I do the same thing all over again because it was the right thing to do and the only thing we could, other than stand by silently and let crimes be committed," Penley testified. "The agency was being abused, the laws were being abused, the behavior and the conduct of the Attorney General of Texas was outrageous."

Briefly beginning a cross examination before the proceeding was interrupted by bagpipe music in the Capitol rotunda, instigating a lunch break, Paxton's lawyer Mitch Little began questioning Penley.

Little asked whether or not the law was broken by Penley or David Maxwell, former assistant director of law enforcement in the office, painting the investigation inquiry into federal officials as another routine request from their boss.

Penley said that they had followed the law, coming to the conclusion that there was not a "scintilla" of evidence that warranted the inquiry to continue.

When asked if the effort would have violated any laws based on what they were being asked to do beyond the initial research of the request, Penley said that further examination and attempts to gain related records would have been a federal felony for obstruction of justice.

Little, who is pushing back on that claim, saying they would not have and could not have obstructed the federal investigation, was interrupted during his questioning by the bagpipes and will continue cross examining Penley upon return from lunch at 1 p.m.

Former AG deputy says Nate Paul's request for investigation lacked merit, Ken Paxton wanted it carried out

Mark Penley, a former criminal justice deputy in the attorney general's office, took the witness stand Monday to begin the fifth day of suspended Texas Attorney General Ken Paxton's impeachment trial, recounting a request by Paxton, which he viewed as "crazy" and "insane," to intercede in a federal investigation into Nate Paul, an Austin real estate developer and campaign donor.

Penley, who originally met Paxton while they worked for the law firm Strassburger & Price and spent 16 years as a federal prosecutor with the U.S. Attorney's Office in the Northern District of Texas, testified that Paxton asked for him to apply for the criminal justice job in his office and later introduced him to Paul's situation after he joined the office.

Paxton asked Penley to meet at a coffee shop in Dallas on Dec. 19, 2019, Penley testified. He took the meeting, which led to a phone call with Paul in the parking lot.

"And then he said let's go out to the car, we're going to make a phone call to a friend of mine," Penley recalled Paxton saying. "He told me this was a friend of his who had some search warrants executed on his home and offices."

The phone call, lasting between 20-30 minutes, was something Penley was uncomfortable with as it became clear that there was a connection between Paul's situation and Paxton's desire to see his office help, he said.

Penley testified that he told Paul at the time that his job was to represent the state of Texas and he would not be allowed to provide him legal advice.

"I thought 'Why is is the attorney general involved in this? Why is he wanting me to know about this? This is not a state matter from what I can tell,'" Penley said. "And I thought it was very suspicious that someone who was the target of a federal investigation was reaching out to the attorney general of Texas for legal help."

After first speaking with Paul, Penley testified that Paxton expressed a disdain and distrust for law enforcement, citing his own frustration born out of three state securities fraud charges against him.

"He made comments to me that indicated he was very mistrustful of law enforcement, and he made a comment as to how he felt about how he'd been treated by law enforcement, which was in a negative way," Penley said of Paxton after the call. "He said, I've been the subject of a corrupt investigation."

Then in June, during a weekly staff meeting, a written referral to look into Paul's complaints alleging that federal authorities had conducted an illegal search warrant on his home and business was put before deputies in the office to investigate.

Penley and Paxton's former first assistant, Jeff Mateer, and former assistant director of law enforcement, David Maxwell, discussed Paxton's request after the meeting, agreeing to tread carefully.

"Well, my initial reaction was, this is crazy," Penley said. "We hoped to slow walk it and see if the attorney general would drop it."

After more meetings between the deputies and Paul's legal counsel, Paul claimed that the metadata on the original search warrant used to comb through his home and business had been tampered with, removing the original intent of the search to find guns and drugs and extending it to documents and computers.

After looking into the claim, Penley and other deputies agreed that innocent and routine changes to the metadata had occurred, indicating that no crime had been committed in altering the search warrant, deflating Paul's claim of malfeasance.

Penley referred the news to Paxton, who agreed at the time to stop looking into the matter after one more meeting to explain the findings to Paul and his team.

"I said, Ken, there is no evidence of a crime, I recommend we close this investigation," Penley testified.

During that meeting, Penley testified, Paul was "angry" about the result and Paxton was also left unsatisfied.

"Mr. Paul acted like we didn't understand who the real boss was," Penley testified. "It wasn't the attorney general, it was him."

Struggling to collect evidence from Paul throughout the process, something Penley viewed as a "red flag," Paxton then told Penley he would try to get the information, essentially changing his mind and continuing a push to see the investigation carried out.

By that time, Penley said his concern that Paxton was either being bribed, blackmailed or somehow controlled by Paul heightened, fearing that he may lose his job if he continued to disagree with his boss.

"And I was trying to find a way to prove to him that Mr. Paul's theories had no merit and we had no business taking Mr. Paul's side against the federal authorities who are investigating him for criminal activity."

Follow live as the fifth day of Paxton's impeachment trial starts at 9 a.m., more testimony expected

After the first week of suspended Texas Attorney General Ken Paxton's impeachment trial ended Friday with testimony from a witness calling Austin real estate developer Nate Paul's effort to involve the attorney general's office in a federal investigation against him a conspiracy theory, the trial will resume at 9 a.m. Monday with more witness testimony expected to continue.

The fourth witness called by House impeachment managers, David Maxwell, a former Texas Ranger who served as the attorney general's law enforcement director, viewed Paul's request for the state agency to look into the investigation against Paul as an inappropriate request made by someone he viewed from the outset as a criminal.

With Maxwell's testimony concluded, four of eight attorney general's office whistleblowers have taken the stand. Under time limits on arguments set by Senate trial rules, it is unclear if all whistleblowers will have time to take the stand and field questions from prosecutors and Paxton's defense team.

Both sides have been given 24 hours to present their cases and to question the other sides' witnesses. Heading into Monday's trial session, House prosecutors have 13 to 14 hours remaining, and for Paxton's side the available time is similar.

Barring any lengthy delays, this could be over at the low end of Lt. Gov. Dan Patrick's two-to-three week estimate.

Outside of the whistleblowers, several other high interest witness have been subpoenaed to testify, including Houston lawyer Brandon Cammack, who's named in an impeachment article for issuing nearly 40 subpoenas against Paul's adversaries at Paxton's request; Drew Wicker, a former Paxton confidante who says he overheard a conversation that suggested Paul may have paid for a Paxton home remodel; and Laura Olson, a woman with whom Paxton had an alleged extramarital affair.

Paxton is facing 16 impeachment articles, including bribery and misuse of office for providing legal assistance favorable to Paul, a Paxton campaign donor.

Follow along here for live updates from the American-Statesman's Hogan Gore and Tony Plohetski:

Previous Ken Paxton trial coverage:

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This article originally appeared on Austin American-Statesman: Live: Day 5 of Ken Paxton's impeachment trial closes with Nate Paul remaining center stage