Ken Paxton, lawyers test limits of gag order restricting comments on impeachment trial

Texas Attorney General Ken Paxton gave a speech in the Senate chamber during his swearing-in ceremony on Jan. 10, 2023. This is Paxton's third term in the office.
Texas Attorney General Ken Paxton speaks in the Capitol during his swearing-in ceremony on Jan. 10, 2023 to begin his third term. Credit: Bob Daemmrich for The Texas Tribune

Suspended Attorney General Ken Paxton and his legal team appear to be testing the limits of a gag order from Lt. Gov. Dan Patrick that seeks to limit commentary on Paxton’s September impeachment trial before the Texas Senate.

Patrick, the presiding judge in the trial, issued the sweeping gag order July 17, banning all involved parties from making comments that could prejudice the trial or impair the impeachment court’s ability to be “fair and impartial.” The gag order, however, permits the parties to make statements “reciting, without comment, information contained in public records.”

Paxton’s team has leaned on that provision in recent days to issue news releases drawing attention to its latest court filings once they are publicly available on a Senate website. And on Thursday, Paxton’s lead lawyer, Tony Buzbee, went on a Dallas radio show and mostly read from the filings verbatim, including passages that disparaged the case against Paxton and expressed doubts on the quality of evidence against him.

In another instance, although the gag order prohibits “prejudicial and inflammatory statements,” a Paxton campaign fundraising appeal rallied supporters against what the email called an “illegal” impeachment. Although Buzbee defended the fundraising appeal as complying with the gag order, Paxton later removed the language from a donation link on his campaign website, according to Dallas TV station WFAA.

Paxton’s side insists it is following the gag order.

“The attorney general would not violate or go contrary to the orders of the court, and we don’t believe that he’s done so,” Buzbee told the Dallas radio host, Mark Davis.

The House impeachment managers have been quieter since the gag order was issued. But in a filing last month, they expressed some irritation with Paxton’s team and the gag order, alleging that a Paxton motion “was shared with the press even though the Senate has not posted it to the website.”

“The House Managers trust that the Senate will deal with any departure from its mandates as the Senate deems fit,” the filing said.

As they face questions about their compliance with the gag order, Paxton’s lawyers have also gone on offense over it. In one recent filing, they accused impeachment managers of using their filings to “circumvent” the gag order “by filing a ‘notice’ to make a public comment.” The impeachment managers had filed several such notices to briefly indicate their opposition to various pretrial motions and promise a more thorough response by an Aug. 15 deadline.

At the same time, Paxton’s lawyers have been using their filings to offer diatribes against the other side. One filing said the House lawyers’ promises of damning evidence — made before the gag order was issued — were “bluster and bluff” and were “aggressive, reckless, misleading.” Buzbee quoted that filing on the air Thursday.

Patrick’s office has not commented on possible conflicts with the gag order.

Some of Paxton’s supporters are plainly unhappy with the gag order. Houston conservative activist Steve Hotze has sued the Senate in state and federal court over the gag order, calling it unconstitutional.

“The Gag Order in the Senate rules infringes on the First Amendment right of Plaintiffs to hear the impressions, positions, and views of Texas senators and state representatives in connection with the impeachment trial,” the federal lawsuit said. The gag order also “infringes on the First Amendment right of Plaintiffs to communicate with Texas senators and state representatives in connection with the impeachment trial.”

The exhibits of the lawsuit include screenshots of text messages that two Republican state lawmakers sent Hotze after he inquired about the trial, telling him they cannot discuss it due to the gag order. The lawmakers were Sen. Bob Hall of Edgewood and Rep. Steve Toth of The Woodlands.

After the gag order was announced, the House sent a memo to members emphasizing its provisions and potential consequences for violating them — contempt of court, a fine of up to $600 and a jail sentence of up to six months.

In the Senate, members made clear well before the gag order was issued that they will not be speaking publicly about the matter. Shortly after the House impeached Paxton in May, multiple Republican senators released similar statements saying they welcomed feedback from their constituents but could not discuss the case with them.

Buzbee’s radio interview represented the first time a person directly involved in the case made a media appearance since the gag order was issued. The interview lasted nearly 16 minutes and mostly featured Buzbee reading from pretrial filings and answering factual questions about the trial and its rules.

Buzbee began by saying Paxton’s team is being “very careful about following the gag order,” but then noted that parties are allowed to recite public information on the case and comment on the “general nature of the proceedings.”

“Of course I would never go beyond that,” Buzbee said.

Buzbee’s interview came minutes before Paxton appeared in a Houston courtroom for a hearing in his long-running securities fraud case. Paxton entered and exited through a special entrance away from assembled reporters — a decision his lawyer, Dan Cogdell, attributed to Patrick’s order.

“He’s under a gag order. That’s why,” Cogdell told reporters afterward. “And he’s got this lawyer with really bad hair, meaning me, that told him to go out the back way.”

Disclosure: Tony Buzbee has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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