It’s hard to believe, but when the Open File started in 2012, the idea that prosecutorial misconduct is rampant in the criminal justice system was controversial. Today, it’s not. At all. Back then, defense attorneys swapped horror stories, but media skeptically asked for data proving that prosecutorial misconduct was common. Unsurprisingly, definitive big-picture data about furtive actions taken in hundreds of millions of cases, sometimes hidden for years, if not permanently, is impossible to come by. So, the Open File focused more on the qualitative, rather than the quantitative, aspects of misconduct. To show how much human damage prosecutorial misdeeds cause, the Open File usually focuses on misconduct in criminal cases, where state malfeasance regularly secures guilty verdicts against the innocent and harsher punishments for the guilty.
To talk about prosecutorial misconduct in the case of Texas Attorney General Ken Paxton, however, such parsing is unnecessary. There are an abundance of bad acts and they have caused measurable harm. As the nation now knows, he commits ethical lapses all the time. Even prior to becoming a prosecutor, when Paxton’s 12-year tenure in the Texas state legislature moved Ted Cruz to call him a “tireless conservative warrior,” he is alleged to have engaged in questionable financial activities. As a result, Paxton took office as Texas AG in 2015 under federal indictment for securities fraud. That trial is pending.
A partial list of Paxton’s track record since: prior to asking SCOTUS to gut the ACA and overturn the popular vote, he was actively engaged in racist voter suppression efforts in Texas that included fighting curbside voting during COVID-19 and battling the Texas NAACP over polling place mask-wearing requirements. To show the extensive damage Paxton leaves in his wake, we don’t even have to talk about the abuse of prosecutorial power in the context of criminal defendants – although we could, like that time Paxton fought the Harris County DA’s office and the U.S. Supreme Court to push for the execution of Bobby Moore, who has intellectual disability. NB: Paxton failed in that effort and Moore is now free from his nearly 40-year incarceration. Paxton also failed when he attempted to deny court-ordered compensation to innocent former prisoner Alfred Dewayne Brown, who spent 12 years incarcerated and nearly ten on death row due to a wrongful conviction marked by prosecutorial misconduct.
At the moment, though, Paxton’s immediate problem isn’t about stiffing the wrongfully convicted or trampling the constitutional rights of people with intellectual disability or trying to disenfranchise Black voters. It’s about a lawsuit brought by his former senior staffers. In October, eight of Paxton’s colleagues spoke out about corruption in his office. Despite the Texas Whistleblower Act, which should have protected them, by mid-November, all eight were gone from the Office of the Attorney General. In the words of the lawsuit filed by four of the whistleblowers:
“It is sadly ironic… that Attorney General Warren Kenneth Paxton – the Chief Law Enforcement Officer for the State of Texas – has flagrantly violated and apparently believes he is above the very law he promotes.”
The petition was filed on November 12, 2020 and provides an important look at the current Attorney General of Texas and the office he runs, an agency that employs over 4000 people and impacts the lives of millions more. Below is a detailed summary of its claims.
The Letter
On October 1, 2020, seven senior Office of the Attorney General (also known as “OAG”) staffers notified their head of HR that they believed Paxton had violated state and federal law. Their letter explained that “an appropriate law enforcement authority” had also been informed. An eighth senior staffer was travelling but submitted his own letter in agreement. The eight whistleblowers were seven prosecutors and a seasoned law enforcement professional:
Jeff Mateer, First Assistant AGRyan I. Bangert, Deputy First Assistant AG David Maxwell, Director, Law Enforcement Division, OAG J. Mark Penley, Deputy AG for Criminal Justice at OAG Darren L. McCarty, Deputy AG for Civil LitigationJames Blake Brickman, Deputy AG for Policy and Strategy Initiatives Ryan M. Vassar, Deputy AG for Legal Counsel Lacey E. Mase, Deputy AG for Administration
On November 12, 2020, after harassment and terminations leaving seven of the eight whistleblowers unemployed and one placed on permanent leave, four former staffers from the OAG filed a lawsuit under the Texas Whistleblower Act. The petition, which notes each of the petitioners had been “hand-picked by Paxton himself” to work in the OAG, details both the alleged misconduct and Paxton’s scorched-earth retaliatory campaign against his staff after they expressed concern about corruption in the office.
Nate Paul: the Beneficiary of Paxton’s Alleged Misconduct
The allegations of Paxton’s misconduct center on his use of the OAG to advance the economic and legal interests of Austin-based real estate developer Nate Paul, who donated $25,000 to help Paxton get elected. As the whistleblower’s filing dryly states, “despite a very busy 2019 and 2020, Mr. Paul, age 33, found time to enjoy his personal friendship with the Attorney General of the State of Texas, Ken Paxton, age 57.”
To understand the alleged misconduct, it’s necessary to first understand Paul’s “very busy” 2019-2020. This included FBI searches of his home, two of his offices and a storage space; sixteen of his companies filing for bankruptcy; and lenders initiating foreclosures on his properties related to $250 million dollars of delinquent debt, among other activities. Paul also stayed busy creating a company to sue a charity with whom he had done business. The result of that particular action: a district judge threw out case, labelling it “bad faith,” and sanctioned Paul and his attorney more than $225,000 “for the frivolous and malicious use of the justice system.”
During this time, Paul was also busy writing and submitting requests to both the Travis County DA’s Office and the OAG seeking criminal investigations of multiple parties, including: the judge who signed the search warrants, the FBI agents and state law enforcement agents who carried out the search warrants, a federal judge, the charity he went after, a credit union that held a lien on one of his properties, and other “enemies.”
Paxton’s actions that concerned the whistleblowers were undertaken to further Paul’s interests, but may have also benefitted someone else who mattered to him. According to the brief, the AG had successfully lobbied Paul to hire a woman “with whom Paxton has carried on a lengthy extramarital affair”, presumably aligning her financial interests with Paul’s advancement.
Paxton allegedly attempted to help his friend in four primary areas of misconduct: interfering in Paul’s open records requests, intervening in Paul’s civil litigation, releasing an informal legal opinion (in the middle of the night) to benefit Paul, and undertaking criminal investigations on his behalf.
The Open Records Requests Shenanigans
Paul filed ‘Open Record’ requests related to searches of his properties conducted by the FBI and state law enforcement agencies. Ruling on such requests is one of the AG Office’s duties, but, in Paul’s case, OAG senior staff was not inclined to support the requested disclosures. In their petition, the whistleblowers assert that OAG endorsement of Paul’s disclosure requests would have disrupted settled practices, weakened OAG support from other agencies, compromised sensitive OAG information held by other agencies and potentially sparked new litigation. The petition notes that while OAG rules on about 30,000-40,000 such requests per year, the plaintiffs were not aware of Paxton’s personal involvement in any other open records request, however, Paxton leaned on his senior staff, the eventual whistleblowers, to upend OAG policy and give Paul the records he wanted. Paxton allegedly expressed his shared animus for Paul’s enemies by stating that “he did not want to use the OAG to help the FBI or DPS in any way.” (That’s DPS as in the Texas Department of Public Safety, aka the police.) When he couldn’t get his deputies onboard, the petition alleges that Paxton personally removed the file from the office, including documents sealed by a federal court, and did not return it for 7-10 days.
The Civil Litigation Intervention Shenanigans
To further develop a theme: the OAG handles around 35,000 civil litigation cases each year, but Paxton’s senior staffers assert in their lawsuit that they were aware of only one civil case in which Paxton himself took an interest: Paul’s. An Austin charity called the Mitte Foundation initiated a lawsuit related to its limited partnership with several of Paul’s companies. Among other things, the foundation claimed they were being denied access to books and records of their financial partners. The whistleblowers allege that in May and June of 2020 Paxton began to “take a deep personal interest” in the case and push OAG colleagues to intervene. While the OAG can intervene in any litigation related to charities in order to protect their funds, the senior staff were disinclined to do so in this case – not only was the charity pursuing the litigation to protect its assets, the parties had already reached a settlement and were back in court only because Paul breached the agreement. Paxton was so determined to intervene that he planned to appear in court in person on the matter – something he had not done “on behalf of the OAG in years.” Two of the future whistleblowers talked him out of the court appearance but became concerned that “Paxton was seeking to exert influence in the case not to assist the charity, but to pressure the charity to reach a settlement favorable to [Paul’s company] World Class Holdings.”
The COVID-19 Legal Opinion Shenanigans
They say timing is everything. Paul faced foreclosure sales on August 4, 2020. On July 31, 2020, Paxton contacted a future whistleblower and asked him to look into whether COVID-19-related restrictions on gatherings prevented the foreclosure sale of properties. He then instructed two staffers of the legal conclusion he wanted them to reach: that such gatherings were prohibited. On August 2, 2020, at 1:00 AM CST, OAG released an informal legal opinion that foreclosure sales should not be permitted. The following day, August 3, 2020, Paul’s attorneys used the opinion to prevent the scheduled sales.
The Investigative Shenanigans
As noted, Paul made multiple written requests seeking criminal investigations of his “enemies,” including law enforcement agencies, by both the OAG and the Travis County DA’s office. Although Paxton, again, allegedly “rarely showed an interest” in the office’s 2,000+ criminal investigations each year, he got very involved in those requested by Paul. With Paul and his attorney, Paxton personally met with the Travis County District Attorney Margaret Moore in May 2020 about the matters. She declined to get involved. Paul and his attorney then met with the future whistleblowers, who informed them that many of the investigations he sought were federal and outside of the OAG’s jurisdiction, among other issues. Flouting OAG rules and procedure, Paxton then used OAG funds to hire an outside attorney, Brandon Cammack, to conduct the investigations that Paul wanted done. Although Paxton would later cast Cammack as a “special prosecutor” in his PR war against the whistleblowers, he was a Houston criminal defense attorney with alleged ties to Nate Paul’s attorney. Cammack had only practiced law for five years and had never been a prosecutor. However, based on Cammack’s work, Paul began telling media that “the OAG was investigating” his complaint against federal officials.
In September 2020, matters came to a head. As he pressured his deputies to expedite the multi-step approval process necessary to get Cammack officially under contract, both Paxton and Cammack began asking the future whistleblowers to obtain an official OAG email address for him as well. On September 28, whistleblowers were shocked to learn that Cammack obtained 39 Grand Jury subpoenas from the Travis County Grand Jury related to Paul’s investigations. This number later grew. The whistleblowers believed the subpoenas were being used to obtain documents related to Paul’s civil cases.
The Retaliation
After their October 1, 2020 letter, the whistleblowers say they began to face a campaign of intimidation, harassment, public misrepresentation and wrongful termination. On October 2, 2020 J. Mark Penley, Deputy AG for Criminal Justice and David Maxwell, Director of the Law Enforcement Division, were placed on “investigative leave.” They say they were given no information about what, if anything, was being investigated and they were never questioned. The following day, whistleblower Jeff Mateer, the First Assistant AG, resigned. (Sidenote on Mateer: his nomination to federal judgeship was derailed in 2017, according to the New York Times, when media reported he made disparaging remarks about LGBTQ people and called transgender children “evidence of Satan’s plan.”)
On October 3, 2020, the OAG issued a statement alleging that the whistleblowers’ complaint about the AG’s behavior “was done to impede an ongoing investigation of criminal wrongdoing by public officials including employees of this office.” There is no evidence to support this. The OAG’s statement seemingly concluded with a threat: “Making false claims is a very serious matter and we plan to investigate this to the fullest extent of the law.”
Paxton continued to use the OAG’s communications office to go after the whistleblowers in another statement on October 5, 2020. Misrepresenting his meeting to plead Paul’s case for investigations with the Travis County DA’s office, Paxton issued a public statement explaining that his rogue hiring of Cammack was done to satisfy a request for investigation made by the Travis County DA’s Office. Noting that the investigation had been “impeded” by his colleagues, Paxton recast the hiring of Cammack by claiming “I ultimately decided to hire an outside independent prosecutor to make his own independent determination.” Travis DA Moore swiftly shot this narrative down. Even after Moore’s public rebuke, Paxton continued to misrepresent the facts to national media regarding the role of the Travis County DA’s office as the instigator of the criminal investigations undertaken by Cammack at taxpayer expense.
In addition to Paxton’s public campaign to discredit the whistleblowers to media, there was also private retaliation taking place. As the petition notes,
“After Mateer resigned and Maxwell and Penley were placed on leave, the remaining whistleblowers and other employees of OAG watched as their colleagues were systematically retaliated against, mistreated, placed on leave, and fired.”
On October 5, 2020, Paxton’s new First Assistant AG, Brent Webster, brought an armed guard to speak with whistleblower Brickman, insisting the two men speak alone. Brickman offered to speak to Webster in the presence of other deputies, but Webster refused. Brickman and other whistleblowers were excluded from high-level meetings and their work responsibilities were diminished. On October 19, Ryan Vassar was asked to meet with Webster and arrived to find an armed guard present while Webster informed him he was also being placed on leave. After collecting his belongings, he was walked out of the building by the armed guard. On October 20, Brickman and Mase were fired. McCartney and Bangert resigned on October 26 & 28. On November 2, Maxwell and Penley were fired. After less than six weeks from their letter, only one of the whistleblowers was still employed at OAG, Vassar, who was on indefinite leave at the time of the filing. Less than three weeks later, on November 17, 2020, he was fired as well.
Taxpayers Paying For Paxton’s Fight
The whistleblowers’ suit charges Paxton with violating the Texas Whistleblower Act and seeks a jury trial, in addition to other damages, including fines of $15,000 for “each adverse personnel action.” The OAG has placed outside counsel under contract at the rate of $540/hour to defend Paxton, according to the Texas Tribune, but has not yet filed a response.
The Open File will continue to follow the case as the briefing comes in and other developments occur.
