Disbar Ken Paxton–And Then Some

The Texas Attorney General’s ridiculous, malevolent suit to throw out the ballots in four other states makes him more than a Trump stooge. He’s a legal menace.

What we are witnessing during this endless post-election period is a coordinated attempt to murder the American system of government. This crime is being carried out in public by lawyers who have taken an oath to uphold the Constitution they seek to destroy.

Spare me sophistry about “the better angels of our nature.” These chiseling shysters should face not just disbarment but monetary sanctions, and maybe jail.

And my lead nominee for disbarment, fines, and even prison is not the pathetic dotard Rudy Giuliani or the deranged Kraken keeper Sidney Powell; as of Tuesday, December 8, it is  Texas Attorney General Ken Paxton.

For years, Paxton has relished his role as a kind of national marplot, sticking spikes in the wheels of progressive legislation. “I get up in the morning and I sue the federal government,” he said during the Obama years.  And on Tuesday, just as the nation got the welcome news that the Supreme Court had denied review of the frivolous Pennsylvania lawsuit, Paxton filed a motion in the Supreme Court to grant Donald Trump a second term.

That “lawsuit” may be the most cynical misuse of the legal process since April 1802, when Chief Justice John Marshall and Rep. James Bayard sat down in a tavern to plot a legal challenge (before Marshall’s own court) to the repeal of the Judiciary Act of 1801.  (See The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court by Cliff Sloan and David McKean for details—or just read it anyway, it’s a terrific book).

Paxton may be on his way to jail anyway. He was indicted five years ago on state securities-fraud charges and is still awaiting trial; last month, eight of his own top aides told federal officials that they believed Paxton was guilty of abuse of office, improper influence, and bribery in a separate matter involving a wealthy campaign donor.

But mere garden-variety bribery and fraud pale in turpitude compared to a conscious, deliberate effort to destroy American democracy for political advantage. And that is why Paxton has now asked the Justices to overturn the election results in Georgia, Michigan, Pennsylvania, and Wisconsin. Those four states have a combined 56 electoral votes—enough, if switched to Donald Trump, to give him 288 electoral votes and a renewed lease on the White House.

The chance of this lawsuit having any effect on the election results is, if not none, at least vanishingly small. The formidable Stephen Vladeck of the University of Texas immediately tweeted that “The Court is *never* going to hear this one.” I think that’s right; even Justice Samuel Alito should be able to see that entering this morass would be a near-death experience for the Court.

Since Paxton’s motion was filed, #MAGA Twitter has been swooning at the news that the Supreme Court has “added the Texas Attorney General lawsuit to the docket for today!” This is roughly the same as getting excited because you have been approved for admission to the American Automobile Association. Any filing in proper form is added to the Court’s docket, which is just a list of cases. And the excitement has deepened because the Court has asked the four defendant states to respond by Thursday. Again, this is hardly a reason to break out the Cheerwine—Supreme Court rules provide that a motion like Paxton’s is to be answered by the putative defendants. That doesn’t mean the Court has granted the motion or will hear the case. It is simply one step on the road to accepting—or denying—the Texas motion.

But the purpose of the lawsuit, I suspect, is not to win in the Court at all; it is to fulfill Donald Trump’s wish for “one nice big beautiful lawsuit” asking the Supreme Court, which he regards as his property, to award him a second term. As Republicans in Pennsylvania learned this week, getting a case to the Supreme Court is hard and can be slow—except for one set of cases. Disputes between states fall into the high court’s exclusive “original jurisdiction.” No messing about in trial courts; if a state sues another state, the case begins in the Supreme Court.

That doesn’t mean the Court must hear oral argument and consider this absurd request; over the years, the Court has simply declined to hear “original” cases it considered bogus. It will almost certainly do that in this case.

To begin with, there is no real dispute here. It is hornbook law that to bring a federal suit, the plaintiff (individual, corporation, or state) must have “standing to sue”—meaning, in essence, a genuine injury caused by the defendant that can be remedied by a court order.

I get that the four states have certified electors for a candidate that Ken Paxton doesn’t like. Probably that makes him very, very sad. But what injury is there to the State of Texas? Let’s not futz around here: Texas has no legal interest in which presidential candidate the people of other states select. Texas has one role in the presidential contest: select its own electors, following the Constitution and its own statutes.

After that, the state as a state has no part in the choice of president. And even if it did, where is the legal injury in participating in an election where your candidate loses? That happens all the time, and the answer is to try again in four years. The claim in this case is that the defendant states followed their own procedures for conducting the election and that some of those procedures violated those states’ own laws.

Again, even if true, how is it bothering Texas? There’s no real connection between these alleged state-law violations and the outcome; Texas has cobbled them together with a claim that these same states for some reason allowed massive fraud:

the physical blocking and kicking out of Republican poll challengers; thousands of the same ballots run multiple times through tabulators; mysterious late-night dumps of thousands of ballots at tabulation centers; illegally backdating thousands of ballots; signature verification procedures ignored; more than 173,000 ballots in the Wayne County, MI center that cannot be tied to a registered voter ….  poll workers erupting in cheers as poll challengers are removed from vote counting centers; poll watchers being blocked from entering vote counting centers—despite even having a court order to enter; suitcases full of ballots being pulled out from underneath tables after poll watchers were told to leave.

If these scandalous “facts” sound familiar, they should—they are the same gauzy lies that state and federal courts have uniformly rejected as false and unbelievable.

And finally, consider the relief that Texas has asked for—a Supreme Court order voiding the presidential election in four states. Roughly 18 million Americans voted in those four states. Paxton shows no interest in those voters’ rights; he asks the Supreme Court to brush aside their votes because he didn’t like how their elected state officials read their own state laws.

But does Paxton, or “Texas,” really even object to those legal judgments? Ask yourself this question: if Texas genuinely objected to the changes in voting procedures made in Georgia, Michigan, Pennsylvania, and Wisconsin—if those changes so clearly violated state law and the U.S. Constitution—why did Texas wait until “safe harbor” day to bring a lawsuit? Where was the argus-eyed Paxton when the statutory changes and administrative rules were put in place over the past two years? Why wasn’t a challenge brought immediately after the election? As District Judge Linda Parker wrote in a decision rendered Monday in a Michigan case, “While Plaintiffs delayed, the ballots were cast; the votes were counted; and the results were certified.”

Paxton was waiting, waiting first to see whether Trump would win the election—and, after that, waiting until he thought he could prevent the certification of the electors on “safe harbor day.”

Lawyers signed their names to pleadings alleging these “facts” in the original cases; that raised eyebrows, Lawyers for Texas re-allege them now after they have been repeatedly shown to be bogus. That should do more than that.

Federal Rule of Civil Procedure 11 provides that an attorney’s signature on a pleading represents to the court that the material in it is supported by good-faith legal arguments and genuine evidence—and that it is not being “presented for any improper purpose”—including “unnecessary delay.” Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not “make a false statement of material fact or law to a tribunal,” nor “offer or use evidence that the lawyer knows to be false.”

Paxton and the other signatories—Brent Webster of the AG’s office and “special counsel” Lawrence Joseph—have flagrantly violated these rules. There is no proper purpose for this filing other than to prevent the electoral process from functioning. There is no serious legal claim to support the suit. There is no evidentiary support, or prospect of same, for their “factual” claims.

Ken Paxton has made a mockery of federal and Texas rules. And for what? He knows he will not win Trump a second term. What he will do is (in the style of low-level criminals around the world) please the big boss by trying to get him what he wants. Perhaps he hopes this will gain him popularity among the Trump base.  But whatever selfish benefit he gains, he will accomplish nothing good. He will have done two horrible things. First, he will require the Court either to be complicit in stealing an election (it won’t) or to reject the complaint (thereby incurring the assault on its credibility that Trump mounts every time it has rejected his legal claims, and further damaging the Court’s credibility).

And, second, he will strengthen the belief among some Americans—God knows how many at this point—that the election is invalid, and the American republic has no claim on their allegiance.

Monetary sanctions? Disbarment? Hardly enough. I can’t quite figure out the right charge to bring against a public official who seeks to prostitute the federal courts in order to destroy the nation. But by God, whatever we call it, prison seems a minor penalty for that offense.

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.