An emboldened Ken Paxton returns to a battered attorney general’s office
Sept. 18, 2023
"An emboldened Ken Paxton returns to a battered attorney general’s office" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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When Ken Paxton became attorney general of Texas, he inherited a well-oiled conservative legal war machine that served as the linchpin of a slow but effective conservative takeover of the judicial system.
He returns now, impeached but not removed, to run a much different operation. Many of the highest profile attorneys have fled the office, some into the arms of the House impeachment managers. The state has had a dismal record the past few years in front of a conservative Supreme Court, and embarrassing missteps in significant human trafficking cases. And the impeachment proceedings, while saving Paxton’s job, did a number on the agency’s reputation, morale and relationships with external partners.
After he was acquitted, Paxton said in a statement that his full focus would now be on challenging the Biden administration in court: “Buckle up because your lawless policies will not go unchallenged. We will not allow you to shred the constitution and infringe on the rights of Texans. You will be held accountable.”
But Paxton, newly emboldened and never one to shy from conflict, will need to first find a way to steady the ship if he plans to continue to wage the ideological wars that have animated Texas attorneys general for the past 25 years.
Evolution of an office
The first time Ken Paxton offered Jeff Mateer a job, Mateer said no.
Mateer was general counsel at First Liberty Institute, a conservative Christian religious liberty law firm in Plano, where he was working to get prayer back into public schools, permit religious businesses to refuse service to LGBTQ+ people and restrict public funding of contraception.
“Quite frankly, I had my dream job,” Mateer testified last week. “But he asked me to pray about it. And my wife and I prayed about it, and we felt like we were supposed to come down here.”
It wasn’t just Mateer. In the early years of Paxton’s tenure, conservative lawyers left plum positions working for right-wing law firms and politicians to come to work at the Texas Attorney General’s office.
The office was known as “a beacon for the conservative legal movement,” said Ryan Bangert, who joined the office in 2019 after working for Josh Hawley in Missouri.
“I … believed Texas was leading the way in representing the interests of the conservative legal movement here in the U.S.,” he said on the stand.
Three decades ago, state attorney general offices were, by and large, bureaucratic workhorses that chased down child support and defended state agencies when they got sued. Occasionally, they’d team up with other states on consumer protection issues or environmental protection.
But in the late 1990s, state attorneys general began to step into their power, taking a more proactive role in federal litigation. In Texas, this coincided with the Republican takeover of all statewide elected offices and, eventually, total domination in the Legislature.
On the left, this was led by states like California, Massachusetts, Washington and New York. But on the right, no state did more than Texas.
Beginning under now-Sen. John Cornyn, and accelerating significantly under his successor, now-Gov. Greg Abbott, the Texas Office of the Attorney General took an ambitious, aggressive stance in court, barraging the federal government with increasingly partisan lawsuits.
Texas became even more central to the growing conservative legal movement after the U.S. Supreme Court ruled in 2007 that states have “special solicitude” to file lawsuits. Compared to other plaintiffs, Texas would have an easier time convincing judges to take their cases. The state began pairing up more frequently with conservative Christian legal organizations like First Liberty.
By the time Paxton took over in 2015, Texas had made a name for itself as the most influential state attorney general’s office for the conservative movement. It had also become a training ground for conservative attorneys looking to get courtroom experience.
The office helped launch the careers of now-Sen. Ted Cruz, conservative firebrand Jonathan Mitchell and almost a dozen lawyers who went on to be appointed to the federal bench under President Donald Trump.
“Getting a job in the AG’s office, or the solicitor general's office, in Texas, certainly opens up a lot of doors not just for positions in politics, but also for judgeships down the road,” said Daniel Bennett, a political scientist who studies the Christian legal movement at John Brown University in Arkansas. “They might see that as a way to get more of their own, long term, on the bench.”
Mateer, Bangert and others flocked to Texas for a chance to help craft this nationally influential legal strategy. It was a mutually beneficial arrangement for Paxton.
“When he first started, we didn't really know what he was going to do,” said Josh Blackman, a South Texas College of Law professor who is active in the Federalist Society and friends with many of the early Paxton hires. “He was a state senator, won a contested primary, there was the security fraud stuff. But by bringing in people like Mateer and others, it was like, ‘Ok, he's surrounding himself with the right people.’”
But eventually, Paxton’s reputation began to catch up to him — even in the eyes of those politically aligned, hand-picked deputies.
Office turnover
In 2020, eight senior officials with the Texas Office of the Attorney General went to the FBI to report allegations of corruption by Paxton. Among those who reported were Mateer, Bangert, Blake Brickman, a former chief of staff to conservative Kentucky governor Matt Bevin, and David Maxwell, a longtime Texas Ranger with a sterling law enforcement reputation.
“We were protecting the interests of the state and ultimately, I believe, protecting the interests of the attorney general and, in my view, signing our professional death warrant,” Bangert testified. “We understood the gravity of that act.”
Everyone who reported to the FBI either resigned or was fired, setting off a series of events culminating with the impeachment trial and Paxton’s acquittal by the senators.
Inside the agency, this set off another kind of chaos. In one fell swoop, the agency had lost Paxton’s first assistant, his deputy first assistant and the deputy attorneys general overseeing the divisions of policy, administration, civil litigation, criminal investigations and legal counsel.
Mateer, who resigned and returned to leading First Liberty, was replaced by Brent Webster, a former assistant district attorney in Williamson County. Webster has been accused by the whistleblowers of leading the retaliation campaign against them. Another top Paxton aide, Drew Wicker, testified last week that Webster discouraged him from speaking to the FBI about the allegations against Paxton. Wicker has since left the agency, too.
Webster also supported Paxton’s long-shot federal lawsuit seeking to overturn the 2020 election results in four battleground states that went for Biden, which other conservative attorneys, inside the agency and out, cautioned him against filing.
The State Bar of Texas filed professional misconduct lawsuits against Paxton and Webster, accusing them of being “dishonest” for misrepresenting allegations of voting improprieties in their Supreme Court petition.
The Supreme Court swiftly rejected Texas’ petition. Notably, Kyle Hawkins, then the solicitor general, did not put his name on the filing. A few weeks later, Hawkins resigned and was replaced by Judd Stone, who would later take a leave of absence to defend Paxton in his impeachment hearing.
[Texas AG Ken Paxton’s habit of refusing to defend state agencies cost taxpayers]
This degree of high-level turnover created ripple effects at all levels of the agency. Top agency spots were filled by campaign donors, some of whom left quickly in disgrace, and the office quietly dropped several human trafficking cases after losing track of a key victim, the Associated Press reported. Paxton also made a habit of refusing to represent state agencies when they faced lawsuits, a key aspect of his office’s work.
When it came to the all-important federal litigation against the Biden administration, the agency continued to push a relentless pace. But under Webster, the agency focused on filing “minimally viable lawsuits,” as he and Aaron Reitz, deputy attorney general for legal strategy, said on ‘Moment of Truth,’ a conservative podcast in 2021.
“You can amend it and make it more perfect later,” Reitz said. “But you can’t let the perfect be the enemy of the good when it comes to the speed here.”
Texas was “running the same play in each of these cases every single time,” Reitz said. “The Biden administration is messing around with detention standards, or public health regulations, or migrant protection protocols. … Once you get through that facts section, the legal arguments sections are literally the same every single time.”
This strategy worked in front of hand-picked, Trump-appointed judges like Matthew Kacsmaryk, Mateer’s former colleague at First Liberty, and on the newly super-conservative 5th U.S. Circuit Court of Appeals. But over the last few years, Texas has lost several high-profile cases at the U.S. Supreme Court. This past term, Texas went 0-4 in cases in which it was a party.
In rejecting one of Texas’ immigration challenges, the court seemed to repudiate Texas’ whole strategy. Justice Brett M. Kavanaugh called it “an extraordinarily unusual lawsuit,” and Justice Neil Gorsuch chastised Texas for attempting “government by lawsuit.”
After months of interim leaders, and years of tumult, the Texas attorney general is returning to the Texas Office of the Attorney General, alongside several senior attorneys who took leaves of absence to defend him.
Paxton has said his focus will be national — continuing to challenge the Biden administration in federal court and, it’s safe to assume, trying to rebuild the office’s stature in the eyes of the national conservative legal movement.
But inside Texas, there’s a war being waged, in his name, for the future of the Republican Party. Whether he’ll be able to resist entering the fray, and dragging the Office of the Attorney General with him, remains to be seen.
He returns to the office Monday. Webster, for one, is glad to have his boss back.
“Congratulations Attorney General Paxton on his resounding win in the unjust and unfounded impeachment brought against him!” he wrote in an all-staff email obtained by the Houston Chronicle. “I ask that all of you join me in welcoming back our leader, the best Attorney General in the United States.”
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/09/18/paxton-impeachment-attorney-general/.
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