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Eckhardt: Paxton impeachment trial rules ‘fall short of fair trial procedures’

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(The Center Square) – Prior to the Texas Senate approving rules governing the upcoming impeachment trial of Attorney General Ken Paxton, former Tarrant County judge and state Sen. Sarah Eckhardt, D-Austin, issued a statement explaining why she voted against them.

The Senate passed the rules on Wednesday by a vote of 28-3. The rules were established by a special committee appointed by Lt. Gov. Dan Patrick, received bipartisan support, underwent weeks of input and two days of debate that delayed the announcement of them multiple times.

“Faced with this historic moment, the Senate has a constitutional obligation to ensure that Attorney General Warren Kenneth Paxton receives a fair and impartial trial on the twenty articles of impeachment that were proffered by the Texas House of Representatives,” Eckhardt said. “The stated goal of the Special Committee, indeed the Senate as a whole, has been to follow historic precedent as much as possible, deviating only when necessary to put the rules in a modern context or address circumstances unique to this specific case.

“While I have deep respect for the hard work of the Special Committee and the challenges faced in crafting rules that establish a fair process for these proceedings,” she said she voted no after reviewing the rules on impeachment for six prior trials.

She also sent three letters of concern to members of the Special Committee, and the full Senate “received an exhaustive briefing from the Special Committee on their initial draft and the challenges they faced.” Despite all of the “valiant efforts” of her colleagues, she said the rules “fall short of fair trial procedures and deviates significantly from historic precedent.”

“The Rules are unprecedented in their presumption for opacity and closed deliberation,” she said. They are also “unprecedented in creating an intentionally unlevel playing field for the prosecution as compared to the defense,” and “in allowing for the dismissal of an Article of Impeachment by a simple majority vote.”

She also said the rules “Vest in the Lt. Governor near total control over the proceedings,” unlike the other impeachment rules she’s read. They also allow the lieutenant governor to have his “own legal counsel on the dais that does not represent or answer to the Senate,” and receive advice from the Special Committee whose recommendations won’t be made part of the public record.

“Individual senators may speak with the Lt. Governor concerning pending rulings but cannot challenge, debate or comment publicly on his decision,” she said. As a result, the senators, she said, “have allowed themselves to be reduced from a tribunal (both judge and jury) to a largely powerless and silent jury in a trial controlled by the Lt. Governor.”

Among other aspects of the rules she took issue with “is the unprecedented ability of the defense to win a dismissal of an Article of Impeachment by a simple majority vote” instead of a two-thirds majority vote.

The rules prohibit senators from making public comments about the proceedings, which is why she included a statement for the record prior to the vote.

The rules require Paxton to enter a plea of guilty or not guilty to each of the 20 articles of impeachment levied against him. However, unlike the House, which voted to pass all articles in one vote, the Senate will vote on each article of impeachment separately, one at a time.

The rules require House managers prosecuting the case to prove each article of impeachment beyond a reasonable doubt and senators are required to dismiss each article by a simple majority vote without “debate or comment.”

Several rules govern witness procedure, including requiring witnesses to appear in person and answer questions, which must not violate the Texas Rules of Evidence. They also govern pretrial motions and procedural questions and establish a timeline for deadlines.

Rule 17 states the Senate “will not tolerate unnecessary delays, outbursts, or side-bar remarks. … Prolonged, repetitive or unnecessary questioning” is prohibited and procedures must “avoid wasting time” and “protect witnesses from harassment or undue embarrassment.”

Rule 28 governs the voting process, whereby members submit a written vote. “If no article of impeachment is sustained, a judgment of acquittal is entered.”

Rule 30 states, “If any article of impeachment is sustained,” House managers are “to extend the judgment to include disqualification from holding any office” in Texas. After hearing Paxton’s defense, each senator must stand and vote “yea or nay,” to remove him from office and prevent him from holding office in the future.

The rule states that final judgment of acquittal or conviction for each of the 20 articles of impeachment “shall be adopted only if approved by a majority of the members of the court present.”

Rule 31 specifically addresses Paxton’s wife, state Sen. Angela Paxton, R-McKinney, clarifying that she’s allowed to attend the trial but is prohibited from participating or voting in it. As a spouse to the accused party, she “shall not be eligible to vote on any matter, motion, or question, or participate in closed sessions or deliberations.”

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