Paxton’s arguments called into question
Texas Attorney General Ken Paxton made two key arguments when defending his decision to hire an outside “prosecutor” to investigate allegations made by a campaign donor, Nate Paul.
First, he said he needed an independent arbiter to investigate Paul’s complaints. Second, he emphasized that he was merely acting on a referral from the local prosecutor, Travis County District Attorney Margaret Moore.
Both arguments were being called into question Wednesday.
Paxton released a contract with this outside investigator showing he is neither independent nor a prose-
cutor. And Moore undermined Paxton’s argument that the case was referred to him by noting that it was Paxton himself who took the complaint to her office, not the other way around.
Paxton has a personal relationship with Paul, an Austin real estate investor who has also given him $25,000 in political contributions.
Texas law supplies a number of ways for an attorney to step away from a case inwhich he has a conflict of interest or could appear to have one — such as when he has a relationship with one of the subjects.
Paxton, the state’s top lawyer, followed none of them, according to a dozen legal experts interviewed by Hearst Newspapers.
Instead, he brought in the outside attorney to take the case.
While a contract released by the attorney general’s office explains how outside counsel Brandon Cammack camet o be hired, it leaves questions unanswered about how the arrangement allows Cammack to be independent of Paxton, who is at the helm of the agency and signed the contract.
“They may very well be allowed to do it,” said Larry McDougal, president of the Texas Bar and a former prosecutor. “I’ve just never actually seen it.… Thirty years of being a lawyer, and I’ve never had that come up.”
Travis DA’s account
Paxton’s potential conflict of interest and his advocacy for Paul are at the heart of a mutiny in the attorney general’s office, where seven of the attorney general’s top aides reported him to law enforcement authorities last week, accusing him of accepting bribes and misusing his public office.
Paul, a once high-flying businessman whose offices were raided by the FBI in August 2019, had complaints about the state and federal authorities investigating him.
The FBI, Department of Justice, and Texas Department of Public Safety were among the agencies that Cammack was investigating, according to a statement Paxton released on Wednesday.
Paxton has denied wrongdoing and defended his choice of Cammack.
“Despite the effort by rogue employees and their false allegations, I will continue to seek justice in Texas,” Paxton said.
Paxton hired Cammack to look into the matter on on Sept. 3 and paid him $300 an hour as “outside counsel” to the attorney general’s office, records show. Cammack began to issue subpoenas to parties whom a senior AG official, speaking on the condition of anonymity, described as adversaries of Paul’s.
It was Paxton’s aides who put a stop to the subpoenas.
They filed a motion to quash them lastweek, arguing that Cammack had no authority to represent the state. The judge agreed with them and quashed the subpoenas. It is unclear, however, whether the judge was presented with the employment contract.
The Dallas Morning News quoted Cammack on Tuesday saying he continues to pursue the case and plans to issue new subpoenas.
Cammack did not respond to requests for comment from Hearst Newspapers.
“Because employees of the Texas Attorney General impeded the investigation, and because the Attorney General knew Nate Paul, the Attorney General decided to hire an outside independent counsel to investigate,” Paxton’s office said in a news release Wednesday.
Travis DA Moore said it was Paxton himself who first brought the matter to her attention — not the other way around. And she said he sought a meeting to discuss Paul’s complaints against state and federal authorities — and brought Paul and his defense attorney, Michael Wynne, along with him.
“It was a personal overture to my office fromthe attorney general,” Moore said. “Paxton asked us to listen to what this guy had to say.”
During the early May meeting, Moore said representatives of her office explained how complaints are filed, and then Paul followed up by filing a formal complaint — called a Request to Investigate, or RTI — with her office.
Because it involved state and federal agencies who might normally investigate such allegations, she referred the matter to Paxton and he took it from there, she said, adding it was not an unusual procedure given the nature of the allegations and who they were against.
Five years from law school
Some lawyers interviewed said Paxton could also have declined the case or referred it to another law enforcement agency. All said it’s unclear what part of the law Paxton leaned on when bringing on Cammack.
Paxton’s office has described Cammack as “outside independent counsel,” but in at least one subpoena, obtained by Hearst Newspapers, he is called a “special prosecutor.”
“I was very surprised to hear that hewas appointed as a special prosecutor only because I, candidly, don’t know that the attorney general’s office has the authority to do so,” said Chris Downey, a Houston-based criminal defense attorney who has been an attorney pro tem three times before. “I think that’s a point of concern and potential exposure.”
The contract released Wednesday by Paxton’s office shows that Cammack was hired to investigate but not prosecute. That differentiation could mean legal consequences for Cammack if a court later finds that hewas acting without authority.
In July 2020, the 5th U.S. Circuit Court of Appeals ruled that prosecutors aren’t shielded with immunity from lawsuits when they are performing investigative functions.
Attorneys interviewed also raised questions about the choice of Cammack, who graduated from the University of Houston law school in May 2015, was licensed in November of that year and has been in private practice for about five years. He’s also the chair-elect of the Houston Bar Association.
“Normally, when you do bring on someone as a special prosecutor, you do so because you’re trying to tap into that person’s unique skill set,” Downey said. “I would be surprised given that he’s been a lawyer for five years that he has a defined skillset that they couldn’t find within the attorney general’s office.”