Should Ken Paxton Have Been Compelled to Testify at his own Impeachment Trial?

The impeachment trial of Texas Attorney General Ken Paxton began in the Texas Senate yesterday with a peculiar ruling by Texas Lieutenant Governor Dan Patrick, who presides and apparently has unreviewable authority to rule on procedural issues. The House managers had sought to compel Paxton to testify. Paxton's attorneys filed a motion objecting that such compulsion was impermissible. Lt. Gov. Patrick agreed. Here's a summary and some quotations from his ruling:

Patrick said Tuesday that the rules adopted by the Senate apply many of the same rules reserved for criminal cases, including the requirement that Paxton plead guilty or not guilty, and House impeachment managers are required to prove their case beyond a reasonable doubt, a standard also used in criminal trials.

"The House managers have repeatedly compared actions of the House of Representatives to a grand jury as they prefer the articles of impeachment," Patrick said as he granted the motion. "Grand juries are utilized only in criminal cases."

Therefore, Paxton cannot be compelled to testify as a defendant in at his impeachment trial, Patrick concluded.

With due respect--and recognizing that I'm not an expert in Texas law--I think that's pretty obviously wrong. Art. XV, Sec. 4 of the Texas Constitution parallels the U.S. Constitution in providing that conviction on charges of impeachment is not a criminal penalty. It states:

Judgement in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State. A Party convicted on impeachment shall also be subject to indictment, trial and punishment according to law.

In other words, just like at the federal level, conviction on impeachment charges by the Texas Senate is not a criminal conviction. Are the loss of office, ineligibility for future office, and the shame of impeachment conviction serious? Sure. But judgment in a civil case can result in equally serious consequences. And yet there is no privilege against compelled testimony in civil cases.

True, as Lieutenant Governor Patrick observed, the Texas Senate has adopted rules that give an impeachment defendant many of the protections that are available to a defendant in a criminal trial. However, it wasn't obligated to do so, because the stakes--while high--are not as high as those that are generally thought to justify a playing field that favors the defendant in a genuine criminal case: namely, the possibility of imprisonment or death as a penalty. The fact that the Senate chose to give Paxton some additional protections beyond those to which he was constitutionally entitled did not obligate it to give him all of the protections a defendant in a criminal case typically enjoys.

Had Patrick ruled correctly, Paxton still might have avoided testifying by invoking his Fifth Amendment right against self-incrimination. But if he had done that, the Texas legislature might have compelled him to testify anyway by granting him use and derivative-use immunity for his testimony in any future criminal prosecution. Pursuant to the 1964 SCOTUS ruling in Murphy v. Waterfront Comm'n, that immunity would have been effective in federal court as well as state court. (In United States v. Balsys, the Supreme Court overruled the dicta in Murphy that applied to foreign prosecutions, but the effect of an immunity grant within the United States remains the same.)

However, the apparently erroneous Patrick ruling may prove to be a blessing in disguise. Suppose that (a) Patrick had ruled otherwise; (b) Paxton had invoked his right against self-incrimination; (c) Paxton received use and derivative-use immunity; (d) Paxton testified; and then (e) at some point in the future, federal and/or state prosecutors tried Paxton on various criminal charges. In principle, the Texas Senate impeachment trial would be no impediment to that trial, so long as the prosecution didn't use Paxton's impeachment trial testimony or any evidence derived from that testimony against him. However, as readers may recall from the prosecution of Oliver North, it can be very tricky to establish that no evidence used against a defendant derived from prior immunized testimony. Younger readers might want to think about Bill Cosby.

Reversal of a conviction on the ground that the government could not show that its evidence wasn't in any way tainted by immunized testimony does not mean that the defendant is innocent--although of course North, Cosby, and their respective fans loudly proclaimed exoneration. Which brings us back to Paxton. By granting Paxton a right not to testify without any form of immunity agreement, Patrick has removed one potential obstacle to a future successful prosecution of Paxton. With no Paxton impeachment trial testimony to use or from which to derive evidence, prosecutors in any future case against him have one fewer worry than they might have had if the Patrick ruling had gone against Paxton.