The Texas Context for Attorney General Ken Paxton’s Role in Donald Trump’s Circus

[Late note: Shortly after this was posted, President Donald Trump and 17 other states filed an amicus motion supporting the Texas suit - see Todd Gillman's coverage in The Dallas Morning News.]

Attorney General Ken Paxton’s motion before the U.S. Supreme Court to dismiss the election results in Pennsylvania, Michigan, Wisconsin, and Georgia has put Paxton in the center ring of Donald Trump’s never ending circus of efforts to delegitimize the 2020 presidential election in the eyes of his followers. Trump’s motives in his seemingly Quixotic effort to undo the election as always are the subject of intense speculation, no doubt by design. As the national media reward both Trump and Paxton with a flurry of attention, however derisive, over Paxton’s legally dubious and baldly political effort before the court, it’s worth looking at the Texas context of Paxton's turn in the spotlight.

Paxton is no stranger to headlines, but most of the attention he’s gotten in recent months has been negative, giving him plenty of incentive to put on a good performance for the Trump crowd in Texas while he has their attention. Paxton is currently embroiled in multiple scandals, though he has thus far not been found guilty in any courts of law. After taking office in 2015, Paxton was indicted on charges of felony securities fraud, in which he was “accused of persuading investors to buy stock in a company without revealing that he was making a commission, and of failing to register with the State Securities Board,” per Emma Platoff’s recap in The Texas Tribune. That case has dragged on in disputes and legal maneuvering over issues including prosecutors’ pay and venue, and has yet to be tried. 

More recently, top aides to Paxton accused him of bribery and abuse of office in connection to what appear to be efforts to use his office to help a political donor on a handful of separate occasions. The AP and other outlets have reported that these claims have triggered an investigation by the FBI. In the meantime, according to Tribune coverage, of the eight employees of the AG’s office who accused Paxton of wrongdoing, five have been fired (the last firing became public the afternoon before Thanksgiving) and three have resigned. Four of the former employees have filed a whistleblower lawsuit under the state’s whistleblower statute. As reporters and lawyers dug into Paxton’s case and the legal actions by the political donor, it was also revealed that Paxton had admitted to campaign staff that he had conducted a sexual affair with a female staff member in the Texas senate, who later appears to have been employed by the donor. Paxton’s wife, State Senator Angela Paxton, now serves in the same body.

Paxton’s latest round of legal troubles arrived as the Attorney General was settling back in after a reelection campaign that was close by any standard, but especially close for a Texas Republican, even in such an unusual election year. Paxton beat Democratic challenger Justin Nelson with only a slight majority of voters (50.57%) and by a mere 3.56 points, better than Ted Cruz’s much discussed 2.56 margin over Beto O’Rourke, but worse than Lt. Governor Patrick’s 4.81 point margin, and significantly closer than Governor Abbott’s comparative trouncing of Lupe Valdez by 13.3 points. Despite his challenger’s perpetual (and at times clever) attempts to raise the salience of Paxton’s indictment, the incumbent was aided by the fact that his indictment didn’t much penetrate the public consciousness. Asked in October 2016 how much they had heard in the news about the legal problems of the Attorney General, only 15% of voters said that they had heard “a lot”, with 55% saying that they had heard “not very much” or “nothing at all.” Republicans were less likely than Democrats to say that they had heard “a lot” (10% to 21%).

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A lot15%
Not very much24%
Nothing at all31%

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A lot21%16%10%
Not very much21%24%27%
Nothing at all28%37%30%

So as he is besieged by new charges of corruption and other bad behavior, maintaining his support among the substantially overlapping constituencies of Texas GOP primary voters and Trump supporters is critical to Paxton’s political future. Paxton seems determined to soldier on in politics, though among the political class in Texas, rumors have swirled of both primary challenges and Democrats eager to test him in 2022, even with the Democrats’ disappointment in their 2020 performance and the likelihood of a tough midterm cycle with a Democrat in the White House. Given these circumstances, redirecting voters’ attention away from his mounting pile of scandals and toward his dedication to Donald Trump and his narratives about rigged elections and anti-Trump conspiracies is a good change of subject for Paxton.

Trump defeated Biden by just under six percentage points in 2020, and remains very popular among GOP partisans and conservatives. The affection is likely to be durable given Trump’s clear intent to consolidate this group in his favor, whatever that means to the soon-to-be ex-president. Within the broad support evident in his job approval trend over time, support remained intense on the eve of the election, with 90% of Republicans approving of the president’s job performance. Among “strong Republicans”, 76% approved strongly of the president’s job performance (with another 21% merely somewhat approving), while 85% saw their vote as an affirmative endorsement of Trump, as opposed to a rejection of Biden.

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PollApproveDisapproveNeither/Don't know
February 201781%10%8%
June 201780%13%7%
October 201778%15%7%
February 201883%11%5%
June 201887%7%6%
October 201888%7%4%
February 201988%8%5%
June 201988%8%5%
October 201988%8%5%
February 202087%9%4%
April 202090%7%3%
June 202086%8%6%
October 202090%8%2%

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CategoryLean RepublicanNot very strong RepublicanStrong Republican
Approve strongly54%36%76%
Approve somewhat26%48%21%
Neither approve nor disapprove2%6%1%
Disapprove somewhat7%2%0%
Disapprove strongly11%8%2%

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CategoryLean RepublicanNot very strong RepublicanStrong Republican
I want Donald Trump to be elected president79%66%85%
I don't want Joe Biden to be elected president21%34%15%

Paxton is also able to tap into the same suspicions about the 2020 elections that Trump is stoking.  Before the election, a majority of Texas Republicans (81%) said that votes being counted inaccurately would be an “extremely serious” or “somewhat serious” problem in the 2020 election, 81% said the same of people voting who are not eligible, while 80% said the same of people voting multiple times. Most telling for the likely reception to Paxton joining the president in trying to reverse the election results, asked in the same pre-election poll whether they would personally trust the results, regardless of who wins, 61% of Republicans refused to say that they would. (Democratic willingness to pre-commit to the results were also troublingly low, though they are presumably less skeptical now given the outcome.)

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Don't know/Unsure44%52%46%

Paxton’s turn to the U.S. Supreme Court, however unique the circumstances of the 2020 election, comes out of a familiar playbook. Paxton, like his predecessor in the AG’s office, current Governor Greg Abbott, has made a point of using the federal courts to burnish his conservative credentials. For Abbott, it was suing the Obama administration. While the Trump presidency changed the terrain, Paxton has led the charge on filing federal lawsuits aimed at  undoing the Affordable Care Act and ending DACA, at times aiding the Trump administration in undoing legacy policies from the Obama era. Paxton has also followed Abbott in vigorously publicizing the meager array of cases of actual election fraud that have arisen during his term. All of these causes are conservative crowd pleasers.

While Texas lawsuit may be widely viewed as somewhere between pandering to the ringmaster to just another clown getting out of a crowded car, Paxton’s decision to put on a show for the Supreme Court is likely to play well with Republican partisans at home, and add to his bona fides in a Texas Republican Party likely to embrace Donald Trump’s claim that he was robbed. Not surprisingly, Paxton’s troubled position at home and what are widely regarded as the weak legal foundations of Paxton’s filing with the Supreme Court have sent his critics looking for ulterior motives. Michigan’s Democratic attorney general Dana Nessel was scathing in her dismissal on CNN this week, noting the FBI investigation of Paxton and concluding, “I see this more than anything as an effort to ingratiate himself to a man who could potentially provide him with a presidential pardon.” Pressed by anchor Jim Sciutto to present evidence of this motivation, Nessel had to dumure. While a pardon for the federal charges would be a bonus for Paxton, the best explanations for Paxton’s motives here are both more familiar and more mundane. However unsuccessful, putting on one last show for Donald Trump will play well with a valuable audience, and distract from the numerous sideshows that might otherwise result in Paxton getting the hook.