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The joke goes like this:
Jim Mattox, the pugnacious Texas attorney general back in the 1980s when Democrats still ruled the state, was walking down Congress Avenue in Austin when he saw two men engaged in a vicious fistfight on the other side of the street.
Without hesitating, the state’s top lawyer darted through traffic, rushed up to the combatants and asked “Is this a private fight, or can anyone join in?”
A taste for bare knuckle political combat is not a new development in the history of the attorney general’s office. (Mattox was indicted, tried and acquitted on bribery charges during his first term. His successor, Democrat Dan Morales, went to prison on corruption charges after his two terms.)
But until recently, the office’s holders generally kept their fights confined to Texas turf.
The bulk of the job was running what is effectively the state’s largest law firm, overseeing hundreds of attorneys and thousands of employees scattered across Texas performing the quotidian work of enforcing child support orders and environmental regulations, protecting consumers and interpreting open records laws.
That began to change after Greg Abbott was elected to the office in 2002. In a line that always played well with his GOP base, Abbott boiled the job down to simple terms: go to work, sue then-President Barack Obama, and go home. Under Abbott, the state sued the Obama administration nearly three dozen times challenging Obamacare, environmental regulations and voting rights.
In 2015, Ken Paxton took the torch and continued the legal crusade against Democratic leadership. But Paxton brought an enhanced ideological ferocity to his legal attacks.
Paxton, a former state representative and state senator, has used the office to wage political war against Democrats at the local and federal level. He has become a leader among conservatives across the country as those on the left and right increasingly subscribe to the idea that attorneys general should be waging battle over national public policy rather than just calling balls and strikes on the law in their states.
In Paxton’s case, some question whether the ideological crusades have hampered the office’s more fundamental, but crucial, missions. But they may also have helped him stay in voters’ good graces in this conservative state, even as his legal and ethical troubles have piled up.
The attorney general is elected to represent the public’s interest and provide legal guidance for state agencies. They act as public advocates to force parents to pay child support, regulate utilities and handle serious crimes. They operate victims compensation programs and enforce federal and state environmental laws.
For decades, attorneys general kept politics somewhat to the side and often worked together on bipartisan actions.
“There was that sort of pride to say, well, Congress is really dysfunctional and polarized but here on the AG level, we really can work across party lines and, and do all this,” said Paul Nolette, a political scientist at Marquette University who tracks the polarization of relationships between states and the federal government.
But Paxton never adopted that perspective on the job.
Media reports suggest that ever since top lawyers in the office blew the whistle on Paxton’s alleged illegal behavior that led to his possible impeachment, the office has struggled to fill positions.
Last year, an Associated Press investigation found a pattern of dysfunction within Paxton’s office that led to mishandling of human trafficking and child sexual assault cases.
The agency dropped human trafficking and child sexual assault cases out of Gatesville because the state lost track of one of the victims, the AP reported. Former employees said staff turnover was a factor in the cases’ collapse.
The investigation also found that the number of assistant attorneys general in the criminal prosecutions division was down more than 25% from two years prior. The division handling white-collar crime was cut by more than half and merged into another division.
They noted other signs of dysfunction. A Paxton supporter hired as an agency advisor was secretly fired after less than two months on the job because he showed child pornography in a meeting in what can only be described as a failed attempt to make a point, the AP reported.
Around that time, the AP reported that when one assistant attorney general left he said in his resignation letter that newer executives were “directing prosecutors to prioritize political considerations.” The wire service also reported that the internal environment had “grown hostile” to LGBTQ employees after Paxton issued a legal opinion that sparked child abuse investigations into parents of transgender youth in the state.
Losing sight of their day job is one of the risks for centering an attorney general’s office around ideology, said Nolette.
“All the staff have to be on board, even the long-term staff, whereas before, it used to be like, they kind of prided themselves in being non-partisan at that level,” he said. “When you’re this ideologically focused everything potentially is an ideological battle.”
Undeterred by accusations of securities fraud, misuse of his political office and bribery, Paxton relentlessly pursued first a far-right agenda. He tried unsuccessfully to get the U.S. Supreme Court to overturn the 2020 election in four states in favor of his political ally Donald Trump. Since President Joe Biden was inaugurated, Paxton has sued the Biden administration around 50 times, he said Friday, a lawsuit every two weeks.
In Texas, Paxton has also led the fight against the medical field for providing gender-affirming care to trans youth and poured resources into voting fraud investigations that have mostly come up empty.
Now, as a conservative Texas House considers impeaching him over years of alleged misconduct, Paxton is taking a page from Trump, railing against the impeachment as “political theater” that he calls a distraction from the reason voters continue to put him back in office: to go after the Democrats in the federal government.
“Their plot imperials critical litigation my office has brought against the Biden administration and the federal government’s attacks on our constitutional rights and the rule of law,” Paxton said in a public statement in front of the press Friday. “There is no other state in their country with so much influence over the fate of our nation and this is solely because of the relentless challenges I bring against Biden’s unconstitutional policy agenda.”
While Paxton did not invent the playbook that many attorneys general across the country are using to push political agendas, he has further emphasized the political aspects of the job, legal and political experts say, publicly prioritizing ideological battles rather than the more mundane but important units within the attorney general’s office, like ensuring parents pay child support, Texas consumers are protected from malfeasance and state agencies follow public records laws.
“Before, it was a lot of, ‘Obama’s policies are not good for Texas,’ and that’s why we’re challenging this,” said Nolette. “This is more just outright, ‘Biden is siding with the woke leftists.’ … The partisan rhetoric that Paxton brings to the table is much sharper and much more ideological.”
Six months into his tenure, the U.S. Supreme Court gave him a political opening when it ruled gay marriage was legal in 2015.
In response, Paxton issued a written opinion that county clerks who have religious objections to same-sex marriages did not have to issue such marriage licenses, offering up pro bono lawyers to defend clerks if they were sued. Paxton had no standing to go against federal law, but he was willing to do so – which prompted lawyers to file a complaint against him to the state bar, which was later rejected.
The following year, Obama issued guidance to school districts that transgender students had the right to use the bathroom that matched their gender identity. Paxton not only got a group of states together to sue, his office developed a policy that would counter the Obama administration’s guidance and shopped it around to school districts to adopt, therefore providing the plaintiff necessary to file the lawsuit.
A conservative judge in the Wichita Falls area – where Paxton filed the lawsuit – granted the injunction and halted the policy.
When a Republican entered the Oval Office in 2017, Paxton continued to hammer away against Obama-era policies, targeting the Deferred Action for Childhood Arrivals immigration program and Obamacare in federal court.
At the start of his second term, Paxton asked the state Legislature in 2019 to increase funding for his office to expand jurisdiction over abortion-related crimes, which were the purview of local officials, as well as extra funding for human trafficking and election fraud cases.
“It’s sort of taking the attorney general’s office to a place it’s really never been before,” state Rep. Trey Martinez Fischer, D-San Antonio, said at the time. “I’ve always known the office to be the people’s lawyer — the law firm for the state of Texas that represents our public interests. It almost seems now that we have an attorney general who’s trying to expand the scope of his agency to actually target and investigate people.”
In 2020, Paxton took an unprecedented step and challenged the 2020 election results in four states in an attempt to get the U.S. Supreme Court to overrule Biden’s victory and secure Trump another term in office. The case was promptly thrown out because Texas did not have standing to bring the suit.
“[The] Supreme Court decision is an important reminder that we are a nation of laws, and though some may bend to the desire of a single individual, the courts will not,” Dana Nessel, Michigan’s Democratic attorney general, said at the time.
The lawsuit went too far for even some Republicans. Former Idaho Attorney General Lawrence Wasden refused to sign onto Paxton’s lawsuit, saying at the time that “the legally correct decision may not be the politically convenient decision.” Wasden was criticized for not taking a more activist role in his position. He lost his seat after 20 years in the 2022 primary to a candidate who said the attorney general’s job is “not just a legal job, it’s a political job.”
But the lawsuit demonstrated just how far Paxton was willing to go for professional gain.
It isn’t just conservative causes, Nolette said, Paxton’s ideological bent has also led him to go after tech companies.
“You see this strange situation where Republicans who traditionally have been pro-business are now just going after woke corporations, social justice warriors, and using a lot of that ideologically charged rhetoric,” Nolette said. “That seems emblematic of the shift, even compared to Abbott.”
Even before the Gov. Abbott has signed legislation that would ban certain gender-affirming care for transgender youth, Paxton opened an investigation into “potentially illegal” practices at an Austin-based hospital after a far-right activist group released a video showing the hospital discussing gender-affirming care for trans youth. Soon after, he launched a second investigation into another hospital.
Nolette said while the hundreds of lawyers in the attorney general’s office might not be assigned to politically related work, Paxton clearly promotes that part of his office over others.
“You don’t see many press releases from Paxton’s office really emphasizing, you know, combating fraud in funeral homes or whatever, those sorts of day to day, state specific things,” he said. “It’s much more nationalized.”
If Paxton is impeached and removed from office, Abbott will appoint a replacement. But as the attorney general position has become a political stepping stone, political experts say there’s no incentive to stop being aggressive against political opponents.
At the most, Nolette said, there might be a chance in tone and rhetoric.
“You’ll still see a lot of Texas suing the federal government,”he said. “That’s not going away anytime soon.”
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