Is all forgiven? Texas public opinion and the “prior term doctrine” in Ken Paxton's impeachment trial

Among the many points of contention between suspended Attorney General Ken Paxton and the House managers prosecuting his impeachment trial in the hundreds of pages of motions filed so far is the “prior term” doctrine, which holds that elected officials cannot be removed from office by an impeachment process for offenses committed prior to being elected to office if the public was aware of the acts that constitute the grounds for impeachment. The concept is also sometimes called the forgiveness doctrine, derived from the idea that the informed electorate envisioned in this scenario have implicitly forgiven the official by reelecting them.

The “prior-term doctrine” is one of the issues at the center of Paxton’s early, sweeping motion to dismiss all but one of the impeachment charges leveled against him by the Texas House, and received a forceful rebuttal from the House managers in subsequent motion in response.

The conflict over Paxton’s invocation of the prior term doctrine and its incorporation of the notion of the granting of forgiveness by an informed electorate directly invites attention to what public opinion polling suggests about public awareness of the now-suspended Attorney General’s various legal and ethical problems.

Broadly speaking, public opinion inevitably informs the intersection of legal and political processes at work in Paxton's impeachment and trial. As one legal expert recently told The Dallas Morning News, Texas' impeachment process is “a hybrid” that is “part politics, part law.” The motions, taken as a whole, illustrate that Paxton seeks to rely on the latter while the House managers argue forcefully, repeatedly, and persuasively that it is more the former – a predominantly political process distinct from criminal and civil law. The House managers’ arguments are extensive and draw on sources both familiar (such as the Federalist Papers) and comparatively obscure (including Texas case law).

The depth of those arguments notwithstanding, the inherently political nature of the ongoing process – including the implication of public opinion – is facially apparent. Paxton is an elected official who has been impeached by the elected members of the House of Representatives, and is in the early stages of being tried by the elected members of the Texas Senate in a proceeding that will be presided over by a statewide elected official, the Lt. Governor. All of these elected officials are subject to the public opinions of the electorate, and share many of the same voters.

The Paxton legal team’s July 31 motion invokes public opinion even more directly in attempting to dismiss all but one of the impeachment charges against him by posing the specific argument that voters were sufficiently aware of Paxton’s legal and ethical troubles when, as the motion argues, “Texas voters rendered their judgment by reelecting Attorney General Paxton to serve a third consecutive term.” 

Setting aside for the moment the logic and legalisms of both the Paxton legal team’s invocation of the prior-term doctrine and the House managers’ response, public opinion polling suggests that relatively small shares of Texas voters have heard “a lot” about Paxton’s legal problems, including in the run-up to the 2022 election. The data also suggests that the impeachment of the Attorney General likely triggered a small to moderate uptick in attention to his alleged legal and ethical lapses, though the increased attention to Paxton’s impeachment and trial has still left large swathes of the electorate seemingly inattentive to Paxton’s travails.

The University of Texas poll has asked voters four times, including as recently as June of this year, how much they had “heard in the news about the legal problems of Attorney General Ken Paxton,” giving respondents the options of saying “A lot”, “Some”, “Not very much”, or “nothing at all.” Prior to the June 2023 poll, conducted after Paxton’s impeachment by the Texas House, no more than 20% of Texas voters had said they had heard “a lot” about Paxton’s legal issues — increasing to 31% after his impeachment. In fact, nearly half of voters in each poll prior to his impeachment said that they had heard either “not very much” or “nothing at all,” including 55% of voters in October 2016; 44% in April 2022; and 42% in October 2022 on the eve of his most recent election, when only 20% of voters said that they had heard “a lot” and 37% said that they had heard “some.”

Loading chart...
A lot20%
Not very much26%
Nothing at all16%

Democratic voters have been considerably more attentive to Paxton’s legal problems than have independents or Republicans. Given that Paxton’s electoral victories relied on the support of GOP voters, the fact that Democrats were more attentive to Paxton’s legal troubles than Republicans or independents further undermines the notion that voters had rendered informed judgments about Paxton’s conduct when returning him to office. In the October 2022 poll – on the eve of his reelection and prior to his impeachment – only 14% of GOP voters said that they had heard “a lot” about Paxton’s legal problems, with 41% saying that they had heard “some” and 46% saying that they had heard either “not very much” (31%) or “nothing at all” (15%).

Loading chart...
A lot30%12%14%
Not very much21%29%31%
Nothing at all13%27%15%

While Paxton’s impeachment has led to increased attention to his legal problems among all groups, Republican and independent voters remain significantly less attentive to the issue than Democrats. June 2023 polling conducted shortly after his impeachment found nearly half of Texas Democrats (40%) saying that they had heard “a lot” about the legal problems of the state’s AG; but among Republicans (and independents) the share having heard “a lot” only increased to 27%, leaving the plurality (both after Paxton’s reelection AND after his impeachment) saying that they had only heard “some” (47%), “not very much” (18%), or “nothing at all” (9%).

Loading chart...
A lot40%27%27%
Not very much12%23%18%
Nothing at all11%15%9%

Still more problematic for the argument that voters had rendered informed judgments about Paxton’s conduct before reelecting him, the June poll also found that the more a voter had heard about Paxton’s legal problems, all else equal, the more likely they were to say that the Texas House was justified in impeaching him.

Evaluation of Ken Paxton's Impeachment by Texas House by Amount Heard about Paxton's Legal Problems
(June 2023 UT/TXP Polling)
  A lot  Some Not very much Nothing at all
Impeachment justified 74% 52% 29% 10%
Impeachment NOT justified 20% 21% 10% 6%
Don't know 6% 27% 61% 84%

Among voters who said that they hadn’t heard very much about Paxton’s legal problems, 29% thought the House was justified in impeaching him (61% didn’t register an opinion either way, as we should expect). Among voters who said that they had heard “some” about Paxton’s legal problems, 52% thought the House was justified in impeaching him. Among voters who had heard “a lot” about Paxton’s legal problems, 74% said that the House was justified.

As attention increased among both Democratic and independent voters, the share viewing Paxton’s impeachment as justified also increased, from 75% among Democratic voters who had heard “some” to 95% among those who had heard “a lot,” and from 47% among independents who had heard “some” to 64% among those who had heard “a lot.”

At odds with the notion of an informed electorate that decisively returned the current AG to office, the June 2023 poll found opinions split among Republican voters — even among those Republicans who say that they’ve heard the most about the attorney general’s troubles.

Evaluation of Ken Paxton's Impeachment by Texas House Among Republicans by Amount Heard about Paxton's Legal Problems
(June 2023 UT/TXP Polling)
  A lot  Some Not very much Nothing at all
Impeachment justified 42% 34% 22% 4%
Impeachment NOT justified 47% 31% 13% 8%
Don't know 11% 35% 66% 89%

In the immediate aftermath of Paxton’s impeachment by the house, GOP voters who reported hearing “some” about Paxton’s legal problems were slightly more likely to say that the impeachment was justified (34%) than to say it wasn’t (31%). Among those GOP voters who had heard “a lot,” slightly more thought the impeachment was unjustified (47%) than said it was justified (42%).

And even before his most recent election, with attention significantly lower, responses to the Attorney General trial ballot question in October 2022 found 90% of Republican, likely voters saying that they would be voting for Ken Paxton; among those who had heard “a lot” about his legal problems (a minority of all GOP voters), support dropped to 66%.

Poll results prior to widespread knowledge of the impeachment hearings strongly suggest that few Republicans were paying close attention to Paxton’s legal and ethical problems. After the impeachment, and in the face of very public efforts to shape GOP voters’ reactions by Paxton and his allies, some of these Republican voters might have been hearing about Paxton’s legal issues for the first time from sources sympathetic to his plight. Yet even after impeachment in the Texas House and the attendant coverage of his alleged conduct in most statewide media, it would be difficult to argue that GOP voters as a group had rendered a judgment on Paxton’s conduct and found him reelectable based on the available data.

Given that this data suggests both limited awareness of Paxton’s legal issues before and after his election, and the negative impact of increased knowledge on voters’ views, it’s not surprising that the recourse to the awareness and opinions of voters in Paxton’s July 31 motion is couched in legal precedence and not any specific conceptualization of voters’ awareness. This lack of clarity in the use of public opinion aligns with the argumentative strategy of the motion, which in large part hinges on establishing that there was a lot of publicly available information about Paxton’s plight without specifying the content of that information or how much voters knew about it.

  • In the third paragraph of Paxton’s lawyers' July 31 motion to dismiss most of the impeachment articles, they write: “This court has never convicted an impeached official based solely on House allegations that occurred before an elected official's most recent election when they were publicly known at that time.” [emphasis added]
  • Similarly, they write that (emphasis again added), “throughout the 2022 election season...voters were subject to tens of millions of dollars in broadcast advertisements, dozens of newspaper articles, and countless speeches or appearances accusing Attorney General Paxton of the alleged misconduct underlying the Articles of Impeachment.”
  • A few sentences later, they continue, “the Articles allege nothing that Texas voters have not heard from the Attorney General's political opponents for years.” 
  • Then, to sum up, they write that “The alleged acts underlying nineteen of the Articles took place before the Attorney General's most recent election and were highly publicized.” These same phrases recur in other rhetorical flourishes in the document.

Various claims about the state of public opinion that hinge on notions such as “publicly known,” what voters “were subject to,” what voters have “heard,” or what was “highly publicized” struggle to set a threshold for voter awareness that is at best vague and difficult to substantiate, and, at worst, deceptively low for arguing that the preponderance of voters incorporated an informed awareness of the particulars of Paxton’s actions and their legal judgements of them when casting their votes in 2022 (or, for that matter, 2014 or 2018). (And just to level set some reasonable expectations about voters’ awareness writ large, 54% of voters couldn’t identify Dade Phelan from a list of four politicians as the current Speaker of the Texas House in June polling; 70% couldn’t identify Dan Patrick as the presiding officer of the Texas Senate in April.)

 The lack of clarity in the legal conception of a judgment rendered by an informed electorate isn’t surprising in the expected rhetorical slant of a defense filing on behalf of a client – it works, of course, to Paxton’s advantage.

But there is precedent for setting a higher threshold for informed public forgiveness (or indifference) than that implied by Paxton’s lawyers.

An application of the prior-term doctrine by the Texas Court of Civil Appeals, Corpus Christi, in 1979 reversed a district court judge’s dismissal of the state’s efforts to remove the District Attorney of Hidalgo County, one Oscar B. McInnis. The details are complex, but a district court had dismissed serious charges against McInnis (which included perjury and conspiracy to commit murder) based on an interpretation of the prior-term doctrine. The appellate court found that because, for various reasons, there had been no decisive trial results related to the charges against McInnes, the public could potentially only have been aware of “documents [that] contained nothing more than allegations and charges that a crime had been committed.” Thus, “in the absence of any proof available to the voting public at the general election that McInnis had actually committed the acts constituting crimes, as alleged and charged, there was no crime or proven misconduct to forgive.”

Once again, the appropriate application of legal precedents will be up to the lawyers involved, the presiding officer, and the Senator-jurors. McInnes was not a statewide official, and therefore subject to a process statutorily different from the impeachment and trial of a statewide official. (The McInnes tale leads down a deep rabbit hole of politics in the Rio Grande Valley in that era, as detailed by a 1994 Texas Monthly article by Robert Draper, which touches on McInnes’ time in office.) Nonetheless, even if only in conceptual terms, the higher threshold set for what might constitute an informed electorate when it comes to applying the prior-term doctrine contrasts with the comparatively under-elaborated application in the Paxton filing.

Referring to a more comparable and once again widely discussed case, the Paxton defense motion notes that, “During his 1917 impeachment, Governor James E. Ferguson unsuccessfully raised the prior-term doctrine in response to four of the twenty-one articles of impeachment.” Their motion provides a list of reasons that the Ferguson case differs from the Paxton case, most interestingly that “the Governor knowingly and continuously concealed the source of the financial transactions [the center of accusations of Ferguson’s wrongdoing] even throughout his impeachment proceedings.” By contrast, the motion argues, “the House does not charge Attorney General Paxton with continuing to conceal any ongoing misconduct,” and appends a 33-page list of written media reports covering Paxton’s various troubles to suggest that nothing was hidden from the public.

While Ferguson’s efforts to conceal evidence of his crimes from the public were very direct, Paxton’s legal strategy of delay (reminiscent of his political ally Donald Trump), if less direct, had (and continues to have) the similar effect of preventing the provision of more information to voters. In laying out the articles of impeachment against Paxton, House General Investigating Committee members made a point of noting that Paxton had successfully avoided final adjudication of the legal issues in a court of law (a point also repeated in the House managers' responses to Paxton's initial round of motions). It would seem hard to argue that the cases against Paxton, having not been heard and adjudicated in open court due to years of strategic delays, have been fully and transparently presented to most voters, even if there was evidence that they had been paying attention situation – a situation not dissimilar to that the court saw in the case of McInnes, the Hidalgo County DA.

Ironically, the attitudes toward the question of impeachment evident in polling suggest the opposite of what Paxton is arguing, even as they validate the strategy of delaying the commencement of a trial: the more people say they have heard about his situation, the more likely they are to think the process is justified. While the defense would seem to be arguing that this point is rendered moot by the election, it doesn’t appear that most voters were, in fact, informed prior to his most recent election, nor that the most informed voters agree with the premise of the prior term doctrine as invoked by the defense. Paxton’s electoral victories were more likely accompanied by lack of attention to a second tier statewide race than by fully-informed forgiveness.

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