Ken Paxton asks appeals court to toss whistleblower case brought by former top aides

Texas Politics

Texas Attorney General Ken Paxton speaks at the Austin Police Association on Thursday Sept. 10, 2020. Twitter has filed a lawsuit against the Texas Attorney General. The social media company claims the Republican used his office to retaliate against it for banning the account of former President Donald Trump following the riot at the U.S. Capitol last year. Days after the deadly riot, Paxton announced an investigation into Twitter and four other major technology companies for what he called “the seemingly coordinated de-platforming of the president.” Twitter responded Monday, March 8, 2021 with a federal lawsuit claiming Paxton is seeking to punish it for taking Trump’s account offline. (Jay Janner/Austin American-Statesman via AP)

AUSTIN (Texas Tribune) — Texas Attorney General Ken Paxton is continuing to forcefully push back against accusations of bribery made by a group of former senior aides who reported him to federal and state law enforcement agencies because they claimed he improperly helped a political donor in exchange for personal favors.

Paxton fired the four former aides last year, saying they had gone “rogue” and made “unsubstantiated claims” against him. The aides then filed a whistleblower lawsuit arguing Paxton fired them as retaliation for reporting his alleged behavior to federal and state law enforcement agencies.

In an 85-page brief filed Tuesday with the 3rd Court of Appeals, Paxton’s lawyers argue that under state law, a whistleblower must believe someone has broken the law, but the aides only reported that “they expected laws might be violated.”

This appellate brief was made public hours before Texas Land Commissioner George P. Bush is expected to announce at an event that he will run against Paxton for attorney general. Bush has made the allegations of Paxton’s former aides and separate felony securities fraud charges against Paxton a line of attack as he prepares to announce his run.

In particular, the brief states that at a March 1 hearing on the case, one of the plaintiffs, former First Assistant Attorney General Jim Mateer, would not specifically state that he saw Paxton commit a crime.

“Instead, he explained he ‘had potential concerns,’ and that he and his colleagues concluded that ‘had they gone down this path, would be in a position to assist and/or cover up with what … would be a crime,’” the brief states.

“… Speculative concerns about potential future illegal activity do not fall within the [Whistleblower] Act’s narrow scope,” it states.

Mateer did not immediately respond to a request for comment. A lawyer for one of the plaintiffs said they expect to release a response to the brief later on Wednesday.

Paxton’s lawyers are asking the court to reverse a trial court decision denying the Office of the Attorney General’s plea to dismiss because the court doesn’t have the jurisdiction to hear the case. The lawyers have repeatedly argued Paxton cannot be sued under the Whistleblower Act because he is not a public employee.

Paxton also argues the aides were unsatisfied that he overruled their decision not to get involved in a lawsuit between Austin real estate developer Nate Paul, his friend who gave $25,000 to Paxton’s 2018 reelection campaign, and the Roy F. and Joann Cole Mitte Foundation. Paxton directed the agency to intervene and took “a deep personal interest” in the case, according to the whistleblower lawsuit.

The effort, according to the whistleblowers and an attorney for the charity, was intended to help Paul’s interests at the expense of the philanthropic group.

The brief argues the plaintiffs have not provided specific proof of a bribe by Paxton or Paul, but only speculated they “might” have had business dealings.

“None of these allegations of perfectly lawful conduct come close to making out a claim for bribery,” the brief states.

In February, the four aides had alleged in a court filing that Paul helped Paxton remodel his house and gave a job to a woman with whom Paxton allegedly had an affair.

In return, the aides allege, Paxton used his office to help Paul’s business interests, investigate Paul’s adversaries and help settle a lawsuit. The filing in February was the most detailed explanation as to what the former aides believe Paxton’s motivations were in what they describe as a “bizarre, obsessive use of power.”

The allegations have reportedly sparked an FBI investigation. Home renovations are part of the criminal investigation, according to the Associated Press. The AP reported in February that an Austin contractor had been summoned to testify before a grand jury and provide records related to the work on Paxton’s home.

The brief filed this week by Paxton’s lawyers does not specifically address any of the allegations made by the former aides. It also argues the plaintiffs don’t have a viable claim under the Texas Whistleblower Act and did not all properly make a report of the alleged violations.

This article originally appeared in The Texas Tribune at www.texastribune.org. The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans – and engages with them – about public policy, politics, government and statewide issues.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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