Two Notable GOP Trials

[ Posted Thursday, September 7th, 2023 – 16:06 UTC ]

Two Republicans went on trial this week. One of these trials just concluded while the other will stretch on for a while. The two aren't connected in any way, it was just a coincidence of the legal calendar that they both got underway this week. But both are important milestones, in different ways, so it bears taking a look at what is going on.

The first trial -- the short one -- had Peter Navarro facing a federal jury on charges that he defied a subpoena from Congress. And it didn't take long at all for the jury to decide that he was indeed guilty. The trial itself was only two days long. It featured fewer than three hours of witness testimony. The jury only needed four hours of deliberation to return a unanimous verdict.

The whole case was more fallout from the House January 6th Select Committee. In their investigation, the committee issued subpoenas to many witnesses. Most complied with at least the letter of the law, by showing up at the appointed times. I say the "letter of the law" because some of the witnesses either endlessly repeated: "I take the Fifth" (or some version of it) or claimed executive privilege, while refusing to answer any questions of importance. Of course, everyone has a Fifth Amendment right not to self-incriminate, but executive privilege is a different story. Executive privilege must be claimed by the sitting president, and if the claim is accepted then the refusal to answer certain questions (about conversations with the president, for instance) is also accepted. But -- and this is key to Navarro's case -- you still have to show up and personally make these claims of executive privilege on individual questions. Many witnesses did show up and then essentially refused to answer any questions at all through either executive privilege claims or by "taking the Fifth." None of them got charged with a crime for doing so, please note.

Navarro chose another route. He just ignored the subpoena, staked a claim of executive privilege, and then didn't show up at the appointed time. He wasn't the only one to choose this route -- other aides to Donald Trump did the same thing. A handful of these cases were referred to the Justice Department for the possible charge of contempt of Congress. The Justice Department chose to prosecute two of them -- Navarro and Steve Bannon. Bannon was convicted of the crime last summer, and has appealed (his sentence has been put on hold during the appeals process).

Navarro didn't really even have a defense during the trial. The judge ruled before it began that he could not make the argument to the jury that he was covered by executive privilege, since he not only had zero proof that Trump had asserted this privilege at the time, but since then Trump has never even made the claim casually in public. Trump essentially hung Navarro out to dry. Absent any claim from Trump (since executive privilege can only be claimed by the actual executive), Navarro had no legitimate claim to make -- and he was thus barred from mentioning it to the jury.

This is why the trial went so fast. It was pretty open and shut: "Here is the subpoena which requires Navarro to appear on a certain date and time. He didn't show up. Case closed." Navarro's legal team didn't call any witnesses and only briefly cross-examined one of the witnesses for the prosecution. They were left grabbing at straws -- like arguing that since the prosecution hadn't proven exactly where Navarro was at the appointed date and time, somehow he was innocent:

"Where was Dr. [Peter] Navarro on March 2, 2022?" [defense attorney Stanley] Woodward said, referring to the date Navarro was due to appear before the select committee for a deposition. "We don't know.... Why didn't the government present evidence to you about where Dr. Navarro was or what he was doing? Something stinks."

In a rebuttal argument, Assistant U.S. Attorney John Crabb urged jurors to reject Woodward's argument.

"Who cares where [Navarro] was? What matters is where he wasn't," Crabb said. "He wasn't where he was legally required to be."

Which was a convincing argument for the jury, apparently. Navarro didn't put up much of a defense, because like Bannon before him he is betting he'll win on appeal. One or both of these cases could wind up before the Supreme Court, which is tilted 6-3 in the conservative direction. But that doesn't automatically equate to them ruling the way Navarro and Bannon want. With Trump refusing to back up Navarro's claim of executive privilege, he doesn't have much of a legal leg to even stand on.

The other important case this week is being tried in the Texas senate. Texas Republicans actually impeached one of their own -- the state's attorney general. But this trial is going to be a bit longer, since the case against Ken Paxton is very complex. The state house sent 20 articles of impeachment to the senate, which is trying Paxton on 16 of them. The charges include bribery, misuse of public funds, obstruction of justice, influence-dealing, and an extramarital affair where the mistress was provided a job as a favor to Paxton. It's messy, obviously, and it has a lot of moving parts. Complicating matters is the fact that Paxton's wife is a sitting senator. She will hear the trial but not be allowed to vote on it -- which seems fair, on the face of it, but the fact that she shows up to the trial allows her to be counted in the total of the senate, from which the two-thirds number of votes necessary for conviction is calculated. This essentially means she will "vote" against conviction, and that one extra vote will be necessary to convict (21 out of 31 instead of 20 out of 30).

Republicans control both chambers of the legislature, but an astonishing 60 Republicans in the house voted to impeach Paxton (out of 86 total Republican members). That's not exactly a vote of confidence from within your own party, and it puts the lie to any claim that this is all somehow politically motivated. And so far, Paxton appears to be in trouble:

[Lieutenant Governor Dan] Patrick [who is presiding over the senate trial] started by presenting pretrial motions, leading with a motion by [Attorney General Ken] Paxton's legal team to dismiss the charges. He needed at least 16 senators -- a majority in the 31-person chamber -- to approve the motion, but it failed, 24-6.

That is three more than the 21 votes necessary to convict, but it doesn't mean all 24 will vote to do so in the end. The trial has a possible 100 witnesses, although it's doubtful if anywhere near that number will testify. Each side gets 27 hours to make their case, which includes opening and closing arguments, their own witnesses, and the cross-examination of opposing witnesses. While 27 hours (each) is a lot of time, it does mean that the trial won't drag on forever.

Ken Paxton is a very popular Republican who is known nationally for being a fierce legal fighter against all things Democratic. He is often at the forefront of national legal battles, suing at the drop of a hat whenever Democratic policies are put into place that he doesn't like (which is most of them). Donald Trump's a big fan of Paxton as well. And like Trump, Paxton faces more than one legal challenge -- he is also facing trial in federal court on securities fraud, a case which he's managed to delay since 2015.

Will Texas Republicans actually remove Paxton from office (and bar him from ever running or serving in office again)? That would be a rather astonishing result to see. There are 12 Democrats in the Texas senate. If they all vote to convict Paxton, nine additional votes will be necessary from the Republicans. This vote will likely happen in the middle of next week, and it will be big news no matter what the result turns out to be.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


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