Texas Attorney General Ken Paxton’s former chief of staff testified Monday about confronting him about his extramarital affair posing risks to the state office.
Another whisteblower also testified as Paxton’s impeachment trial rolled into its second week. State senators could begin deliberations as early as Thursday on whether to remove Paxton from office, according to Lt. Gov. Dan Patrick. Paxton could also be barred from running for future office.
Monday’s testimony began with a fifth whistleblower, Mark Penley, who was a deputy attorney general in Paxton’s office.
Among the allegations against Paxton is that he misused his office to help political donor Nate Paul with special legal attention while accepting home renovations and a job for a woman with whom he was having an affair.
Penley, like other whistleblowers who have testified so far, outlined concerns he had about Paxton’s involvement with Paul, who is an Austin real estate developer. Penley was among seven officials who ultimately reported Paxton to the FBI, and among four who filed a whistleblower lawsuit against the office.
“I think we all knew this was an incredibly dangerous and unique but outrageous situation,” Penley responded to a question of whether whistleblowers feared they’d be fired. “We were the only ones who could stop it. We had to.”
The meeting with the FBI lasted nearly four hours, he said.
“That was four hours of eyewitness, personal knowledge from people directly involved with the attorney general, the events I described and the events the others were involved in,” Penley said.
Penley said his boss wanted him to look into claims made by Paul related to the execution of search warrants on his home and businesses in August 2019.
Penley put Paul’s claims this way: Paul and his attorney wanted the office to “agree that an assistant United States attorney had illegally, at a felony level crime, altered search warrants after they were issued by a federal judge, and that two assistant United States attorneys, a federal judge and a whole bunch of state and federal agencies were in on a grand conspiracy to cover this up and target Nate Paul.”
Penley said he took steps to investigate the allegations with the hope that he could dissuade Paxton from believing the investigation had any merit. Paul and his attorney eventually stopped providing requested documentation. At one point, Paxton asked for a list of the desired documents. The attorney general said Paul and his lawyer didn’t trust Penley.
“I thought he was misguided,” Penley said of Paxton. “I thought he was biased against law enforcement to his detriment.
“I thought he was too aligned with Nate Paul whether it be through friendship or as time went on...” Penley said before he was cut off by the questioning attorney.
In one of Penley’s meetings with Paul, the developer acted as if he were in charge of the state office, he said.
“Mr. Paul acted like we didn’t understand who the real boss was,” Penley said. “It wasn’t the attorney general, it was him.”
Penley described discussing the matters with Paxton on multiple occasions. Penley said he warned his boss of potential criminal charges and media scandals.
“I told him that I was trying to be a loyal subordinate and a friend, and I still considered myself a friend even up to that very day, and I was trying to walk him back from what I thought was a dangerous line he was trying to cross.”
Mitch Little, one of Paxton’s attorneys, pressed Penley during cross examination on whether he had evidence Paxton had been bribed by Paul. Penley said he had circumstantial evidence, Paxton’s behavior and the campaign donation from Paul.
“Anything else?” Little asked.
“His absolute refusal to listen to common sense and reasoned legal positions,” Penley said. “He wouldn’t listen to anyone on the executive staff.”
Little asked Penley about notes he took, including writing that “KP must be indicted by spring break.”
“That was what you wanted, wasn’t it?” Little said.
“At that point yes, because I believed he’d broken the law,” Penley said.
Former staff member recalls Paxton’s affair
Missy Minter Cary, a former chief of staff, gave the most in-depth account yet of Paxton’s affair and its effect on office morale. She was the first witness who was not a whistleblower to testify in the impeachment trial.
Cary recalled seeing Paxton with the woman in public. She raised concerns of possible ethical, political and legal risks in a meeting with Paxton, where he confirmed the affair.
“These things can open one up bribery, misuse of office, misuse of state time, things like that,” Cary said.
In a 2018 meeting, the attorney general and his wife, Sen. Angela Paxton, told staff about the affair. He apologized; his wife appeared sad and embarrassed, Cary said. The experience was uncomfortable and somber, she added.
“My heart broke for her,” Cary said.
Cary said she believed Paxton was done with that sort of behavior, but problems arose again in the summer of 2019. She was hearing from travel aids, security detail and Jeff Mateer, who was first assistant attorney general.
Cary again met with Paxton, at his request, and learned the affair was continuing. Cary said he seemed frustrated with her and told her he still loved the woman.
Cary said she repeated her ethical advice from 2018.
“I told General Paxton, quite bluntly, that it wasn’t my business who he was sleeping with, but that when things boiled over into the office and into the state work, that it’d become my business and that I was having concerns about how the time and effort of… the travel aids, the security detail and myself was being spent.”
Cary also testified that she was subpoenaed to appear before a grand jury in 2021.
Tony Buzbee, one of Paxton’s lawyers, questioned why nothing has happened since then.
“Has there been an indictment of our attorney general?” Buzbee said.
Buzbee emphasized through his line of questioning that it’s not a crime to have an affair.