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When Ken Paxton became attorney general of Texas, he inherited a well-oiled conservative legal war machine that served as the linchpin of a slow but effective conservative takeover of the judicial system.
He returns now, impeached but not removed, to run a much different operation. Many of the highest profile attorneys have fled the office, some into the arms of the House impeachment managers. The state has had a dismal record the past few years in front of a conservative Supreme Court, and embarrassing missteps in significant human trafficking cases. And the impeachment proceedings, while saving Paxton’s job, did a number on the agency’s reputation, morale and relationships with external partners.
Following his acquittal, Paxton declared in a statement that he would now direct his complete attention towards legally contesting the Biden administration: “Prepare yourselves for a bumpy ride because we will not let your unlawful policies go unopposed. Texans will not tolerate any violation of the constitution or encroachment on their rights. Rest assured, there will be consequences for your actions.”
However, in order to continue fighting the ideological battles that have driven Texas attorneys general for the past 25 years, Paxton, who is now more confident and unafraid of conflict, must first find a way to stabilize the situation.
Evolution of an office
Mateer declined Ken Paxton’s job offer the first time it was extended.
While at First Liberty Institute in Plano, Mateer served as general counsel and focused on advocating for the reintroduction of prayer in public schools, protecting the rights of religious businesses to decline service to LGBTQ+ individuals, and placing limitations on public funding for contraception.
“Truthfully, I was already in my dream job,” Mateer testified last week. “Nevertheless, he requested that I seek guidance through prayer. So, my wife and I engaged in prayerful contemplation, and we discerned that we should relocate here.”
Not only Mateer, but during the initial years of Paxton’s tenure, conservative lawyers made a significant transition from prestigious positions in right-wing law firms and politics to join the Texas Attorney General’s office.
Ryan Bangert, who previously worked for Josh Hawley in Missouri, stated that the office had gained a reputation as a shining symbol for the conservative legal movement.
On the stand, he expressed his belief that Texas was at the forefront of advocating for the conservative legal movement in the United States.
State attorney general offices, thirty years ago, primarily functioned as bureaucratic entities focused on pursuing child support and providing defense for state agencies in legal disputes. On occasion, they would collaborate with other states to address consumer protection matters or environmental concerns.
But in the late 1990s, state attorneys general began to step into their power, taking a more proactive role in federal litigation. In Texas, this coincided with the Republican takeover of all statewide elected offices and, eventually, total domination in the Legislature.
States such as California, Massachusetts, Washington, and New York spearheaded this movement on the left, whereas Texas stood out amongst all other states on the right.
Beginning under now-Sen. John Cornyn, and accelerating significantly under his successor, now-Gov. Greg Abbott, the Texas Office of the Attorney General took an ambitious, aggressive stance in court, barraging the federal government with increasingly partisan lawsuits.
Following the U.S. Supreme Court’s 2007 ruling granting states “special solicitude” to initiate lawsuits, Texas assumed a pivotal role in the expanding conservative legal movement. With a higher likelihood of persuading judges compared to other plaintiffs, the state increasingly collaborated with conservative Christian legal organizations such as First Liberty.
In 2015, when Paxton assumed control, Texas had already established its reputation as the preeminent state attorney general’s office for the conservative movement. Additionally, it had emerged as a fertile training ground for aspiring conservative attorneys seeking valuable courtroom exposure.
The office helped launch the careers of now-Sen. Ted Cruz, conservative firebrand Jonathan Mitchell and almost a dozen lawyers who went on to be appointed to the federal bench under President Donald Trump.
According to Daniel Bennett, a political scientist specializing in the Christian legal movement at John Brown University in Arkansas, securing a position in either the AG’s office or the solicitor general’s office in Texas can significantly broaden one’s career prospects. It not only provides opportunities in politics but also paves the way for potential appointments as judges in the future. This could be seen as a strategic move by individuals within the Christian legal movement to increase their influence on the judicial system in the long run.
Paxton found it advantageous to have Mateer, Bangert, and others gathering in Texas to collaborate on formulating this highly influential legal strategy.
Josh Blackman, a professor at South Texas College of Law and an active member of the Federalist Society who is acquainted with several of Paxton’s early hires, expressed uncertainty about Paxton’s intentions when he first assumed office. As a former state senator who had faced allegations of security fraud, Paxton’s agenda was unclear. However, Blackman noted that Paxton’s decision to recruit individuals like Mateer demonstrated a shift towards aligning himself with competent individuals.
However, over time, Paxton’s reputation started to have an impact on him, even among the carefully chosen deputies who shared his political views.
Office turnover
Eight senior officials from the Texas Office of the Attorney General took the initiative in 2020 to approach the FBI and disclose allegations of corruption involving Paxton. This group of reporters included individuals such as Mateer, Bangert, Blake Brickman, who had previously served as the chief of staff to conservative Kentucky governor Matt Bevin, and David Maxwell, a highly respected Texas Ranger with a remarkable track record in law enforcement.
Bangert testified that we were safeguarding the state’s interests and, in my opinion, also safeguarding the interests of the attorney general. However, he believed that by doing so, we were essentially signing our professional death warrant. We were fully aware of the seriousness of our actions.
Following the reports made to the FBI, all individuals either resigned or were terminated, leading to a chain of events that ultimately resulted in Paxton’s impeachment trial and subsequent acquittal by the senators.
This sparked a different sort of chaos within the agency. With a single action, the agency had now been deprived of Paxton’s primary assistant, his second-in-command, and the deputy attorneys general responsible for overseeing policy, administration, civil litigation, criminal investigations, and legal counsel.
Mateer, who resigned and returned to leading First Liberty, was replaced by Brent Webster, a former assistant district attorney in Williamson County. Webster has been accused by the whistleblowers of leading the retaliation campaign against them. Another top Paxton aide, Drew Wicker, testified last week that Webster discouraged him from speaking to the FBI about the allegations against Paxton. Wicker has since left the agency, too.
Webster also supported Paxton’s long-shot federal lawsuit seeking to overturn the 2020 election results in four battleground states that went for Biden, which other conservative attorneys, inside the agency and out, cautioned him against filing.
Paxton and Webster were accused of professional misconduct by the State Bar of Texas for allegedly misrepresenting allegations of voting improprieties in their Supreme Court petition, with the bar claiming their actions were dishonest.
Texas’ petition was swiftly rejected by the Supreme Court, and it is worth mentioning that the solicitor general at the time, Kyle Hawkins, did not sign the filing. Shortly after, Hawkins resigned, and Judd Stone took his place. Stone would later temporarily step away from his position to defend Paxton during his impeachment hearing.
This degree of high-level turnover created ripple effects at all levels of the agency. Top agency spots were filled by campaign donors, some of whom left quickly in disgrace, and the office quietly dropped several human trafficking cases after losing track of a key victim, the Associated Press reported. Paxton also made a habit of refusing to represent state agencies when they faced lawsuits, a key aspect of his office’s work.
When it came to the all-important federal litigation against the Biden administration, the agency continued to push a relentless pace. But under Webster, the agency focused on filing “minimally viable lawsuits,” as he and Aaron Reitz, deputy attorney general for legal strategy, said on ‘Moment of Truth,’ a conservative podcast in 2021.
Reitz emphasized the importance of not allowing perfection to hinder progress, stating, “Although you can enhance and refine it later, we must prioritize speed over perfection in this situation.”
According to Reitz, Texas consistently employed a repetitive approach in all these instances. He stated that the Biden administration played with detention standards, public health regulations, and migrant protection protocols. Once the factual section is considered, the legal arguments section remains virtually identical every time.
This strategy worked in front of hand-picked, Trump-appointed judges like Matthew Kacsmaryk, Mateer’s former colleague at First Liberty, and on the newly super-conservative 5th U.S. Circuit Court of Appeals. But over the last few years, Texas has lost several high-profile cases at the U.S. Supreme Court. This past term, Texas went 0-4 in cases in which it was a party.
In rejecting one of Texas’ immigration challenges, the court seemed to repudiate Texas’ whole strategy. Justice Brett M. Kavanaugh called it “an extraordinarily unusual lawsuit,” and Justice Neil Gorsuch chastised Texas for attempting “government by lawsuit.”
After months of interim leaders, and years of tumult, the Texas attorney general is returning to the Texas Office of the Attorney General, alongside several senior attorneys who took leaves of absence to defend him.
Paxton has expressed his intention to prioritize national matters, which includes persistently challenging the Biden administration in federal court. Additionally, it can be assumed that he aims to restore the office’s reputation within the national conservative legal movement.
But inside Texas, there’s a war being waged, in his name, for the future of the Republican Party. Whether he’ll be able to resist entering the fray, and dragging the Office of the Attorney General with him, remains to be seen.
Webster is glad to have his boss back as he returns to the office on Monday.
“Congratulations Attorney General Paxton on his resounding win in the unjust and unfounded impeachment brought against him!” he wrote in an all-staff email obtained by the Houston Chronicle. “I ask that all of you join me in welcoming back our leader, the best Attorney General in the United States.”
Disclosure: The State Bar of Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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