Lawyer for Texas attorney general’s office repeatedly tries to block testimony and evidence at whistleblower hearing

click to enlarge Texas Attorney General Ken Paxton - Wikimedia Commons / U.S. Department of Justice
Wikimedia Commons / U.S. Department of Justice
Texas Attorney General Ken Paxton
The first hearing in a whistleblower lawsuit against the Texas attorney general’s office mostly consisted of objections Monday. The agency’s attorney William Helfand opposed the vast majority of questions that lawyers asked two former agency employees who testified in a hearing to consider whether two of the fired aides should get their jobs back.

Helfand repeatedly lobbed those protests after he unsuccessfully tried to get the judge in the case to dismiss the lawsuit accusing Attorney General Ken Paxton of abusing his position. He argued Travis County District Judge Amy Clark Meachum must rule on the motion to dismiss before allowing testimony over the aides' possible reinstatement. At one point, Helfand filed an appeal to halt the testimony from happening.

But late Monday night, the Texas Third Court of Appeals ruled in favor of Helfand, granting a stay in the hearing while the court decides on the petition, postponing Tuesday's hearing.

Meachum had said Monday she wasn’t yet ready to determine whether the lawsuit should be dismissed, but she permitted testimony on a request for a temporary injunction that would allow two of the whistleblowers to have their jobs in Paxton’s office back.

“It’s starting to feel like you might be just elongating things for the purpose of elongating them rather than actually in good faith responding to arguments,” Meachum told Helfand before she allowed the hearing to continue.

The lawsuit is being brought by four former aides fired from Paxton’s office after they joined other agency employees last year in accusing the attorney general of abusing the use of office and bribery. Paxton did not attend the hearing.

Meachum’s decision to allow witnesses to testify and evidence to be presented prompted push back from Helfend, who argued the judge was violating his client’s due process rights. Paxton’s office has repeatedly fought off efforts by the four former aides to take depositions and issue subpoenas in the lawsuit claiming they were illegally fired after telling authorities they believed the state’s top attorney broke the law.

Lawyers representing the attorney general’s office continued Monday to argue the suit should be dismissed on procedural grounds. They have argued that Paxton is “not a public employee,” and thus the office cannot be sued under the Texas Whistleblower Act. They also argued that the aides were not covered under that act because members of the executive branch, including the attorney general, have the power to hire and fire their own senior staff without legislative branch interference.

Lawyers representing the whistleblowers slowly tried to proceed through arguments to fend off a dismissal and take testimony from witnesses. That included testimony from Jeff Mateer, the former first assistant attorney general. Mateer resigned in October after reporting Paxton’s alleged criminal behavior to law enforcement agencies along with seven other employees. Ryan Vassar, one of the whistleblowers asking for his job to be reinstated, also began to testify and is expected to continue his testimony Tuesday.

Mateer testified that the group of employees alleging criminal conduct had a “good faith belief” the attorney general had violated state law.

Helfand repeatedly objected throughout the testimony that some questions could not be answered because their conversations with Paxton were protected by attorney-client privilege. And Mateer testified that Paxton’s office previously sent him a letter cautioning him against sharing any conversations that were still protected by attorney-client privilege.

But in responding to some of those objections, the judge said the agency had waived its rights to attorney-client privilege when the office commented publicly on the situation and the aides. She said she’d allow witnesses who worked in the office to answer related questions, depending on the line of questioning.

James Brickman, David Maxwell, J. Mark Penley and Vassar have claimed their firings were retaliation for reporting Paxton’s behavior to federal and state law enforcement agencies. They told those authorities that they believed Paxton was abusing his power to help Nate Paul, his friend and political donor, who gave $25,000 to Paxton’s 2018 reelection campaign.

The allegations have reportedly sparked an FBI investigation.

In an updated version of the lawsuit filed last month, the four whistleblowers claim that Paul, an Austin real estate developer, 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 claims in the filing provide even more details about what the former aides believe Paxton’s motivations were in what they describe as a “bizarre, obsessive use of power.”

Paxton has previously dismissed the plaintiffs as “rogue employees” wielding “false allegations.”

The whistleblowers previously claimed that the attorney general’s most egregious abuse of power occurred when he hired a Houston defense attorney, Brandon Cammack, to review complaints Paul made alleging that he was mistreated by federal and state law enforcement officials when his home and business were raided by the FBI in 2019.

While the aides tasked with investigating the issue found “no credible evidence” that Paul’s rights were violated, Paxton joined Paul and his attorney and pushed back, they say in court filings. Top aides said hiring Cammack to investigate Paul’s claims was unusual and improper, the filings state.

The whistleblowers said matters came to a head when Cammack obtained more than three dozen subpoenas they believed targeted Paul’s enemies.

But the whistleblowers said they felt pressure even before Cammack was hired. In fall 2019, they were encouraged to help Paul’s attorneys obtain information through open records requests submitted to other agencies, related to the raid on his home and office.

According to the filing, Paxton also directed top aides to issue a legal opinion that would help Paul’s business interests. Days after the opinion was issued, Paul’s attorneys used it to push off the foreclosure sales of several of his properties.

Weeks after the whistleblowers reported Paxton for his behavior, two of the plaintiffs were placed on leave before being terminated. The other two plaintiffs were also eventually fired as well.

The four plaintiffs are seeking reinstatement and compensation for lost wages and future loss of earnings. They also are seeking damages for emotional pain and suffering. If they win, the taxpayers will cover most of the litigation costs.

The hearing on the temporary injunction was expected to continue Tuesday with testimony from Vassar and Ray Chester, a trial lawyer who represented a charity in a dispute against Paul. The plaintiff's lawyers have until March 8 to respond to the petition.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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