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Federal Judge Orders Texas AG to Testify in Abortion Case: If Paxton ‘Has Time to Give Interviews Threatening Prosecutions,’ He Can Show Up to Court

Texas Attorney General Ken Paxton speaks during the Conservative Political Action Conference CPAC held at the Hilton Anatole on July 11, 2021 in Dallas, Texas. (Photo by Brandon Bell/Getty Images.)

Texas Attorney General Ken Paxton

A federal judge in Texas ordered embattled Texas Attorney General Ken Paxton (R) to appear and give testimony in a lawsuit filed by multiple abortion rights nonprofit organizations. The judge, who initially quashed Paxton’s subpoena a week earlier, said the change was supported by Paxton’s own contradictory statements and social media posts.

The plaintiff organizations brought a class action lawsuit against Paxton in his official capacity last August in an effort to prevent Paxton from any potential plans to prosecute them for helping Texans obtain legal abortions in other states. The plaintiffs pointed to Paxton’s inflammatory statements on social media and in the press that promised to bring criminal charges against those who would assist in procuring out of state abortions.

The complaint argued that Paxton’s public statements had a chilling effect on plaintiffs’ First Amendment rights to speak about and fund abortion care, and that the statements interfered with plaintiffs’ right to interstate travel. The plaintiffs sought an injunction which would prevent Paxton and other Texas officials from punishing their organizations for facilitating abortion care outside Texas.

A hearing was scheduled for Sept. 27, during which the plaintiffs would argue their motion for a preliminary injunction; U.S. District Judge Robert L. Pitman (a Barack Obama appointee) ordered all parties to appear at that hearing. Prior to the hearing, the parties submitted briefs to the court outlining their positions.

The plaintiffs intended to question Paxton at the Sept. 27 hearing, specifically to address contradictory statements Paxton had made in to press. On Sept. 22 and for several days thereafter, plaintiff’s counsel emailed Paxton’s office to confirm that the Attorney General would indeed appear at the hearing five days later, and to ask if Paxton would accept service of a subpoena.

The afternoon before the hearing, Paxton filed a motion to quash the subpoenas, and according to Pitman, “Paxton argued that, as a high-ranking government official, he could not be compelled to testify in a hearing.” Further, Pitman noted in the court’s order, “Paxton represented that the Court should deny the motion because Plaintiffs raised the prospect of his testimony at the last minute.”

The next morning at 8:00 a.m., Pitman granted Paxton’s motion to quash the subpoena. The plaintiffs immediately moved for reconsideration. After Pitman took a second look at the issue, he not only decided to revive the subpoena, but also took every opportunity to point out Paxton’s conduct during the prior proceedings.

In a 13-page order, Pitman called out Paxton for having “characterized the timing of the request as being made at the ‘eleventh hour,’ and arguing that the subpoena came on “the literal eve of trial.” (emphasis Paxton’s). What Paxton left out, said Pitman, was any acknowledgement that Paxton’s lawyer had been notified in advance of the AG’s expected appearance.

Pitman also took issue with a footnote in Paxton’s brief that claimed the subpoenas were not served, and “made no mention of Plaintiffs’ repeated emails attempting to serve Paxton and inquiring how best to accomplish service.”

In Pitman’s order Tuesday, the judge emphasized that the court relied in its initial decision on what it erroneously assumed were “candid representations of counsel,” and reasoned that “those statements influenced the Court’s decision on Paxton’s motion to quash.”

Pitman then turned to a fresh analysis of the subpoena. Because Paxton is a “high-ranking official,” the plaintiffs bear the burden of demonstrating “exceptional circumstances” that require Paxton’s personal participation in the litigation. Pitman agreed that in this case, “exceptional circumstances” do, indeed, exist such that Paxton should testify.

The judge agreed with plaintiffs that only Paxton is capable of properly clarifying his public statement that he plans to “use the full force of [the Texas Trigger Ban] to make people pay.” Pitman also pointed out that Paxton’s position has been inconsistent “over the course of the lawsuit and even within the same document.”

One such inconsistency, said Pitman, was that Paxton argued that the plaintiffs lack standing, because they have no concrete injury while also promising that his office would bring civil enforcement actions against them. Paxton also argued that the plaintiffs face “no imminent treat of enforcement” for assisting with abortions while also saying that his office viewed abortions as illegal regardless of where they take place.

Pitman reasoned that Paxton’s testimony is necessary for the purpose of determining what his policy actually is, and whether that policy comports with the law. Paxton, said Pitman, “also possesses unique, first-hand knowledge of the issues at hand and how he will enforce the Trigger Ban.”

Pitman also addressed Paxton’s claim that other attorneys in the Attorney General’s office could give sufficient testimony without requiring Paxton himself to appear. Those other officials might have been enough, said Pitman, had Paxton not used his threat as a repeated talking point. Pitman wrote:

In this case, Paxton has inserted himself into this dispute by repeatedly tweeting and giving interviews about the Trigger Ban. Having added his voice many times—not just in a press release or official statement but in intentional ways designed to reach Texans from within his role as Attorney General—Paxton alone is capable of explaining his thoughts and statements.

Pitman next slammed Paxton’s argument that the plaintiffs’ concerns are “objectively unreasonable.”

“If their fears are unwarranted, then that will become clear during the course of his testimony,” promised Pitman. “But the Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purposes of deterrence and as hypothetical for the purposes of judicial review.”

Finally, Pitman refuted Paxton’s argument that testifying would be overly burdensome for him given his busy schedule.

“[T[he idea that Paxton would be unduly burdened by testimony in court is belied by his many public statements and interviews in which he threatens civil prosecutions of Texans,” Pitman said bluntly.

The judge said it was “challenging” to reconcile Paxton’s argument that he is too busy to testify when he “has time to give interviews threatening prosecutions,” and yet refuses to explain those threats to the very people he promises to prosecute. If Paxton is burdened by testifying, said Pitman, it is because Paxton has chosen not to clarify his position on out-of-state abortions.

Notably, Paxton recently took exception to reporting that he knowingly fled to avoid being served with a subpoena in the abortion case.

Pitman ordered the parties to come up with a plan for Paxton’s testimony by Oct. 11, 2022.

The issue of funding out-of-state abortion is not the first time Paxton’s power to prosecute Texans has come before the courts. In Dec. 2021, Paxton was scolded by the Texas Court of Criminal Appeals, when it ruled that Paxton had exceeded his legal authority by attempting to prosecute Zena Stephens, Texas’ first Black female sheriff, for election law infractions.

Attorneys for the parties did not immediately respond to request for comment.

[Photo by Brandon Bell/Getty Images.]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos