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Fifth Circuit Shields AG Ken Paxton from Testifying About Threats to Prosecute Those Who Pay for Abortions Outside Texas

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 conservative federal appellate court handed Texas Attorney General Ken Paxton (R) a big win Monday when it shielded him from testifying in an abortion-related case by overturning a lower court order that had been highly critical of Paxton’s behavior.

In early October, a federal judge ordered Paxton to appear and give testimony in a class action lawsuit filed by multiple abortion rights nonprofit organizations. The lawsuit sought to challenge Paxton on his inflammatory public comments that promised to prosecute anyone who would assist in procuring out of state abortions.

Plaintiffs argued that Paxton’s statements interfered with their First Amendment right to fund abortion care and asked for injunction to stop Paxton from punishing organizations that facilitate abortion care outside the Lone Star State. U.S. District Judge Robert L. Pitman (a Barack Obama appointee) ordered all parties to appear at a hearing, but drama unfolded over Paxton’s refusal to attend and testify.

Paxton filed a motion to quash the relevant subpoenas. He argued that the request for his testimony had been made “at the eleventh hour” and that he was too “high-ranking” to be compelled to appear. Although Paxton initially succeeded in quashing the subpoenas, Pitman did an about-face after he learned that Paxton’s characterization of the subpoena as a last-minute surprise had been disingenuous.

In an order, Pitman slammed Paxton for his “inconsistency.” Pitman wrote that the attorney general had “inserted himself into this dispute by repeatedly tweeting and giving interviews about the Trigger Ban,” and that because Paxton “has time to give interviews threatening prosecutions,” that he cannot reasonably argue that submitting to questioning about those threats is “unduly burdensome.”

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, however, overturned Pitman’s order Monday and sided with Paxton. The panel of all Republican-appointed judges consisted of Senior U.S. Circuit Judge Patrick Higginbotham (appointed by Ronald Reagan), and U.S. Circuit Judges Stuart Kyle Duncan and Corey Wilson (both appointed by Donald Trump).

Duncan wrote for the panel and first took issue with the order in which the district court made its rulings. Duncan said that Pitman should first have considered the court’s jurisdiction before turning to the secondary issue of Paxton’s testimony. Because Paxton argued that he was immune from the underlying lawsuit, the question of immunity should have preceded the narrower question of the subpoenas, said the panel.

The panel went on to address Pitman’s reasoning for denying Paxton’s motion to quash the supboenas. Duncan wrote that Pitman’s finding that “extraordinary circumstances” existed such as to warrant Paxton’s testimony was not only wrong, but rose to the level of “abuse of discretion.”

Pitman’s finding that Paxton had “unique, first-hand knowledge” of his own threats to prosecute had been wrong, said the panel. Duncan detailed how the panel saw requests for attorneys general to testify:

High-ranking officials—state attorneys general being the paradigm case—are often drawn into lawsuits. They cannot perform their duties if they are not personally shielded from the burdens of litigation.

Duncan wrote that any need to clarify the office’s policy can be be done by one of Paxton’s representatives, and that “Paxton’s personal ‘thoughts and statements’ have no bearing on his office’s legal authority to enforce Texas’s abortion laws or any other law.” Duncan characterized Paxton’s public statements as merely “talk[ing] to his constituents” that do not necessarily indicate that Paxton has “ample free time for depositions.”

Judge Higginbotham penned a concurrence to the panel’s decision in which he remarked that “The energy driving this case is generated by its subject—not its complexity.”

Higginbotham wrote that in his estimation, the plaintiffs may well have a legitimate concern about criminal prosecution. The judge gave some context, which drew on the very “inconsistency” Pitman remarked upon in his now-overturned order:

Attorney General Paxton argues to this Court that the potential liability Plaintiffs fear is “nonexistent,” while at the same time he argues that when “procurement takes the form of a bus ticket for the pregnant Texan to an abortion clinic, or the paying from Texas of the cost of a pregnant Texan’s hotel room adjacent to that clinic, it does not matter if the travel and hotel are in Albuquerque or Austin” for the State to have an interested in protecting the unborn.

Given these circumstances, Higginbotham said, the trier of fact could find that Paxton’s statements chilled free speech — which would then result in a favorable ruling for plaintiffs on the matter of standing and jurisdiction.

[Image via 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