Political Repression – Alive and Well in Paxton’s Trial
Texas has a long tradition of political persecution prosecutions. We’re nationally known for them, as seen in the Wall Street Journal’s Editorial back in August. From Rick Perry to Tom Delay, and now Ken Paxton. Political prosecutions eventually lose, but their real goal is to ruin careers, and as to their success in that venture, the results are mixed.
What makes General Paxton’s case stand out is the degree to which the judges and prosecutors played an active role in abusing their power in the case – it has been a study in judicial activism. This author has filed not one, but three, judicial complaints against the actions of Judge Oldner, whose behavior in this case is beyond rational. You can read those here: complaint 1, 2, and 3.
In the Wall Street Journal piece in August, the editorial board makes reference to a document the board had seen which lays out how the case is nothing more than a political witch hunt. That document, AVAILABLE TO THE PUBLIC FOR THE FIRST TIME HERE is a Motion to Dismiss which Judge Gallagher denied and blocked the public from seeing. This document leaves the reader with a complete understanding of exactly how and why this case is nothing more than a political inquisition.
The document claims: “The Grand Jury Materials and description of the grand juror notes reveal the Indictment was procured after significant procedural misconduct, pervasive material omission, and the misstatements of law and fact by pro tem attorneys.”
- “Misrepresenting the date by which grand jurors should calculate the statute of limitations”
- “Asking grand jurors to indict based on the wrong definition of an ‘investment adviser representative.’ A definition that was – and had been – preempted by federal law.
- “Omitting to instruct the grand jurors that, as a matter of law, Paxton did not have to register with the State Securities Board because the entity that he worked under, Mowery Capital Management, was itself federally registered.”
- “Making the false assertion, without evidentiary support, that Paxton knew that certain disclosure documents generated by Mowery Capital Management were backdated and falsified.”
- “Misleading the grand jury as to the proper legal standard for pursuing a criminal prosecution versus administrative action.”
- “Allowing Judge Oldner to be present in the grand jury room and to make improper statements before the grand jury.”
Now each of these allegations is problematic on their own, in their totality they show the indictment was a set-up from the onset.
This Motion to Dismiss should never have been sealed in the first place. The lengths to which Oldner went to not only secure the indictments, but cover the tracks of his actions is unprecedented. In this MTD we learn that Oldner was in the jury room influencing the members of the grand jury. This behavior is not only problematic – it is in direct violation of Texas Code of Criminal Procedure. The fact that the jury took notes and those notes were later reviewed by both sides in the case, is an interesting fact the public has not been previously apprized of. Apparently, based upon those notes, Oldner led them to conclude it was an “unusual case” with “probable cause for illegal activities” and required a “DA recusal” and assignment of a “special prosecutor.” The judge, or anyone else, is prohibited from influencing the grand jury, or even being in the room. Simply put – the motion claims Judge Oldner’s presence in the room was illegal, and that alone was enough to dismiss the indictments.
It was not only Oldner who behaved badly.
Possibly the most problematic issue with the indictment is the intentional fabrication of evidence. Specifically, the motion claims, the prosecutors changed the date on the representation of when Paxton had allegedly referred clients to Mowery. The letter in possession of the prosecutors was dated June 26, 2012. However, in their presentation to the grand jury and in the resulting indictment, the prosecutors changed that date to reflect July 18, 2012, according to Paxton’s Motion to Dismiss. Why? Simply put – the indictment was handed down on July 7, 2015, several weeks after the statute of limitations would have run out, were there to have been a violation in the first place. The prosecutors fabricated a date – and Judge Oldner appears to have allowed them to do so – and the grand jurors were simply given inaccurate information. Information that if correct would not have allowed for an indictment under the law. Fabricating evidence in order to secure an indictment would indicate willful dishonestly. Taxpayers must demand the judge and prosecutors be held accountable for their actions.
The Motion to Dismiss goes on to show how the prosecutors used the wrong definition of a registered advisor, withheld the fact that the firm was registered with the FEC at the time, preempting the state registration requirement, made allegations to facts that simply never existed, and misled the members of the grand jury as to the correct standard necessary for an indictment. Each of these denied Ken Paxton’s constitutional right to due process. Due process was steamrolled by the very prosecutors bound to uphold those rights.
And back to the judge – Oldner. The MTD goes on to lay out six violations by Judge Oldner. They are:
- Improper empanelment of the 416th Grand Jury;
- The ordering of information restriction on the identity of grand jurors contrary to Texas law;
- Improper entry into the grand jury room while the 416th Grand Jury was in session;
- Violation of grand jury secrecy by informing an unauthorized person that Paxton had been indicted when the information was sealed and non-public;
- Improper withholding of the July 7th Indictment document upon a true bill and not providing it to the Collin County District Clerk; and
- Improper denial of a summons and issuing arrest warrants for Paxton.
(Many of these allegations against Oldner are documented in the linked judicial complaints at the beginning of the article.)
All of this indicates one thing to this author – Oldner and the prosecutors were running an outcome-oriented court. The evidence is clear. They were abusing the system to attack a political opponent.
The obvious question is why Judge Gallagher sealed this Motion to Dismiss in the first place? The MTD condemns Older on its face. By not granting it and sealing it from public view, the document serves as a condemnation of Gallagher as well.
The conclusion of the motion says it best: “The indictment in this case was not a product of an honest grand jury presentation. It was not obtained within the parameters of the law and the Texas and U.S. Constitutions. The grand jury materials provided by the Court show that the pro-tem lawyers misrepresented the law, turned a blind eye to legal inconveniences, and wove facts from the whole cloth. This indictment should be dismissed because it was obtained by violating Paxton’s right to due process and his right under the Texas Constitution to have a grand jury screen his case for probable cause on each element of the alleged crime.”
The law is the law. This indictment should not stand. It’s time Texas changes its course of weaponizing the courts against those who challenge the political power structure.
End this madness NOW.