The impeachment trial for suspended Republican Texas Attorney General Ken Paxton resumed Monday morning.
Prosecutors called Mark Penley as their first witness on Monday. Penley is the fifth of eight whistleblowers expected to testify in the trial. (Read the latest updates in the trial in the live blog below)
The whistleblowers are a group of former high-level staffers in Paxton's office who notified the FBI that they believed their boss was breaking the law in helping Austin developer Nate Paul. Paul claimed that he was a victim of illegal behavior by the Federal Bureau of Investigation with improper warrants served in a search of his home and business and allegedly asked for help from the AG's office.
Evidence shows Paxton hired Houston Attorney Brandon Cammack to pursue an investigation of Paul’s allegation about the FBI and other parties, against the advice of members of Paxton’s top staff, some of whom testified earlier in the trial.
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Four of the whistleblowers filed a lawsuit over retaliation in November 2020 arguing Paxton violated the Texas Whistleblower Act. In early 2023, it was announced there had been a settlement reached in the lawsuit worth $3.3 million.
In the trial's first week, whistleblowers Jeff Mateer, Ryan Bangert, Ryan Vassar and David Maxwell all took the stand during the first week with Blake Brickman, Lacey Mase and Darren McCarty yet to come.
Paxton has been absent from the trial since pleading not guilty last Tuesday, but his wife Angela Paxton, a state senator, has been present though she is forbidden from voting on a decision. The rest of the Texas Senate will decide the case when all of the witnesses are heard.
Texas Lieutenant Governor Dan Patrick serves as a judge for this trial. Patrick said each side started Monday with about 14 1/2 hours left on the clock and that he thought deliberations could begin as soon as Thursday.
Patrick said they would not take a day off until they have a final resolution on the verdict.
DAY 5 UPDATES
6:48 p.m., Patrick adjourned the court. Noted the time remaining for the House 9 hours 19 minutes and 12 seconds and 12 hours 14 minutes and 15 seconds for the respondent.
6:47 p.m., Buzbee passed the witness.
6:43 p.m., Buzbee discusses a statement written by one of Moore's subordinates in January 2021. Buzbee reads from the letter where it said the Travis County DA's office didn't have the resources to pursue the request and that they would often refer those cases to the Texas DPS, FBI, OAG or other investigative agencies. Buzbee read from the letter where it said, "It should be noted that at no time prior to this conversation did General Paxton ask that we refer the matter to his office. To my knowledge, the idea to refer the Nate Paul matter to the OAG came from our office. General Paxton was not certain his office could even review the matter."
6:41 p.m., Buzbee questions why in her letter she didn't mention the second referral. She admitted she didn't mention it. He asked about her saying she closed the file and asked if they had an open file up to that point. She said she didn't have a full recollection but doesn't think they ever actually opened a file.
6:39 p.m., Hardin passes the witness and Buzbee begins recross.
6:39 p.m., Hardin asked about the video shown in court earlier at 6:04 p.m. (referenced below). "The video that we saw. Did you notice that the attorney general made no attempt to correct that untruthful testimony given by the finance committee?"
"Not in the clip that I saw," Moore responded.
6:38 p.m., Moore said she didn't know what a special prosecutor for the OAG is since prosecutions are the authority limited to the elected district and county attorneys of the state. She said the "special prosecutor" was not appointed by her and was not supervised by her. She added the special prosecutor would not be authorized to prosecute in Travis County unless approved by her.
6:34 p.m., Hardin asked Moore to read to the jury what she told Paxton on Oct. 9, 2020, in a letter.
In the letter dated June 10, Moore said her office sent David Maxwell a referral, a request to investigate (RTI), by Nate Paul that was received after he (Paxton) asked her office to hear his complaints. The referral to the OAG was made with Paxton's approval. They did not do any investigation into the merits and concluded that their office was not the appropriate office to address the matters raised in the complaint or to investigate them.
"The referral cannot and should not be used as any indication of a need for investigation and desire on the Travis County DA's part for an investigation to take place or an endorsement of your acceptance of the referral. My office has closed this file and will take no further action," Moore read. "Furthermore, I have instructed my employees to have no further contact with you or your office regarding this matter. Any action you have already taken or will take pursuing this investigation is done solely on your own authority as provided by Texas law. The newly surfaced information raises serious concerns about the integrity of your investigation and the propriety of your conducting it. Sincerely, Margaret Moore."
6:32 p.m., Buzbee passed the witness. Hardin began redirect.
6:28 p.m., Moore said some of her staff filled out the applications electronically for subpoenas and emailed them to Cammack. Moore said she didn't know who put the special prosecutor title on the documents.
6:21 p.m., Moore said she didn't know until recently that multiple people in her office were assisting Cammack in obtaining grand jury subpoenas related to both the first and second referral.
6:20 p.m., Moore said she did not recall when she learned of the second referral from the Travis County DA's Office.
6:13 p.m., Buzbee questions why she would send it to David Maxwell, a former Texas Ranger, when she thought it would be inappropriate to send it to the Texas Rangers. She responded, that he was the chief investigator in the AG's office.
6:11 p.m., Buzbee asked Moore about her statement to the Board of Managers regarding the FBI. She said Nate Paul's allegations were not just against the FBI, but against a number of agencies and were incredible and without merit.
6:07 p.m., Rusty Hardin passed the witness and Tony Buzbee began cross-examination.
6:04 p.m., A video is played of an interview with the OAG's office that said Brandon Cammack was hired by the OAG as outside counsel and was then appointed as a special prosecutor by the Travis County DA. Moore said the testimony was "astonishingly untruthful."
6:02 p.m., Moore said the Travis County DA's office didn't hire anyone to look into the Nate Paul matter and that after the file was sent to the OAG her office had nothing to do with investigating the matter or assisting Brandon Cammack in the case.
5:57 p.m., Moore said she didn't authorize anyone to investigate the matter or appoint anyone as a special prosecutor or a pro tem prosecutor.
5:56 p.m., Moore said she discussed the language of the rejection letter with staff at the OAG so that it didn't appear to be an endorsement. The letter didn't ask for an investigation, it asked for a review and Moore said she expected the investigators in the AG's office would find it baseless and not worthy of investigation.
5:50 p.m., Moore said if Nate Paul had come on his own they would have sent a rejection letter. She said had it not been for Paxton's personal interest it would have been handled routinely. But because she valued her friendship with Paxton she didn't want to offend him and it seemed to be a delicate way to handle the matter.
5:48 p.m., Moore said they had no intention of investigating the complaint or prosecuting the complaint.
5:46 p.m., Moore said the complaint filed by Nate Paul was going nowhere and that after the paperwork was filled out he would have received a rejection letter. Moore said it's a practice that the complainant should swear to the allegation and that they should be asked to do so -- but she acknowledged in Paul's case he did not do that.
5:43 p.m., Moore said she was not at the luncheon but that her staffers said the complaints brought forth by Mr. Paul were "ridiculous."
5:43 p.m., Prior to this meeting, Moore said she had never heard the name Nate Paul.
5:41 p.m., Moore described her relationship with Attorney General Ken Paxton as friendly. She said he'd been generous in helping with matters they asked him to help with. She considered him a friend.
In May 2020, she became aware of a conversation her first assistant had with Paxton and she agreed to a meeting about the topic of that conversation. She said if the highest legal officer in the land wants to meet it's going to be a "yes." She said it was a lunch meeting to discuss a case the attorney general felt should be investigated by the DA's office.
5:40 p.m., Moore said she worked at the OAG under Greg Abbott for nine years from 2005-2014.
5:34 p.m. The House Board of Managers called Margaret McCarthy Moore, former Democratic Travis County District Attorney. She lost a runoff in July 2020 and was a "lame duck" until the end of her term.
5:33 p.m., The witness was passed. The defense did not recross.
5:32 p.m., The prosecution tried to show a video but because it was not shown in the initial testimony it was not subject to brought up in redirect.
5:29 p.m., Buzbee passed the witness. The prosecution began redirect.
5:28 p.m., Buzbee asks Cox if there is any way he'd ever want to be associated with the kind of criminal conduct outlined in his list of possible offenses. Cox replied, "Correct." Buzbee then asked Cox if he applied for a job at the AG's office after writing of the potential violations. Cox said that Travis County DA Moore wrote him a letter of recommendation. Cox said it was a general letter of recommendation for any job.
5:26 p.m., Buzbee criticizes Cox for coming into the chamber and listing "a bunch of maybes."
5:25 p.m., Buzbee questions Cox as to whether any of the possible offenses were true. He said based on his interviews with witnesses, it appeared that it was true. He said a preliminary investigation was to determine whether or not to move forward with an investigation and that's the stage they were out.
5:19 p.m., Buzbee talks about Gov. Rick Perry being indicted for using his veto. Buzbee said it's not proper to go into a court and testify about something that someone might have done. "That's incredibly misleading, incredibly prejudicial and wrong." Cox said he was answering the questions that were asked and that this wasn't a criminal trial.
5:18 p.m., Court is back in session.
4:54 p.m., Patrick called for a 20-minute recess.
4:53 p.m., The prosecution passed the witness.
4:52 p.m., Cox said he was frustrated to stand down and that there was more he wanted to do with the investigation that he said were "important issues involving the state of Texas." Cox said he'd seen it happen too often where the federal government would sit on an investigation and nothing would happen -- and he said it appears that's what's happening now.
4:50 p.m., Talked with the U.S. Attorney's Office to try to determine if they had a path forward that did not conflict with the federal investigation. It was not clear after that meeting. After a subsequent phone call with someone at the U.S. Attorney's Office Cox said they stood down.
4:49 p.m., Cox said they knew much of what they were looking at involved Nate Paul, who they also knew was the subject of a federal investigation. Cox said they were concerned if they opened an investigation they would interfere with an ongoing federal investigation so they wanted to "deconflict" with the federal investigators before taking action.
4:44 p.m., Buzbee objects, said it's improper to admit speculation on offenses that have never been indicted into evidence. The objection was sustained so long as the offenses were marked as "possible."
4:43 p.m., Cox said they discussed whether there could potentially be a criminal conspiracy to commit the offenses or engaging in organized criminal activity.
4:41 p.m., Cox continued listing potential offenses including election code violations with regard to how money was handed over and money laundering. He added tampering with a governmental record and possible perjury related to personal financial statements, coercion of a public servant and official oppression and retaliation.
4:39 p.m., Buzbee objects, says Ken Paxton has been charged with anything and running off a list of "possible charges" is improper and it's pure speculation. Patrick overruled the objection.
4:38 p.m., Cox, listing the possible offenses: Bribery, accepting a gift to a public servant, abuse of official capacity (misuse of government property and violating a law relating to the office).
4:37 p.m., Cox said he undertook a limited, preliminary investigation where he identified possible criminal offenses. When asked who would have been the subject of those offenses, Cox said, "Primarily, Ken Paxton, but there were other individuals who were also identified as potential suspects."
4:32 p.m., At Moore's request, he spoke with Don Clemmer and lawyers representing the Mitte Foundation. After the conversation, in October 2020, he drafted up an overview of possible criminal offenses that may be avenues of investigation and set up meetings to gather more information.
4:31 p.m., In October 2020, he said he was made aware of an open records request related to Ken Paxton and Nate Paul. He was asked by Travis County DA Margaret Moore to join some meetings looking into the matter.
4:30 p.m., While at the Travis County DA's Office, Cox said he worked on investigations into public corruption.
4:27 p.m., The House Board of Managers called Greg Cox, first assistant with the Hays County District Attorney's Office in San Marcos and previously worked for the Travis County District Attorney's Office. Cox has worked in the field for approximately three decades.
4:26 p.m., Buzbee passed the witness and the prosecution declined to redirect.
4:25 p.m., Buzbee asked if Cary knew if Paxton set aside $50,000 to hire Johnny Sutton and Cary said she had no knowledge of that.
4:22 p.m., Buzbee said the AG can change the rules, though Cary said he'd have to go through an administrative process. Buzbee asked if the AG could send an email to the controller and ask for money for a contract and Cary said he had that authority.
4:19 p.m., Buzbee said no one is perfect and that people make mistakes, speaking of Paxton's affair.
4:17 p.m., Buzbee asserted that Paxton had the authority to sign the outside counsel contract. Cary agreed that she told him that he was legally OK to sign the contract. She said she told the staff afterward that she told him that.
4:15 p.m., Buzbee said Paxton had insubordinate people in his outfit and reached out to Cary to get the procedure for securing outside counsel.
4:14 p.m., Buzbee questions why Cary was talking about a woman she saw in a restaurant when he said Laura Olson never drove a red car and he questioned whether an attorneys conference was in San Antonio at the time she said. He then questioned her memory.
4:11 p.m., The witness is passed. Defense attorney Tony Buzbee begins cross-examination.
4:10 p.m., Cary said she was not a whistleblower. She says she'd filed retirement paperwork and that while she was invited to sign the letter she did not. She said she was three hours away and did not join the whistleblowers.
3:54 p.m., Cary clarifies the contract for outside counsel must either have the proper approvals or the waiver and without them, it's a violation of the process. It's not illegal, but the vendor will not be paid.
3:45 p.m., Cary said she was uncomfortable by Paxton's insistence on rejecting the recommendation of senior staff and talking to her about how to accomplish it.
3:41 p.m., Cary said that upon learning Penley and Mateer didn't want to sign it would be hard to resolve the best interest standard for the funding. She said she told Paxton it was an ill-advised approach because the senior staff thought he contract was a problem, they didn't want him to do it and that they needed to resolve that and get everyone on the same page. She said Paxton appreciated the advice but in a subsequent call had follow-up questions about how to make it happen. She said she was again firm in her recommendation that the contract was ill-advised.
3:38 p.m., Cary talked about her discussions with Paxton about how he could get the outside counsel contract signed but that the waiver had to be in writing. Cary said the standard of whether the contract met the best interest of the state in order to be funded still applied.
3:30 p.m., Cary said she told Paxton bluntly that it wasn't her business who he was sleeping with but when it boiled over into the state work it became her business and that she was having concerns about how the time and effort of the travel aides, herself and security was being spent. She said he was angry and raised his voice loud enough that it was heard through her closed door. She said he stormed off.
3:27 p.m., Cary said in a subsequent conversation with Paxton she learned his affair with Laura Olson was ongoing. She said he was upset and frustrated with her and that he still loved Miss. Olson and that he wanted to work it out with her. She said she took that to mean that the general wanted her to be more accommodating with the schedule. She said she talked to him about the ethical, legal and moral challenges and how that could impact the office.
3:23 p.m., Court is back in session.
2:58 p.m., Patrick calls for a 20-minute recess.
2:56 p.m., Cary recalled the meeting where Paxton called together staffers and, along with his wife, admitted to the extramarital affair. She said her impression was that Sen. Paxton was embarrassed and was crying. "My heart broke for her," Cary said. "I think I hugged her and told her I was sorry this had happened to her." Cary said she thought at this point that the attorney general was done with that type of behavior.
2:54 p.m., Cary said voices were never raised in that conversation. She said Paxton is a good listener and is generally very patient when dealing with confrontation.
2:53 p.m., Cary said she and Paxton discussed the risks involved in an extramarital affair and that he confirmed he was having one but not with whom. Cary said she tried to tell Paxton how it was affecting the office, including the legal risks, ethical risks and political risks.
2:50 p.m., Cary said Paxton's wife, Sen. Angela Paxton, would call about the schedule and that the staff complained of being uncomfortable having to answer questions about changes to the schedule.
2:49 p.m., Cary said travel aid JB Skees quit unexpectedly and didn't tell her or Mateer why.
2:47 p.m., Cary said a close aid complained about the hours worked that were not state business. The employee complained of odd hours, long hours and concerns over security.
2:46 p.m., Cary said there were problems with morale in the spring and summer of 2018 with travel aids, security detail and with Jeff Mateer. She said the travel detail was calling about the hours they were working and the places they were being told to go and they were concerned about the general's behavior.
2:43 p.m., Cary said she later learned Laura Olson was Paxton's girlfriend. She said she was surprised Paxton had lied to her about who the woman was.
2:42 p.m., Cary said she was at an official reception in May 2018 in San Antonio and saw the woman. She said the woman was wearing a name tag that identified her as Laura Olson.
2:41 p.m., Cary said she told Paxton what she'd heard and asked him if he knew who she was. She said he said it was a photo of his realtor who was selling a condo of his.
2:35 p.m., Prosecutor Terese Buess asks Cary about an incident at the Galaxy Cafe in spring 2018. Cary said she was alone eating lunch and a man and woman sitting nearby were having a conversation. Cary said she was concerned over something she heard in the conversation, about the level of personal detail being shared. She took a picture of the person, noted the type of car the woman left in and took it back to Paxton to talk about what she saw.
2:15 p.m., The House Board of Managers called Katherine Minter "Missy" Cary to the stand. Cary worked at the OAG for more than two decades. In her last role, she worked as the Chief of Staff from May 2016 until October 2020.
2:13 p.m., Redirect ends. The defense did not opt to recross.
2:11 p.m., Penley begins reading the list of names on the second referral that Nate Paul wanted to be investigated.
2:09 p.m., On both referrals, Penley said, include a line for a notary to affirm the person making the claim asserts the information contained within the referrals is true. Penley said Nate Paul did not swear to affirm either one.
2:07 p.m., Hardin asked Penley to confirm whether he had seen the second referral before he was terminated. He said he thought he first saw it between when he was put on leave and terminated. Penley said seeing the second referral increased his anger toward the attorney general.
2:05 p.m., Rusty Hardin begins redirect of Mark Penley.
2:05 p.m., The defense passed the witness.
2:04 p.m., Little asked Penley if he wanted to see Paxton indicted by spring break, he replied, "At that point, yes, because I believe he had broken the law."
2:02 p.m., Penley recalls a conversation with Maxwell where they discussed how they could establish more links between Ken Paxton and Nate Paul.
1:53 p.m., Little repeatedly asks, "Anything else" as Penley outlines the circumstantial evidence against Ken Paxton.
1:52 p.m., Penley said he warned Paxton about media exposure if he continues with the Paul matter.
1:50 p.m., Penley said he told Paxton that he could not and would not sign the outside contract for Cammack and that Paxton told him to talk to Jeff Mateer.
1:47 p.m., Penley said not all of the grand jury subpoenas obtained by Brandon Cammack were related to referral no. 2 and that some were related to referral no. 1.
1:45 p.m., Penley said turning over the file was consistent with rumors that Paxton was going to go around him on the Nate Paul matter.
1:44 p.m., Speaking of a voicemail from Ken Paxton to give the file and materials to an executive assistant, Penley couldn't speculate as to Paxton's thinking.
1:37 p.m., Little asked Penley why he never confronted Paxton with circumstantial evidence of bribery and the idea that Nate Paul was playing him. Penley said he began to be concerned about what was going on in Paxton's mind on or about Aug. 8. When he said he recommended closing the investigation because the metadata theory didn't prove a crime Ken Paxton began making negative statements toward him.
1:34 p.m., One of the items on the list was to call Dan Cogdell. Cogdell is a defense attorney now representing Ken Paxton.
1:30 p.m., Little asked Penley about a list. Hardin objected and wanted the record to reflect whether the witness had anything to do with the list. Penley said he didn't believe he created the document, but said he'd seen it in the discovery. The document was a list of ways they could proceed in the Nate Paul matter.
1:27 p.m., Little asked about the definition of "inconclusive," which Penley said "doesn't prove anything."
1:24 p.m., Says a call to federal authorities to ask for an original copy of a federal search warrant could have been problematic for the OAG.
"The reason I didn't do it is because Nate Paul was claiming there was a grand conspiracy between a federal judge, two federal prosecutors, at least two state agencies representative task force officers, and a number of FBI agents. Nate Paul filed a civil suit against at least 100 law enforcement agents in federal court in Austin over this and I thought to call the U.S. Attorney's office and say we have any belief that career AUSAs would be altering search warrants is crazy especially when they have an ongoing investigation that's privileged," Penley said.
"In any event, you didn't make the phone call?" Little asked.
"I did not for the reasons stated," Penley said.
1:21 p.m., Penley said he reviewed the video interview between Maxwell and Nate Paul and he agreed to another meeting.
1:19 p.m., Little asks Penley about how Nate Paul met Ronnie Saban, a task force officer with the state securities board.
Little: "How did he get the name Ronnie Saban?"
Penley: "Well, I know that he met RS because he met Ronnie Saban had been executing this search at his residence and they spoke to each other."
Little: "So, what you're saying is -- and I don't want to put words in your mouth -- Nate Paul knew Ronnie Saban was involved with the search warrant because he met him during the execution of the search warrant?"
Penley: "Yes, he had personal knowledge of Ronnie Saban because he met him during the search."
Little: "Not because Nate Paul got some secret document from someone else, true?"
Penley: "No that's absolutely false and you've misstated my testimony."
Little: "I'll object as non-responsive to everything after 'No.'"
Patrick: "Sustained."
1:18 p.m., Nate Paul alleged that the search warrant for a file storage facility had been changed after the fact. "That was Mr. Paul's allegation, yes," Penley said.
1:17 p.m., Penley agreed that if someone was changing search warrants after they had been approved and signed by a judge it would be a crime.
1:16 p.m., Little showed notes of a meeting between Nate Paul and David Maxwell. Little asked if federal investigators broke the law by not leaving search warrants behind. Penley said it's not a violation of the law, it's a violation of a procedural code, but not a law violation.
1:15 p.m., Little references an "all-caps" notation on the note that says, "Seek the truth!!" Penley said that's what Ken Paxton said, that's what he wrote down and that's what they did. Penley said he also said, "Let results be what they are." Penley again said, "That's what he said and that's what I wrote down." Little asked if Paxton asked him to interfere in an FBI investigation or obstruct justice and Penley replied to both, "Not that day, no."
1:14 p.m., Little points out where Penley wrote "Ken" in bold, and to the right of that he wrote, "He is embarrassed." Penley said Paxton was embarrassed over the lack of work done on the Nate Paul matter. He said Paxton was upset there had been no investigating done with the referral for six weeks.
1:13 p.m., Little introduced notes from Penley from a subsequent meeting with Ken Paxton on or around July 16. Penley said he'd been at the attorney general's office for about nine months.
1:11 p.m. Says he learned from discussions with David Maxwell that tampering with documents was a state issue. Notes on the referral said, "Ken just wants the truth." Penley said he wrote down what he said and at the time he believed the attorney general did want to know what happened with Nate Paul, but not later.
1:08 p.m., Penley is asked by Little about saying he wanted to "slow walk" the follow-up to the referral. When asked, Penley said he didn't tell Nate Paul, Ken Paxton or Michael Wynne.
1:07 p.m., Hardin objects after Little asks Penley about a man named Jeffrey Fudge. Penley said he didn't know who he was or what he was said to have done. Hardin objected to trying to get Penley to testify to something he had no knowledge about.
1:05 p.m. Penley is shown the referral regarding Nate Paul from the Travis County District Attorney's Office. In it, Penley said Paul claimed there were state law offenses related to altering government documents. Little asked Penley if there was a state law offense alleged in the referral. "Yes, if you believe what Nate Paul was saying," Penley responded.
1:04 p.m., Little asked Penley if he's ever testified under oath before House managers about the impeachment proceedings -- Penley said he had not but that he did give recorded testimony to investigators.
1:03 p.m., Court is back in session. Mitch Little resumes the cross-examination of witness Mark Penley.
12:05 p.m. Court is in recess for lunch until 1:10 p.m.
12:02 p.m. Little asked if Penley was concerned that he would be fired in September 2020. Penley said he was concerned in both August and September. Little asked why Penley came up with "theories" about Paxton after he was concerned that he would be fired. Penley confirmed that he and David Maxwell were concerned that Paxton was being bribed, that he owed Nate Paul money, and/or that Nate Paul had information about Paxton.
12:01 p.m. Penley was asked if it was true that there was "nothing illegal about the investigation they conducted." Penley said it was true. "Did you break any laws in conducting this investigation?" Little asked. "No, of course not," Penley said. "Were you asked to do anything illegal during the investigation?" Little asked. "Yes," Penley said, going on to explain that he was asked to obstruct a federal investigation, which is a federal felony.
11:59 a.m. Little asked Penley if he conducted an investigation. Penley said the office called it a review, and that calling it an "investigation" is semantics. Penley said he never opened a file because there was no basis for the investigation.
11:57 a.m. Defense attorney Mitch Little began questioning Penley.
11:56 a.m. Hardin passed the witness to the defense for cross-examination.
11:55 a.m. Hardin: "Would you do anything differently?" Penley: "No, I would do the same thing all over again because it was the right thing to do and the only thing we could do other than stand by silently and let crimes be committed. The agency was being abused, the laws were being abused, and the behavior and the conduct of the Attorney General of Texas was outrageous."
11:53 a.m. Penley was placed on investigative leave on Oct. 2 by Paxton. He was "illegally fired under the whistleblower statute," and given "ridiculous reasons" for the firing. According to Penley, Paxton said Penley had lost his trust, that Penley used an "insubordinate tone" when Paxton asked him to hand over his cell phone, and that Penley violated an order from the Attorney General by filing a cease and desist against Cammack to stop his subpoenas.
11:51 a.m. Penley said he attempted to stop Cammack's subpoenas because Cammack was not truly a special prosecutor but that was how he had represented himself.
11:50 a.m. Penley said the meeting lasted almost four hours. The whistleblowers sat around a conference table with two FBI agents and the whistleblowers' personal attorney. "That was four hours of personal eyewitness knowledge from people involved with the Attorney General," Penley said.
11:48 a.m. Penley said he and the whistleblowers were concerned that they would be fired but they felt like they had no other choice. "We were the only ones that could stop it, and we had to," Penley said, describing the situation as "unique but outrageous." Penley said they brought only their "personal eyewitness knowledge" to the FBI meeting and that they did not bring any documents.
11:46 a.m. "An interested party cannot be involved in serving a grand jury subpoena," Penley said. He explained that after learning about the second subpoena, he and the whistleblowers were concerned that Paul was in control of the investigation and that Paxton had turned Cammack loose and they didn't know what he was going to do. This was the point at which they decided to go to the FBI, Penley said.
11:43 a.m. Penley said he was "apoplectic" upon finding out that Cammack was serving subpoenas and using criminal process to conduct civil discovery. "I was furious that this was going on and the Attorney General was allowing it."
11:41 a.m. Penley said he still considered himself a friend to Paxton at the time of the Sept. 26 meeting. He said he was trying to walk Paxton back from a line that he was about to cross regarding the Paul investigation. He recommended that Paxton not hire Cammack as outside counsel.
11:35 a.m. During the conversation on Sept. 26, Penley told Paxton there was no state basis for the investigation, and Paxton said that indicated that Penley was biased in favor of law enforcement. Penley said it "wasn't a hostile conversation but it was a difficult conversation."
11:26 a.m. Hardin showed a document to the court referencing Rani Sabban, an investigator with the Texas State Securities Board. Penley said Paul wanted to investigate Sabban because he was there when the search warrant was executed. The document also contained the names of other individuals that Paul wanted the Attorney General's office to investigate, including a court clerk. Penley said he had no idea why Paul wanted the clerk investigated.
11:22 a.m. According to Penley, Paxton told him that Penley did not understand what it is like to have a corrupt law enforcement investigation against him.
11:19 a.m. Penley said he planned to tell Paxton in the Sept. 26 meeting that it was a "dangerous investigation" and that it was "unethical to continue" looking into Nate Paul's case. He said he felt like Nate Paul was trying to manipulate him. Penley said he told Paxton "You should not be doing this" because it made Paxton look like he was being bribed and that there would be a media frenzy if this got out. "I told him those things and many others," Penley said.
11:15 a.m. "I felt like the Lord woke me up to get ready," Penley said about waking up at 5 a.m. before the meeting in McKinney with Paxton. Penley said he was still worried that he would get fired and wanted to be prepared to go into the meeting later that day. Penley prepared several pages of notes, which were entered into evidence.
11:13 a.m. Paxton asked Penley to meet him in McKinney at 2 p.m. the following day about signing the contract. Penley and Paxton met on Saturday, Sept. 26, 2020, at a Panera Bread. The two instead went across the street to sit outside at a Dunkin' Donuts. Paxton expressed that he was frustrated because his staff was not doing what he was telling them to do.
11:10 a.m. Penley said he told Paxton that there was "no scintilla of evidence" that there was a state crime involving the warrant in Paul's case and subsequently refused to sign the contract to hire Cammack as outside counsel. Penley said Paxton had become passive-aggressive, saying that he would agree with Penley one day and then go behind Penley's back.
11:09 a.m. Penley said Paxton called him after a meeting in the White House asking that Penley approve the contract. Penley said he believed the contract was in his email inbox and that the contract had not been approved through the normal office chain of command.
11:06 a.m. Penley said on September 16, he received a DocuSign email containing a contract to hire Cammack as outside counsel. Penley said he did not sign off on the contract. He said after he did not approve the contract, nothing further should have happened with it.
11:04 a.m. "If somebody won't cooperate, that's a giant stop sign," Penley said about Paul and Wynne's behavior during the investigation.
11:02 a.m. According to Penley, Paxton said that Paul and his lawyer would not give Penley the documents because they did not trust him. Penley said he began to feel like Paxton was against him. He said after the phone call on September 14, he realized that Paxton had cut him out of the investigation entirely.
11:01 a.m. Hardin asked Penley who was privy to the conversation about acquiring the documents and how Paxton would know which documents Penley wanted. Penley said only Michael Wynne and Nate Paul were aware.
10:58 a.m. Penley spoke to Michael Wynne on September 14, 2020, about getting access to their documents. Penley said the call lasted for five minutes, and Wynne promised to get back to Penley but never did. Paxton contacted Penley two days later and asked for a list of the documents that Penley wanted to acquire from Paul and Wynne.
10:57 a.m. Penley testified that he thought Paxton was biased against law enforcement and that he was too close to Nate Paul.
10:56 a.m. Hardin continued questioning Penley.
10:55 a.m. Court resumed.
10:32 a.m. Court is in recess until 10:50 a.m.
10:31 a.m. Penley explained that he was worried that Paxton would fire him if he did not get on board with the investigation. He said he felt like Paxton was under Paul's influence, and that he was concerned that Paxton had been blackmailed or bribed.
10:29 a.m. Penley said Paxton asked which documents he wanted to obtain from Paul and Wynne, saying he would try to get the documents for Penley. Paxton said Paul and Wynne would not give Penley the documents because they did not trust him.
10:26 a.m. Penley was made aware of two applicants for outside counsel in September 2020, one of whom was Brandon Cammack.
10:23 a.m. Penley described types of evidence including physical evidence like DNA or fingerprints, documentary evidence, and eyewitness accounts. He said Nate Paul described his firsthand experience with the search warrant, which does count as evidence.
10:19 a.m. Penley said he tried to continue to investigate Paul's claims and asked to be given all of the documents that Paul and Wynne had. Penley said he reached out "six or seven times" but he was never given the documents. Penley said his inability to get the documents "affected his thought process in a major way."
10:13 a.m. Penley said in both referrals Paul made, which contained multiple accusations about multiple agencies, there are places for the documents to be notarized and for Paul to make those allegations under oath. Neither document was notarized. Penley testified to the fact that had Paul made the allegations under oath, it would have allowed him to be charged with perjury.
10:10 a.m. During the subsequent third meeting with Nate Paul on August 12, 2020, Penley said "Mr. Paul acted like we didn't understand who the real boss was." He said Paul "bowed up" to employees from the Attorney General's office, and that he was upset when Maxwell called him out for leaking information about the investigation to the media. "The Attorney General took his side and agreed that [Paul] had a First Amendment right to walk [to the media]."
10:05 a.m. Penley explained that if there are other targets in an investigation, information may be redacted, and that would change the metadata. "There are innocent functions that can change metadata that are routinely done," Penley said. He said there was evidence that such redactions occurred in Nate Paul's case, meaning that there was no evidence of a state crime. Penley said he told Paxton there was no evidence of criminal activity and recommended they close the investigation. According to Penley, Paxton said "Okay, fine," and asked that Penley meet with Paul again.
10:01 a.m. "They wanted us to agree with them on their metadata theory and agree that an assistant United States attorney had illegally, at a felony level crime, altered search warrants after they were issued by a federal judge and that two assistant United States attorneys, a federal judge, and a whole bunch of state and federal agents were in on a grand conspiracy to cover this up and target Nate Paul," Penley said.
9:59 a.m. Penley said Paul claimed that the initial search warrant was for items like guns and drugs, but after the search was underway, the warrant was changed to be for white-collar crime evidence like documents. Penley said he asked why Paul did not go file a complaint with the magistrate in Austin who signed the warrant. Penley said the fact that they did not go to a magistrate raised "red flags," for him.
9:55 a.m. Penley spoke about a second interview with Nate Paul and Michael Wynne. He said Paul and Wynne brought documents to the second interview and explained that they did not bring documents to the first, which was unusual because a complainant usually brings their evidence to an interview. Penley said the interview lasted an hour and a half.
9:50 a.m. Penley explained the process that goes into obtaining a sealed search warrant if an investigation were to take place. He said the target of a sealed probable cause affidavit is not allowed to see the affidavit until charges have been filed because they could potentially destroy evidence. Penley said there is an exception under which an agency does not have to release a sealed affidavit if a public information request is filed if there is an active investigation underway.
9:46 a.m. Penley and Paxton watched the video together, and Paxton was upset that David Maxwell was not accepting of what was being said in the interview, Penley said. Penley said Paxton did not seem to understand the legal difficulties in investigating a state agency and obtaining a warrant that was under seal at the federal courthouse. Penley said Maxwell made sound points during the interview about where Nate Paul could go to find relief.
9:42 a.m. Paxton asked Penley to view a video of an interview with Nate Paul, his attorney, and David Maxwell that was recorded on July 23, 2020. Hardin asked Penley if Paxton had asked him to review similar cases, and Penley said he had, one in the Panhandle and one in Bexar County. "Did [Paxton] have any further involvement after asking you to look at [the two cases]?" Hardin asked. "No, sir," Penley said.
9:38 a.m. Penley said he was concerned that Paxton was asking them to investigate a state agency, the same agency that was also investigating Paxton.
9:36 a.m. When speaking about the suggestion that a search warrant for Nate Paul had been altered after it was signed by a judge, Penley said, "It was craziness."
9:35 a.m. "Speaking for myself, I thought it was crazy, and I was hoping the attorney general would drop it. He didn't," Penley said. "The idea that the State Attorney General's office would go investigate the federal courthouse, investigate federal agents, and also state agents that were task force officers on the raid... that we would investigate a federal magistrate judge and federal prosecutors was insane. That is something that can be handled by federal authorities, and there is no easier way for state authorities to investigate the type of complaints that Paul was making."
9:33 a.m. Penley said Paxton came to him on July 6, 2020, and asked about the status of Nate Paul's referral. He wanted to know why nothing had been done with the referral since it was shown to Penley in June. "David Maxwell and I saw no merit to the complaint," Penley said.
9:31 a.m. Penley was made aware of a referral when it was shown to him by Jeff Meteer. Penley said he had heard the story before, and that the referral was signed by Nate Paul. Penley said he and David Maxwell both read the referral, after which Meteer, Maxwell, and Penley discussed the document and how to proceed. "My initial reaction was, 'This is crazy'," Penley said. "We hoped to slow-walk it and see if the Attorney General would drop it."
9:29 a.m. Hardin asked Penley about staff meetings and who was in attendance. Penley said that the deputies were present, and other individuals may be present as well. Hardin asked if Drew Wicker was ever in attendance, and Penley said he was.
9:26 a.m. After the phone call with Nate Paul, Penley said Paxton indicated that he was distrustful of law enforcement and said that he, too, had been the subject of a corrupt criminal investigation.
9:25 a.m. "I thought, 'Why is the attorney general involved in this? Why is he wanting me to know about this? This was not a state matter from what I could tell. I thought it was very suspicious that someone who was the target of a federal investigation was reaching out to the attorney general for help,'" Penley said about his reaction to the phone conversation with Nate Paul.
9:23 a.m. The defense objected to the line of questioning about the phone call with Nate Paul on the grounds that it was hearsay. Patrick overruled the objection.
9:20 a.m. In December 2019, Penley met with Ken Paxton in a coffee shop in Highland Park Village in Dallas, after which the two walked out to the car where Paxton told Penley that they needed to call a friend who had several search warrants executed on his home. That friend was Nate Paul.
9:18 a.m. Penley came to work with Ken Paxton in the Attorney General's office in 2019. He said at the time that he was hired, he had never heard of Nate Paul. He was made aware of Nate Paul in December 2019.
9:17 a.m. Penley worked as a federal prosecutor in the U.S. attorney’s office for the Northern District of Texas. He described the type of cases he worked on, including terrorism cases, and insurance fraud cases, among others.
9:14 a.m. Penley went to the United States Air Force Academy and went to law school at the University of Texas at Austin. Penley went on to work at Strasburger & Price at the same time as Ken Paxton. He said the nature of their relationship was friendly and that they had similar political views.
9:13 a.m. Penley said he was always interested in politics, and when asked by Hardin, said that he had never voted for a Democrat. He said that he "might have voted for a judge" who was a Democrat.
9:11 a.m. Penley explained that he was a Christian and how his relationship with Jesus guided his decisions. He described an experience with evangelist Billy Graham that helped to solidify Penley's relationship with Christ.
9:10 a.m. Penley, who grew up in Denton, gave a brief description of his background. He is 69 years old and went to Denton High School. He was also an Eagle Scout, a football player, and president of the student council.
9:09 a.m. Penley entered the courtroom.
9:08 a.m. Prosecutors called Mark Penley as their first witness on Monday.
9:06 a.m. Patrick reminded the prosecutors and defense attorneys of the time remaining and discussed the plan for the days ahead.
9:05 a.m. Court began with a prayer led by Sen. Brian Birdwell from District 22. Birdwell, who was in the Pentagon on September 11, 2001, then delivered a few remarks about the terrorist attacks.
9:02 a.m. Patrick asked for a moment of silence to be held in remembrance of those who died in the terrorist attacks on September 11, 2001.
9:00 a.m. The Senate was called to session and Lt. Gov. Dan Patrick entered the chamber. The jury was then called into the chamber.
WHY IS PAXTON ON TRIAL?
The Republican-led Texas House of Representatives voted overwhelmingly in May to impeach the attorney general, largely based on his former deputies' claims that he used his power to help a wealthy donor who reciprocated with favors including hiring a woman with whom Paxton had an extramarital affair. The 20 articles of impeachment brought forth by the Texas House include allegations of abuse of public trust, unfitness for office and bribery. The Texas Senate is holding four of the articles in abeyance because they are largely related to the 2015 criminal charges where Paxton has been accused of felony securities fraud. Paxton has pleaded not guilty in that case but so far there has been no trial.
If convicted in the impeachment, Paxton would be removed as attorney general and could be barred from holding future elected office in the state.
THE LATEST IN THE KEN PAXTON IMPEACHMENT TRIAL
Below are some of the headlines from the historic nine-day impeachment trial.
KEN PAXTON IMPEACHMENT TRIAL
What to know about the historic impeachment of Texas Attorney General Ken Paxton.
