Texas S. Ct. Refuses to Block “Gag Order” on Senators Judging Impeachment of Attorney General Paxton

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From Texas Supreme Court Justice John Devine’s dissent from denial of petition for writ of mandamus today in In re Hotze:

In our republican form of government, the relationship between citizens and their political representatives is sacred and constitutionally protected. “[T]he people are the sovereign,” but they express their will and govern through their duly elected representatives. For that to happen, our elected representatives must be free to communicate and share information with their constituents. The freedom of political dialogue and association is of such “transcendent importance” to “the maintenance of democratic institutions” that the Texas Constitution expressly guarantees the right to speak, to assemble, and to petition our government. These bedrock principles of freedom are the foundation of an enduring democracy.

But at a historic moment for our great state, these rights are imperiled by rules adopted in connection with the impending impeachment trial of Warren Kenneth Paxton, Jr., the third-term Attorney General of the State of Texas. In an unprecedented move, the Senate, sitting as the “Court of Impeachment,” has adopted Rule of Impeachment 10, which broadly prohibits political representatives from talking to their constituents about “any matter relating to the merits of the proceedings before the court of impeachment.” In a corollary measure, Rule 10 also requires the presiding officer of the impeachment court to issue a “gag order.” The presiding officer has complied by issuing an extremely broad suppressive order that threatens representatives with contempt, criminal confinement of up to six months, and monetary penalties. In effect, if not by design, the gag order chills our representatives from engaging in constitutionally protected attributes of our government….

Our Constitution grants an “inviolate” right to “speak … on any subject.” At the very core of this protection lies political expression. Speech between constituents and their representatives about the merits of impeachment and removal is undoubtedly political. In many ways, it is archetypically political.

A robust defense of this important right requires courts to view any restraint of political speech with a strong and healthy dose of skepticism. If a restraint amounts to a “pre-speech sanction” or “prior restraint,” it is “presumptively unconstitutional.” Orders forbidding speech activities before the communications occur—including gag orders—”are classic examples of prior restraints.” Because gag orders “rest at the intersection of two disfavored forms of expressive limitations”—prior restraints and content-based restrictions—they “warrant a most rigorous form of review.” And when a content-based, prior-restraint rule or gag order is imposed on political representatives participating in an impeachment trial, it must be examined with even greater scrutiny and care to ensure no improper infringement on the representatives’ freedom to speak to and communicate with their constituents. In other words, the fundamental process that undergirds our representative government must be protected under the strictest scrutiny.

Although the Court has never addressed a prior-restraint rule or gag order restraining political speech in an impeachment context, we have adopted a test for gag orders in civil judicial proceedings. In that context, a gag order “will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the [gag order] represents the least restrictive means to prevent that harm.” Neither Rule 10 nor the gag order satisfies this standard, let alone the more rigorous standard that should apply to prior restraints on political speech and discourse between the people and their elected representatives.

As to imminent and irreparable harm, the presiding officer found: (1) there has been “extensive publicity” and out-of-court inflammatory and prejudicial statements; (2) the individuals that made these statements “will likely continue to make public prejudicial and inflammatory statements” and there is a “substantial likelihood that members may be inadvertently exposed to prejudicial publicity”; (3) because the jury is set by the Constitution without a jury pool, “any prejudicial bias that occurs would irreparably taint the impartiality of the court”; (4) if members of the court are exposed to these types of statements, “it could impact the member’s ability to render a fair and impartial verdict”; and (5) “there is a substantial likelihood that members’ initial opinions may not be set aside.” None of these findings justify the overly broad gag order.

An impeachment trial will inevitably generate extensive publicity, media coverage, and news. That is true. But “[p]rominence does not necessarily produce prejudice”; “juror impartiality … does not require ignorance“; and unlike conventional jurors, political representatives are accustomed to publicity, inflammatory statements, and controversy. Indeed, politicians frequently engage in the rough and tumble of political life, sifting through and ignoring inflammatory statements to make tough decisions despite controversy or political headwinds. The presiding officer’s findings do not account for the nature of an impeachment proceeding and the political character of that court and its members. In my estimation, the findings and evidence don’t come close to supporting the conclusion that “an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute.” Abstract fears and rank speculation do not justify a prior restraint of this magnitude.

Nor does the public record support the conclusion that the sweepingly broad gag order represents the least restrictive means to prevent any such harm. The presiding officer found that, without the gag order, “there is a substantial likelihood that members may be inadvertently exposed to prejudicial publicity” and “individuals involved in the trial of impeachment will likely continue to make public prejudicial and inflammatory statements.” But without any supportive findings or evidence, the gag order applies indiscriminately to “[a]ny member of the court; member of the House of Representatives; party to the trial of impeachment; witness in the trial of impeachment; or attorney, employee, or agent of any of those individuals.” There are no findings justifying wholesale restrictions on each category of covered individuals.

In addition, the evidence of “inflammatory statements” pertained only to a single “potential witness,” a single member of the House Board of Managers, the board’s attorneys, and the Attorney General’s attorney. The gag order simply assumes—without any evidence at all—that all covered individuals, including parties, lawyers, witnesses, and members of the impeachment court—are identically situated and just as likely to “continue to make public prejudicial and inflammatory statements.”

Most disconcertingly, however, is the breadth of Rule 10(b) and the gag order in what type of speech is prohibited. The rule sweeps far beyond legitimate restraint by broadly prohibiting any “discuss[ion] or comment” to individuals not participating in the proceedings “on any matter relating to the merits of the proceedings.” The gag order’s vaguely articulated and facially overbroad prohibition on extrajudicial statements is just as troubling. “Gag orders should be a last resort, not a first impulse,” and the findings and mandamus record here do not demonstrate any attempt at less-restrictive alternatives.

Ultimately, the primary effect of Rule 10 and the gag order is to prevent political representatives from fulfilling their duty to communicate with their constituents about a vital—and historic—political matter of immense public concern. These impossibly broad restrictions on political speech are inconstant with standards we have used in less consequential circumstances and, in my view, are repugnant to the Constitution….

Justice Devine also criticizes a separate impeachment rule, under which Paxton’s wife, a state senator, is recused from the proceedings:

Additionally, in Rule of Impeachment 31, the Senate prohibits the “spouse of a party to the court of impeachment” from “vot[ing] on any matter, motion, or question, or participat[ing] in closed sessions or deliberations.” Though not specifically stated, Rule 31 automatically disqualifies the representative for Senate District 8—Senator Angela Paxton—from participating and voting in the impeachment trial because Attorney General Paxton is her husband….

Under our Constitution, an impeachment proceeding is, by its nature, political in the republican sense of that word: representative. Article XV of our Constitution, which governs impeachment proceedings, does not place the impeachment power in the hands of the judiciary or individuals chosen by state-wide elections or random lot. Rather, the powers to impeach, try the impeachment, and remove certain officers rest with the bicameral branch of government composed of members who represent the people of local districts.

If the House of Representatives votes to impeach one of these officers, including the Attorney General, the impeachment “shall be tried by the Senate,” which “shall consist of thirty-one members.” Although the trial is political in nature, the Constitution prescribes the method for assuring it is impartial: “When the Senate is sitting as a Court of Impeachment, the Senators shall be on oath, or affirmation impartially to try the party impeached, and no person shall be convicted without the concurrence of two-thirds of the Senators present.”

Here, however, the Senate has deprived the people of one district—Senate District 8—of any representation in the upcoming political impeachment trial, regardless of whether their senator is “on oath, or affirmation impartially to try the party impeached.” Impeachment Rule 31 requires that “[a] member of the court who is the spouse of a party to the court of impeachment” is considered present for calculating votes but is not “eligible to vote on any matter, motion, or question, or participate in closed sessions or deliberations.” Because Senator Paxton’s spouse is the subject of the impeachment trial, Rule 31 automatically prohibits her from voting and participating in the impeachment trial.

Legitimate concerns undeniably exist about a senator’s ability to neutrally participate and vote in the impeachment trial of a spouse. Anyone who has taken marriage vows would understand why a political representative may be unable to take an oath or affirmation of impartiality or to participate and vote impartially in that situation.

But similar concerns also may exist about senators’ impartiality when they have partisan or financial interests in the results of an impeachment trial, as the relators allege of other senators who have not been excluded from participating and voting as a juror in the trial. But in either circumstance, Article XV constitutionally commits the question of impartiality to each individual senator in deciding whether to take the oath or affirmation and if so, how to participate in an impeachment trial while remaining faithful to that oath or affirmation. Each senator will be accountable to his or her electorate for that decision. But Article XV does not provide for senators representing people in other districts to collectively make that decision for an individual senator.

In adopting Rule 31, the Senate improperly looks beyond Article XV for authority to exclude Senator Paxton from participating in the impeachment trial as a representative of Senate District 8’s constituents. Rule 31 declares that “[a] member of the court who is the spouse of a party to the court of impeachment” has “a conflict pursuant to Article III, Section 22, of the Texas Constitution.” That provision of the Constitution provides that “[a] member who has a personal or private interest in any measure or bill, proposed, or pending before the Legislature, shall disclose the fact to the House, of which he is a member, and shall not vote thereon.” But given its placement in Article III—”Legislative Department”—and reference to “any measure or bill,” Section 22 does not apply when the Senate is acting in a judicial, rather than legislative, function as a “Court of Impeachment” under Article XV, Section 2. When the Senate engages that function, Article XV provides the more specific—and only—recusal rule.

While the Senate is generally authorized to “determine the rules of its own proceedings,” that does not give the legislative body carte blanche to contravene specific provisions of the Constitution. Because Article XV speaks directly and expressly to recusal of senators from impeachment proceedings, the Senate cannot adopt different rules. And it certainly cannot do so when said rules exclude an entire populace from political representation in the impeachment process by preventing their elected representative from participating in impeachment proceedings for reasons other than those stated in the Constitution….

Justice Devine closes:

An impeachment trial is unlike any other proceeding in our republican form of government. By constitutional design—and unlike conventional judicial trials—it’s necessarily political. Representatives of the people of local districts are tasked with the responsibility of sitting as a court on their constituents’ behalf to try the impeachment and determine whether a public officer should be removed from office. While the Senate has wide latitude in how it conducts the impeachment trial, those proceedings must nonetheless comport with our Constitution. Because the gag order and Impeachment Rules 10 and 31 fail to do so, I would grant mandamus relief. I respectfully dissent.

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