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Op-Ed | Slate | June 11, 2024

The Worst Possible Trump Attorney General Is the One He’d Be Likeliest to Pick

2024 ElectionExecutive BranchState Attorneys General

This article was originally published in Slate. Read on the original site here.

Donald Trump’s Department of Justice was a nightmare. Jeff Sessions, Trump’s first attorney general, dismantled civil rights and civil liberties protections, instituted heinously cruel border policies, and vociferously attacked the right to vote. William Barr, Sessions’s ignominious successor, then used his time at DOJ’s helm to overtly weaponize the department against voters and Trump’s political opponents.

Corruption and cruelty defined Trump’s DOJ and his approach to public service overall, and he has now identified someone who could immediately make a second Trump DOJ even worse: Texas Attorney General Ken Paxton.  

Paxton’s stewardship of the Texas AG office shows that he holds little regard for the public interest or for strictures of law or the Constitution. 

His politicization of state government is unmatched. Paxton has routinely refused to represent or defend other parts of the Texas government, despite an unambiguous mandate that the AG do so. Even as Paxton has directed public resources to support his friends at rightwing influence shops, he has forced state agencies to direct taxpayer dollars toward outside counsel to defend themselves against litigious firms, some of which also number amongst Paxton’s own biggest donors.   

Paxton has also fought to establish a dubious culture at the Texas AG aimed to “slant legal work, reward loyalists and drum out dissent,” as the Associated Press reported last year, while functionally pushing out the office’s most experienced lawyers. Hallmarks of this culture include Paxton’s interference in investigations into his friends and political allies, bogus investigations of the political enemies of his donors, and retaliatory firings of whistleblowers within his office.

The firings prompted a multi-million dollar settlement that Paxton then tried to force taxpayers to finance. What’s more, the revelations led 121 Texas State House members (including 60 Republicans) to vote for his impeachment, though he was later acquitted by the State Senate. Far from a vindication, the acquittal can be at least partially attributed to Paxton’s billionaire allies’ pressure campaign on state senators amidst the proceedings. Earlier this year, Paxton also settled a long-running set of securities fraud charges brought by state prosecutors. Even still, Paxton remains under investigation by the FBI for similar charges, including wire fraud, witness retaliation, and bribery. Paxton also continues to face the threat of disciplinary measures—including potential disbarment—for his role in attempting to overturn the 2020 presidential election.

Paxton’s enthusiastic wielding of the Texas AG’s office as a political weapon provides a chilling foreshadow of a second term Trump DOJ. Indeed, the Paxton playbook for attorney general is already accessible thanks to the Heritage Foundation’s now-infamous Project 2025. Riddled with right-wing conspiracies, the DOJ section is explicit in its calls to gut the department, install partisan agents to implement highly politicized agendas, target marginalized communities, and establish a punishing standard of unquestioned fealty to the president. 

Also included in the chapter are proposals to shield state and local law enforcement bureaus from federal oversight for abuses of power, institute callous, unconstitutional immigration policies, and “prioritize” DOJ’s investigation of “violent” crime by sabotaging the department’s white collar, corporate, and environmental crime units. Unsurprisingly, Project 2025’s architects plan to turn the FBI into (even more of) a hyper-partisan shop dedicated to protecting white supremacists and far-right agitators while targeting and intimidating popular protest movements and activists from the left, e.g. the climate movement, the Black Lives Matter Movement, and the Palestinian solidarity movement. 

Paxton has his own clear motivations for remaking the FBI, given its yearslong probe into his misdeeds, but there’s other reasons to believe he would be the implementer of choice for many of these priorities. One is his close relationship with Gene Hamilton, who authored Project 2025’s DOJ section. The pair have shared Heritage Foundation panels, and Hamilton even reported having multiple conversations with Paxton while crafting some of Trump’s most hateful immigration policies, including the memo that gutted DACA, which was ultimately overturned by the Supreme Court. More recently, they’ve interacted through America First Legal, where Hamilton serves as Executive Director, Executive Vice President, and General Counsel. AFL and Paxton have been partners on a number of suits since its founding in 2021, including several seeking enforcement of the Trump-era immigration ban known as Title 42, and others seeking to end (or severely limit) legal immigration pathways. 

Paxton has also spent years courting Trump’s favor and flaunting the depths of the unquestioned loyalty he is willing to offer the former president. Sessions was famously fired for being insufficiently loyal (i.e. not interfering in investigations into Trump).Trump similarly conspired to ax Barr after he refused to peddle election conspiracies and aid in Trump’s coup attempt, but Paxton has demonstrated continuously that he has no such ethical, political, or constitutional qualms. 

By contrast, Paxton led a coalition of Republican attorneys general in a 2020 lawsuit attempting to disenfranchise voters in Pennsylvania, Georgia, Michigan, and Wisconsin to overturn the election. In 2021, he was among the speakers at the January 6th rally that soon after invaded the Capitol. He then spread baseless conspiracies denying the realities of the insurrection that he helped goad. This year, Paxton was seated front and center in support of Trump during the Manhattan hush money criminal trial that ultimately found the former president guilty of all 34 felony counts.  

Paxton’s defense of Texas’ brazenly unconstitutional SB4, which aims to overturn 150 years of federal immigration law, is another obvious example of his desire to impress the former president. SB4 has essentially sought to vest local and state-level police (and other officers) with novel criminal border enforcement authorities that encourage racial profiling and entirely ignore the rights of migrants as enshrined in federal law. The insane cruelty of the policy is part of this audition, to be sure, but so too is Paxton’s invention, and full-throated defense, of blatantly unfounded legal theories to accomplish it. Even Texas’ own Solicitor General acknowledged that Texas may have gone “too far” with SB4, which Paxton quickly and vehemently denied and rejected. 

What Paxton is demonstrating here, in no small way, is that he requires not even a mirage of legitimacy—nor of legality—to institute and enforce political agendas and their policy priorities; he’ll just do it, and see what sticks. That willingness continues to have deadly consequences for people in Texas, including the migrants being murdered by the Texas National Guard’s inaction or by Greg Abbott’s illegal razor wire in the Rio Grande. 

Nationally, it bears noting that Donald Trump had substantial, rather than blanket, cover from the DOJ last time around, and the potential of what he might do with complete subservience from the DOJ—if given the chance—is grim indeed.

2024 ElectionExecutive BranchState Attorneys General

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