Ken Paxton’s ‘incredibly dangerous’ behavior forced staff to go to FBI: Impeachment witness

September 11, 2023 07:14 PM

AUSTIN, Texas — Ken Paxton‘s former lead prosecutor described attempts by top-ranking staff in 2020 to protect the attorney general from making an “outrageous” mistake by getting involved with real estate developer Nate Paul.

Mark Penley, the attorney general‘s former criminal justice deputy, testified in the impeachment trial before the state Senate on Monday that he and seven other employees went to the FBI on Sept. 30, 2020, because they were powerless to stop Paxton from misusing state resources and they wanted to protect themselves from being associated with unflattering allegations, should that information become public knowledge.


“The agency was being abused, the laws were being abused, the behavior and the conduct of the attorney general of Texas was outrageous,” Penley said. “I’d do the same thing all over again because it was the right thing to do and the only thing we could, other than stand by silently and let crimes be committed.”

Penley and seven attorney general office employees went to the FBI together and shared over the course of nearly four hours their experiences working with Paxton and why they were concerned about ethical and legal violations related to Paul.

“I feared we would get fired,” Penley said. “We all knew this was an incredibly dangerous and unique but outrageous situation. We were the only ones who could stop it, and we had to.”

Texas Attorney General Impeachment
Mark Penley, former deputy attorney general, testifies during day five in the impeachment trial for Texas Attorney General Ken Paxton.

Eric Gay/AP

The employees did not bring any physical evidence, which Penley told House prosecutor Rusty Hardin was not unusual for a first-time encounter with law enforcement.

Penley said his concerns with Paxton began in late 2019 when Paxton asked him to join a phone call in which Paul proceeded to explain to them why he believed the federal government had wronged him.

The FBI had recently searched Paul’s residence after obtaining a search warrant signed off by a federal magistrate. Paul claimed that when the federal agents searched his house and came up short of the drugs and guns that they had cited as the basis of their search, they broke federal law and changed the warrant to be about a search for documents.

Paxton was on board with Paul’s request despite how unusual and potentially illegal for a state attorney general to investigate something that the federal government and state police had been involved in. Paxton was empathetic to Paul for how he said they had both been victims of law enforcement.

“He made comments to me that indicated he was very mistrustful of law enforcement. … He said, ‘I’ve been the subject of a corrupt investigation,'” Penley recalled. “I thought he was misguided. I thought he was biased against law enforcement to his detriment.”

In 2015, Paxton was indicted on three felony securities fraud charges, which involved the Texas Department of Public Safety that he said he had grown to dislike because of how he believed they had targeted him.

Penley and his colleagues were pressured to get with Paul and look into the matter but were unable to get documents and evidence from Paul and his associates during the summer of 2020.

“We had absolutely no scintilla of evidence that any criminal activity had occurred on the part of the federal agents, estate agents, the federal prosecutor, or the federal judge,” Penley said.

Penley told Paxton that moving forward and helping Paul would make for a “very dangerous investigation” because Paul was his friend and had donated money to his campaign. Helping him out in an unprecedented way would “look like bribery.”

“I said, ‘Ethically, Ken, I can’t proceed with this investigation. And I’m the senior prosecutor in the agency. If it’s not right for me to do it, it’s not right for me to delegate it to anybody else,'” Penley said.

Paxton was upset by Penley’s response but appeased Penley in the moment and did not protest his decision. Penley said Paxton could be “passive-aggressive,” and when he did not get the response he wanted from Penley that day, Paxton went about it on his own.

Paxton hired outside lawyer Brandon Cammack to investigate the FBI under the guise of the attorney general’s office and then tried to pay Cammack $50,000 in state funds for his work in the first two weeks. Penley refused to pay or oversee Cammack’s side efforts, so Paxton agreed to preside over Cammack’s investigation.

Cammack quickly issued subpoenas for two regional banks to turn over information about the FBI investigation into Paul. Penley and other whistleblowers were shocked that the nongovernmental lawyer had issued criminal subpoenas in a civil case, he said.

“I was even more apoplectic. I was furious that this was going on, and the attorney general was allowing it,” Penley said. “This had to be stopped. The attorney general obviously wasn’t listening to anybody. He had turned Mr. Cammack loose. We didn’t know what Mr. Cammack was going to do. It appeared that Mr. Paul was controlling this.”

When Penley refused to sign off on the state’s reimbursing Cammack for his legal fees, Paxton was furious.

“He said, ‘You don’t know what it feels like to be the target of a corrupt law enforcement investigation,'” Penley said, referring to comments Paxton had made to him. “‘I spent $50,000 on my case, things of that nature.'”

Paxton also made disparaging comments to Penley, specifically about Texas DPS, who he claimed ran a “corrupt” investigation into his securities fraud charges. His distrust for law enforcement, Penley said, fueled his desire to help Paul, who maintained he was also a victim of the police.

Penley was the fifth witness to testify since the trial began Sept. 5. The Senate is expected to decide starting later this week on the 16 articles of impeachment that Paxton faces for corruption and other abuses while in office. Paxton has pleaded not guilty to all charges.

Texas Attorney General Impeachment
Members of the public arrive for the afternoon session during day five of the impeachment trial for Texas Attorney General Ken Paxton in the Senate Chamber at the Texas Capitol.

Eric Gay/AP