Ken Paxton Impeachment Trial | Whistleblower: AG pushed for donor's 'insane' theories

AUSTIN, Texas - The impeachment trial of suspended Texas Attorney General Ken Paxton continued Monday with a whistleblower testifying that Paxton donor Nate Paul acted like he was the real boss of the AG's Office.

Mark Penley, the former deputy over criminal justice for the Office of the Attorney General, talked about phone calls and meetings with the AG about Paul.

In a meeting with Paxton and Paul, Penley informed the office would not investigate any further his claims.

"Mr. Paul acted like we didn't understand who the real boss was. It wasn't the attorney general, it was him. That was his body language, that was the expression on his face, the way he bowed up. He got very unhappy with us," said Penley.

Paul wanted the Attorney General's Office to look into his allegation, that laws were broken during the search of his business and home by state and federal authorities.

Paul wanted the AG's Office to investigate troopers, FBI agents, an assistant U.S. attorney and a federal judge.

Mark Penley said he and former AG Law Enforcement Director David Maxwell, who testified Friday, decided to "slow-walk" the investigation, hoping Paxton would drop it because he thought it was "crazy."

"The idea that the State of Texas Attorney General's Office would go investigate the federal courthouse, investigate federal agents and also state agents who were task force officers on the raid and those were agents from the DPS and the state securities board, that we would investigate a federal magistrate judge and federal prosecutors was insane," said Penley.

Penley testified that Paxton kept pushing for Paul's claims to be investigated.

"I asked him why he was so interested in this investigation when he was not interested in all the other criminal investigations we had pending in the office," said Penley.

[ATTORNEY: "Alright, what was his response?"]

"His response was, I don't know about all the other cases, but I know about this one and I'm concerned about corrupt law enforcement because I know what has happened to me," said Penley.

The alleged comments were in reference to Paxton's 2015 indictment on securities fraud charges, which are still pending to this day.

Penley told the court he met the attorney general at Paxton's request at a Dunkin' Donuts in McKinney on Sept. 26, 2020.

That's when he learned Paxton had contracted Brandon Cammack as outside counsel another extraordinary move to push forward Nate Paul's claims.

"He was frustrated and that was the most, it wasn't a hostile conversation, but it was a difficult conversation," said Penley.

[ATTORNEY: "How did the conversation end?"]

"I was trying to walk him back from what I thought was a dangerous line he was trying to cross, and I told him all my reasons that he could face criminal charges, bribery, other things. It could be a media scandal, he could get himself in a lot of trouble he needed to leave this alone to back away from it," said Penley.

On cross exam Paxton attorney J. Mitchell Little focused on Penley and Maxwell "slow-walking the investigation."

"Ken Paxton was upset with you because in six weeks you and David Maxwell had done nothing, donut, true?" questioned Little.

[PENLEY: "Which part of the question do you want me to answer first? You asked me if we had it for six weeks, that is true, and it is also true that we had done no investigating in that six weeks."]

Little also challenged what proof Penley had that Paxton had done anything wrong.

"On Sept. 26 did you have any physical evidence, documentary evidence, eyewitness evidence or circumstantial evidence that Ken Paxton had committed or been bribed by Nate Paul?" asked Little.

[PENLEY: "I had circumstantial evidence"]

"Anything else?" Little probed.

[PENLEY: "I had his behavior."]

"Anything else?" Little asked again.

[PENLEY: "The campaign donation."]

"Anything else?" Little asked a third time.

[PENLEY: "His absolute refusal to listen to common sense and reasonable legal positions he wouldn't listen to anybody on the executive staff."]

Another staffer, Missy Cary, testified Monday afternoon about the Paxton affair and how it hurt morale in the Attorney General's Office.

Lt. Gov. Dan Patrick says testimony could end Thursday. Each side will get one hour for closing statements.

Senators will stay in Austin and deliberate through the weekend if necessary until they come to a decision.

You can watch complete coverage of the trial on FOX4News.com and FOX 4's YouTube channel.

Large portions of the trial will also be available on FOX LOCAL along with highlights and analysis.

Live Blog

6:51 p.m. | The trial has adjourned for the day. Lt. Gov. Patrick says the House Impeachment managers have 9 more hours of testimony. The defense has 12.

6:42 p.m. | Moore says Paul's accusations were "dead on arrival" when it arrived at her office.

6:35 p.m. | Moore reads a letter to Paxton saying the district attorney's referral was not a suggestion saying that Paul's claims should be investigated. It also says the Travis County District Attorney's Office closed its look into those claims.

6:09 p.m. | Tony Buzbee lists off alleged FBI abuses to Moore. The defense has been trying to build the case that the idea of investigating the FBI should not have been enough to dismiss Paul's claims.

6:06 p.m. | Moore says there is no way Cammack could be interpreted as an employee of the Travis County District Attorney's Office.

6:03 p.m. | Moore testifies that Brandon Cammack was never hired by her office and that outside of getting his grand jury subpoenas, the Travis County District Attorney's Office did not aid Cammack.

5:58 p.m. | Moore said while the Travis Co. District Attorney's did refer the case, she did not call for a criminal investigation into Nate Paul's claims. "I didn't want David Maxwell to think I didn't have the good enough sense to know this was ridiculous," Moore said.

5:50 p.m. | Moore said she referred the case to the AG because she did not want to offend Ken Paxton.

5:48 p.m. | Moore said when learning of the allegations made by Paul the Travis County District Attorney's Office had no intention of investigating.

5:41 p.m. | Moore said despite being a Democrat and Paxton being a Republican she considered him a friend and that Paxton helped the Travis County District Attorney's Office when asked.

5:34 p.m. | Cox is dismissed. Now the House impeachment managers call former Travis County District Attorney Margaret Moore.

5:27 p.m. | Paxton defense lawyer Tony Buzbee digs into Cox for the memo talking about the investigation into Paxton's possible crimes.

5:19 p.m. | North Texas Rep. Jared Patterson draws some differences between the Paxton impeachment and the Trump impeachment.

4:55 p.m. | Cox lists possible crimes he was looking into involving Paxton.

4:42 p.m. | Gregg Cox, the former Travis Co. District Attorney's Office Director of Special Prosecutions, is now testifying.

4:09 p.m. | Cary retired from the OAG ahead of the whistleblowers going to law enforcement. Cary said she had already planned to quit the office. Now the defense is beginning questioning.

4:06 p.m. | Cary said more than 50% of the deputies time was spent discussing matters concerning Nate Paul.

4:03 p.m. | Cary said in her decades of experience in the Attorney General's Office she had never seen an attorney general so focused on issues involving one person.

4:00 p.m. | Cary describes the chaos in the office when they learned that Cammack had issued subpoenas on banks in the investigation of Nate Paul.

3:40 p.m. | Cary is now discussing confrontations over the Brandon Cammack contract.

3:30 p.m. | State Senator Angela Paxton takes notes while Missy Cary describes finding out that her husband's affair had continued. Senator Paxton is required to attend her husband's trial, but is not allowed to vote.

3:25 p.m. | Cary says she deleted a photo of Olson at the request of Attorney General Paxton.

3:12 p.m. | The trial is on a break. Watch Mark Penley's intense testimony from this afternoon:

2:57 p.m. | Cary says her duties changed at General Paxton's request. She said she understood it to be because she said no to the Attorney General too many times.

2:56 p.m. | Cary says in 2018 Paxton met with staff. She says he admitted to and apologized for his affair. She says Angela Paxton was crying during the meeting. "My heart broke for her," Cary said.

2:52 p.m. | Cary says she spoke with Paxton about his affair and that he confirmed that he was having one.

2:49 p.m. | Cary testifies that Paxton's wife, Angela, often called asking about his whereabouts. The state senator is in attendance at the trial.

2:47 p.m. | Cary says Paxton's bagmen were giving complaints about hours worked for non-state business.

2:40 p.m. | Cary is describing her discovery of Laura Olson. The defense identified Olson in their opening statement as Paxton's mistress.

2:36 p.m. | Missy Cary, the former Office of the Attorney General Chief of Staff, is now on the stand. 

2:12 p.m. | The prosecution reads a list of the names of people Paul wanted to be investigated. They include attorneys involved in lawsuits against him and judges.

2:05 p.m. | The defense passes the witness after reading a note from Penley saying "[Ken Paxton] must be indicted by Spring Break."

1:55 p.m. | A fiery back and forth between Penley and Little over thoughts about potential bribery. Little says Penley did not have any evidence. 

1:39 p.m. | The defense pushes Penley again on if he intended to investigate Paul's claims. Penley counters that Paul and his lawyer had not given him all the documents they said they had acquired.

1:37 p.m. | The defense is going with a similar line of questioning as with previous witnesses. Penley is being questioned about why they did not confront Paxton about concerns earlier in the process.

1:22 p.m. | Penley says calling the feds asking for the original warrant for Nate Paul "problematic." The defense pushed back against the claims that a phone call would do damage. Penley testified that a call would not be harmful, but a call about the Paul situation, where he claimed a conspiracy among the feds and state agencies, could be. 

1:08 p.m. | Testimony begins after lunch. The defense criticizes Mark Penley for testifying he "slow-walked" the investigation into Paul's claims.

12:07 p.m. | The trial is on break for lunch. Here are some of the key moments from the prosecutions questioning of Penley this morning:

12:05 p.m. | The defense asks Mark Penley what illegal activity he had been asked to do. Penley responds that he believes the AG's office had been asked to obstruct a federal investigation.

11:55 a.m. | Penley testifies that he would not do anything differently if he was given another opportunity. "It was the right thing to do and the only thing we can do other than stand by silently and let crimes be committed," he said.

11:48 a.m. | The House managers argue that the experience that the whistleblowers gave to the FBI is "evidence" even though they did not bring actual documents. In Ryan Vassar's testimony the defense pressed on the whistleblower for not bringing anything, but a good faith idea that illegal activities had occurred.

11:43 a.m. | Penley said he was "apoplectic" when he heard that Cammack had subpoenaed banks for records connected to the Nate Paul investigation. 

11:40 a.m. | Penley says that Paxton thought Penley was too loyal to law enforcement. Penley said he still considered himself a friend to Paxton at that time and was trying to avoid him getting into legal trouble.

11:22 a.m. | Penley testified that Paxton told him, "you don't know what it feels like to be the target of a corrupt law enforcement investigation." Penley said Paxton claimed he spent $50,000 dealing with his own lawsuits.

11:20 a.m. | Penley said at a meeting he warned Paxton that the Paul investigation was dangerous to Paxton legally and asked him to please back away from the case. Paxton told him Cammack had been hired and was already investigating. Penley testified that he told Paxton that he would not supervise Cammack. 

11:07 a.m. | Penley said that he refused to sign a contract for outside Brandon Cammack to investigate Paul's claims after a call with Paxton. Penley said that was when he drew the line with the attorney general.

11:03 a.m. | Penley said that he was "completely cut out of the loop" on the Paul investigation by Paxton after he asked Paul's lawyer to produce more documents.

10:41 a.m. | The trial goes into its first break. Penley testifies that he thought Paxton might have been being bribed or blackmailed based on his actions.

10:30 a.m. | Penley said when he discovered outside counsel was being hired to look into Paul's claims he believed Paxton had fallen under Nate Paul's control. 

10:18 a.m. | Despite not believing Paul's theories Penley denies not looking into the claims. "I did not refuse, and I continued to investigate," Penley said. On Friday, the defense claimed fellow whistleblower David Maxwell had just dismissed Paul's claims and did not look to see if he had a point.

10:11 a.m. | Penley testifies that Paul's metadata theory, the claim that the search warrant against him was changed after the fact, was not backed up by data. "There is no evidence of a crime," Penley said.

9:56 a.m. | Penley describes a second meeting on August 5 with Nate Paul. Paul and his attorney tried to convince Penley that a search warrant affidavit was changed after the raid of his home from a search for weapons and drugs to a more white collar investigation. Penley again called the claims ‘insane’.

9:53 a.m. | The prosecution is digging into the open records request into a probable cause affidavit. Penley, a former federal attorney, says that knowing the contents of the affidavit could allow for people being investigated to take actions that could undermine the investigation.

9:45 a.m. | Here is a look at how we got here with some clips from last week:

9:34 a.m. | Penley says he saw no merit to Nate Paul's complaint, but Paxton was prodding for his team to investigate. He says he "thought it was crazy" and that he hoped AG Paxton would drop it.

9:26 a.m. | Penley says, "I thought, why is the attorney general involved in this?" He also said he thought it was odd that someone who was under federal investigation would turn to the Texas Attorney General for legal help.

9:22 a.m. | Penley is describing a meeting with Paxton where he called Nate Paul shortly after the Austin real estate investors home was raided by the authorities.

9:11 a.m. | The House managers call Mark Penley to the stand. He served as deputy attorney general for criminal justice under Paxton. He is one of the 4 whistleblowers who received a $3.3 million settlement after suing Paxton and the state.

9:07 a.m. | Lt. Gov. Patrick breaks down the amount of time both have left. He says that the jury could have the case by Thursday or Friday and they will not take a break until a decision is made.

9:05 a.m. | Lt. Gov. Dan Patrick gives special recognition to Sen. Brian Birdwell (R-Granbury) who survived the attacks on 9/11.

9:03 a.m. | Before trial proceedings begin the Senators hold a moment of silence in honor of 9/11.

8:57 a.m. | This week on Texas: The Issue Is the FOX Texas Trio broke down the first week of the trial.

8:48 a.m. | Lawyers are in the Senate chambers. Testimony should get underway at 9 a.m.

Previous Coverage

Testimony ended on Friday afternoon after David Maxwell, a longtime Texas Ranger and former OAG Director of Law Enforcement, gave his testimony.

MORE: Ken Paxton Impeachment

Maxwell testified that he met with Paxton donor Nate Paul and his lawyer who wanted Maxwell to investigate DPS troopers, FBI agents and a federal judge involved in a raid on Paul's home.

The former Ranger shared what he told Ken Paxton after he talked with Paul.

"I told him Nate Paul was a criminal. He was running a Ponzi scheme that would rival Billy Sol Estes and that if he didn't get away from this individual and stop doing what he was doing he was going to get himself indicted," Maxwell said.

Maxwell later added that he never had any intention of doing any sort of investigation at Paul's request, suggesting that it would have been illegal.

He was later fired after reporting Paxton to law enforcement. Maxwell was one of 4 whistleblowers to receive a $3.3 million settlement after suing the attorney general and the state. 

We are about halfway through the historic impeachment trial.

Prosecution will call a new witness to start Monday's testimony.

21 Texas Senators must vote to convict Paxton to remove him from office. If all 12 Democrat Senators vote to convict, at least nine Republicans have to join them.

If Paxton is removed from office the Senate will then take another vote to potentially bar him from holding elected office in Texas again.

That would also require the vote of 21 state senators to pass.

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