Vianna Davila

How a Trump DOJ could bring an end to the yearslong investigation of a notorious ally

When President Donald Trump appeared in a New York courtroom last spring to face a slew of criminal charges, he was joined by a rotating cadre of lawyers, campaign aides, his family — and Texas Attorney General Ken Paxton.

Paxton had traveled to be with Trump for what he described on social media as a “sham of a trial” and a “travesty of justice.” Trump was facing 34 counts of falsifying records in the case, which focused on hush money paid to porn star Stormy Daniels during the 2016 presidential campaign to keep her from disclosing their sexual relationship.

“It’s just sad that we’re at this place in our country where the left uses the court system not to promote justice, not to enforce the rule of law, but to try to take out political opponents, and that’s exactly what they’re doing to him,” Paxton said on a conservative podcast at the time.

“They’ve done it to me.”

A year earlier, the Republican-led Texas House of Representatives voted to impeach Paxton over allegations, made by senior officials in his office, that he had misused his position to help a political donor. Trump was not physically by Paxton’s side but weighed in repeatedly on social media, calling the process unfair and warning lawmakers that they would have to contend with him if they persisted.

When the Texas Senate in September 2023 acquitted Paxton of the impeachment charges against him, Trump claimed credit. “Yes, it is true that my intervention through TRUTH SOCIAL saved Texas Attorney General Ken Paxton from going down at the hands of Democrats and some Republicans …” Trump posted on the social media platform he founded.

The acquittal, however, did not wholly absolve Paxton of the allegations brought by his former employees. The FBI has been investigating the same accusations since at least November 2020. And come Monday, when Trump is inaugurated for his second term, that investigation will be in the hands of his Department of Justice.

Paxton and Trump have forged a friendship over the years, one that has been cemented in their shared political and legal struggles and their willingness to come to each other’s aid at times of upheaval. Both have been the subjects of federal investigations, have been impeached by lawmakers and have faced lawsuits related to questions about their conduct.

“If there’s one thing both guys share in common, people have been after them for a while in a big way. They’ve been under the gun. They’ve shared duress in a political setting,” said Bill Miller, a longtime Austin lobbyist and Paxton friend. “They’ve both been through the wringer, if you will. And I think there’s a kinship there.”

Neither Trump nor Paxton responded to requests for comment or to written questions. Both men have repeatedly denied any wrongdoing, claiming that they have been the targets of witch hunts by their political enemies, including fellow Republicans.

Their relationship is so cozy that Trump said he’d consider naming Paxton as his U.S. attorney general pick. He ultimately chose another political ally, former Florida Attorney General Pam Bondi.

Although Trump did not select Paxton, the two men will get yet another opportunity to have each other’s backs now that he has returned to office, both when it comes to the federal investigation into Paxton and pushing forward the president’s agenda.

Before and during Trump’s first term, Paxton filed multiple lawsuits challenging policies passed under former President Barack Obama. He then aggressively pursued cases against President Joe Biden’s administration after Trump lost reelection. Such lawsuits included efforts to stop vaccine mandates, to expedite the deportation of migrants and to block federal protections for transgender workers.

Trump has supported Paxton over and over, not only as the Texas politician sought reelection but also as he faced various political and legal scandals. The president-elect’s promises to exert more control over the Justice Department, which has traditionally operated with greater independence from the White House, could mark an end to the long-running investigation into Paxton, several attorneys said.

Justice Department and FBI officials declined to comment on the story and the status of the investigation, but as recently as August, a former attorney general staffer testified before a grand jury about the case, Bloomberg Law reported. Paxton also referenced the FBI’s four-year investigation of him during a speech in late December without mentioning any resolution on the case. The fact that Paxton hasn’t been indicted could signal that investigators don’t have a smoking gun, one political science professor told ProPublica and The Texas Tribune, but a former federal prosecutor said cases can take years and still result in charges being filed.

“As far as I’m aware, this is pretty unprecedented, this level of alliance and association between those two figures,” said Matthew Wilson, a political science professor at Southern Methodist University in Dallas.

“Don’t Count Me Out”

In 2020, when then-U.S. Attorney General William Barr found no evidence to support Trump’s claims that voter fraud turned the election results in his opponent’s favor, Paxton emerged to take up the argument.

He became the first state attorney general to challenge Biden’s win in court, claiming in a December 2020 lawsuit that the increased use of mail ballots in four battleground states had resulted in voter fraud and cost Trump the election.

Trump eagerly supported the move on social media, writing, “We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!”

The U.S. Supreme Court declined to take the case, ruling that Texas had no legal interest in how other states conduct their elections. Trump, however, didn’t forget Paxton’s loyalty.

He offered Paxton his full-throated endorsement during the 2022 primary race for attorney general against then-Texas Land Commissioner George P. Bush. His decision to back Paxton, who was under federal criminal investigation at the time and had been indicted on state securities fraud charges, was a major blow to Bush, the grandson and nephew of two former Republican presidents. Bush had endorsed Trump for president even though Trump defeated his father, former Florida Gov. Jeb Bush, in the Republican primary and repeatedly disparaged his family.

Trump properties in Florida and New Jersey served as locations for at least two Paxton campaign fundraisers over the course of that campaign. And at a rally in Robstown in South Texas, Trump repeated debunked claims that the election was stolen and said he wished Paxton had been with him at the White House at the time. “He would’ve figured out that voter fraud in two minutes,” Trump said.

While Paxton pursued reelection, FBI agents executed a search warrant at Trump’s Mar-a-Lago resort as part of an investigation into how his administration handled thousands of government documents, many of them classified. Paxton led 10 other Republican state attorneys general in intervening in court on Trump’s behalf, arguing in a legal filing that the Biden administration could not be trusted to act properly in the case.

Paxton won another term in office in November 2022, but the celebration was short-lived. Six months later, the Texas House of Representatives considered impeaching him over misconduct allegations including bribery, abuse of office and obstruction related to his dealings with Nate Paul, a real estate developer and political donor. Paxton has denied any wrongdoing.

Hours before the House voted on whether to impeach Paxton, Trump weighed in on social media.

“I love Texas, won it twice in landslides, and watched as many other friends, including Ken Paxton, came along with me,” he wrote on his social media platform Truth Social. “Hopefully Republicans in the Texas House will agree that this is a very unfair process that should not be allowed to happen or proceed — I will fight you if it does. It is the Radical Left Democrats, RINOS, and Criminals that never stop. ELECTION INTERFERENCE! Free Ken Paxton, let them wait for the next election!”

Despite Trump’s threat, the House voted 121-23 in May 2023 to impeach Paxton. The Senate then held a trial that September to determine Paxton’s fate. “Who would replace Paxton, one of the TOUGHEST & BEST Attorney Generals in the Country?” Trump posted before the Senate acquitted Paxton.

Trump is among the few people who understand what it’s like to be under the kind of scrutiny Paxton has faced and how to survive it, Miller said.

“There is that quality [they share] of, ‘Don’t count me out,’” he said. “‘If you’re counting me out, you’re making a mistake.’”

On Monday, Trump will become the first president also to be a convicted felon. A jury found Trump guilty on all counts of falsifying records in the hush money case. A judge, however, ruled that he will not serve jail time in light of his election to the nation’s highest office.

Trump has repeatedly decried the case, as well as the Justice Department’s investigations that resulted in him being charged in June 2023 with withholding classified documents and later with conspiring to overturn the 2020 election by knowingly pushing lies that the race was stolen. Jack Smith, the special counsel who led the DOJ investigations, dropped both cases after Trump’s reelection. A Justice Department policy forbids prosecutions against sitting presidents, but in a DOJ report about the 2020 election released days before the inauguration, Smith asserted that his investigators had enough evidence to convict Trump had the case gone to trial.

Not only have Paxton and Trump supported each other through turmoil that could have affected their political ambitions, they have taken similar tacks against those who have crossed them.

After surviving his impeachment trial in 2023, Paxton promised revenge against Republicans who did not stand by him. He had help from Trump, who last year endorsed a challenger to Republican Texas House Speaker Dade Phelan, calling Paxton’s impeachment “fraudulent” and an “absolute embarrassment.” Phelan, who has defended the House’s decision to impeach Paxton, won reelection but resigned from his speaker post.

For his part, Trump has tried a legal strategy that Paxton has employed many times, using consumer protection laws to go after perceived political adversaries. In October, Trump sued CBS News over a “60 Minutes” interview with Vice President Kamala Harris, saying the news organization’s edits “misled” the public. Instead of accusing CBS of defamation, which is harder to prove, his lawsuit argues that the media company violated Texas’ consumer protection act, which is supposed to protect people from fraud. The case is ongoing. In moving to dismiss the case, CBS’ attorneys have said the Texas law was designed to safeguard people from deceptive business practices, “not to police editorial decisions made by news organizations with which one disagrees.” (Marc Fuller, one of the CBS attorneys, is representing ProPublica and the Tribune in an unrelated business disparagement case.)

The move indicates a broader, more aggressive approach that the Justice Department may pursue under the Trump administration, said Paul Nolette, director of the Les Aspin Center for Government at Marquette University, who researches attorneys general.

“It’s a signal to me that, yes, the federal DOJ is going to follow the path of Paxton, and perhaps some other like-minded Republican AGs who have been using their office to also go after perceived enemies,” Nolette said.

Cleaning House

On Dec. 21, six weeks after Trump won reelection, Paxton stepped onstage in a Phoenix convention center at the AmericaFest conference, hosted by the conservative organization Turning Point USA.

The event followed Trump’s comeback win. It also represented a triumphant moment for Paxton: He’d not only survived impeachment, but prosecutors agreed earlier in the year to drop long-standing state securities fraud charges against him if he paid about $270,000 in restitution and performed community service.

But Paxton spent much of his 15-minute speech ticking off the grievances about what he claimed had been attacks on him throughout his career, including impeachment by “supposed Republicans” and the FBI case.

He praised Trump’s selection of Bondi to run the DOJ. It was time to clean house in a federal agency that had become focused on “political witch hunts and taking out people that they disagree with,” Paxton said.

Before taking office, Trump threatened to fire and punish those within the Justice Department who were involved in investigations that targeted him. FBI director Christopher Wray, a Republican whom Trump appointed during his first term in office, announced in December that he would resign after the president-elect signaled that he planned to fire him. After facing similar threats, Smith, the special prosecutor who led the DOJ investigations, stepped down this month.

In his speech, Paxton made no mention of the agency’s investigations into Trump, nor did he connect the DOJ to his own case. But a Justice Department that Trump oversees with a heavy-handed approach could benefit the embattled attorney general, several attorneys told ProPublica and the Tribune.

Trump could choose to pardon Paxton before the case is officially concluded. He used pardons during his first presidency, including issuing one to his longtime strategist Steve Bannon and to Charles Kushner, his son-in-law’s father. He’s been vocal about his plans to pardon many of the Jan. 6 rioters on his first day in office.

More concerning, however, is if Trump takes the unusual approach of personally intervening in the federal investigation, something presidents have historically avoided because it is not a political branch of government, said Mike Golden, who directs the Advocacy Program at the University of Texas School of Law.

Any Trump involvement would be more problematic because it would happen behind closed doors, while a pardon is public, Golden said.

“If the president pressures the Department of Justice to drop an investigation, a meritorious investigation against a political ally, that weakens the overall strength of the system of justice in the way a one-off pardon really doesn’t,” Golden said.

Michael McCrum, a former federal prosecutor in Texas who did not work on the Paxton case, said “we’d be fools to think that Mr. Paxton’s relationship with the Trump folks and Mr. Trump personally wouldn’t play some factor in it.”

“I think that the case is going to die on the vine,” McCrum said.

Miller, Paxton’s friend, agreed.

“I would expect his troubles are behind him.”

Texas’ AG is increasingly using consumer protection laws to target political opponents

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

The men knocked on the door of a two-story, red-brick building in downtown El Paso one chilly morning in February. When a volunteer answered, they handed her a document they said gave them the right to go inside and review records kept by Annunciation House, a nonprofit that for decades has served immigrants and refugees seeking shelter.

An employee phoned Ruben Garcia, the nonprofit’s director and founder, who was at one of the organization’s other properties. Feeling a calling to do more to help immigrants and other people experiencing poverty, Garcia was part of a small group that formed the nonprofit in the 1970s. He’s since become an unofficial historian of the migration patterns and political response to immigration and immigrants.

But in his nearly five decades helming the nonprofit, Garcia had never encountered a situation like this. Standing on the organization’s doorstep were officials sent there by Texas Attorney General Ken Paxton’s Consumer Protection Division. They were demanding to come inside and search the nonprofit’s records, including all logs identifying immigrants who received services at Annunciation House going back more than two years.

“Is this a warrant?” Garcia recalls asking the group, which included an assistant attorney general and a law enforcement officer from the state agency.

It wasn’t. Still, the letter the men presented stated that the attorney general’s office had the power to immediately enter the building without one.

Consumer protection laws give attorneys general broad legal authority to request a wide range of records when investigating businesses or charities for allegations of deceptive or fraudulent practices, such as gas stations that hike up fuel prices during hurricanes, companies that run robocalling phone scams and unscrupulous contractors who take advantage of homeowners.

But attorneys general have increasingly used their powers to also pursue investigations targeting organizations whose work conflicts with their political views. And Paxton, a Republican, is among the most aggressive. “He’s laying out kind of like the blueprint about how to do this,” said Paul Nolette, an expert in attorneys general and director of the Les Aspin Center for Government at Marquette University.

An analysis by ProPublica and The Texas Tribune shows that in the past two years, Paxton has used consumer protection law more than a dozen times to investigate a range of entities for activities like offering shelter to immigrants, providing health care to transgender teens or trying to foster a diverse workplace.

Not a single one of the investigations was prompted by a consumer complaint, Paxton’s office confirmed. A complaint is not necessary to launch a probe.

The analysis is possibly an undercount. The attorney general’s office said it has not consistently maintained a list of the Consumer Protection Division’s demands to examine records and would need to review individual case files to determine how many requests had been sent. The agency also fought the release of certain records requested under Texas’ Public Information Act, citing exceptions for anticipated litigation.

Paxton’s office did not respond to requests for comment or to detailed questions. It also did not reply to a request to speak with the Consumer Protection Division’s chief.

Two attorneys representing nonprofits that Paxton recently targeted said they believe he launched the investigations simply to harass their clients and to cause a chilling effect among organizations doing similar work. Both said the attorney general’s demands violate the First Amendment, which guarantees the right to free speech, association and religion, and the Fourth Amendment, which offers protection against unreasonable search and seizure.

The political weaponization of consumer protection divisions by Paxton and other attorneys general appears to be “a core violation” of constitutional laws that runs counter to what these divisions were established to do, said Georgetown Law professor Michele Goodwin.

The offices were intended to protect the public, Goodwin said. “Instead,” she added, “what is taking place in these times are efforts that undermine the civil liberties and the civil rights of people who are the public in those states and the people who are in those states who are seeking to aid and assist the public.”

In the Annunciation House case, the attorney general’s office went even further by showing up at the nonprofit’s door and demanding to immediately review documents rather than sending its requests for records by mail and giving organizations weeks to respond, as it often has in other cases ProPublica and the Tribune examined.

Paxton’s office then denied the nonprofit’s request for additional time to determine what information it was legally required to turn over, prompting Annunciation House to sue. In response, the attorney general’s office argued in court documents that the nonprofit had forfeited its right to operate and publicly accused it of acting as a stash house for immigrants he alleges are in the country illegally.

The attorney general’s move to shutter Annunciation House drew swift rebuke from political and religious leaders, who said his characterizations of the nonprofit were a dangerous misrepresentation of the charity. Paxton’s actions also sparked concern as far away as the Vatican. In a recent interview with CBS News, Pope Francis called Paxton’s efforts “madness, sheer madness.”

“The migrant has to be received,” the pope said on the television news program “60 Minutes.” “Thereafter you see how you’re going to deal with them. Maybe you have to send them back. I don’t know. But each case ought to be considered humanely, right?”

Annunciation House primarily serves people who are processed and released into the U.S. by immigration officials. Garcia communicates daily with Border Patrol and other federal agencies that regularly ask for help finding shelter for people who turn themselves in to authorities or are apprehended but have nowhere to go while their cases are processed.

In March, an El Paso state district judge temporarily blocked the attorney general’s efforts to obtain Annunciation House’s records and said the state must go through the court system to continue the investigation. “There is a real and credible concern that the attempt to prevent Annunciation House from conducting business in Texas was predetermined,” the judge wrote in his order.

Even when Paxton doesn’t get speedy access to the documents he wants, he often publicizes these typically confidential cases, putting out news releases that draw headlines and build support among his base of hard-line conservatives.

The simple act of publicizing that he is pursuing an organization can cause irreparable harm, said Jerome Wesevich, an attorney who represents Annunciation House.

“Someone has to say what is the line between a legitimate investigation and harassment,” Wesevich said.

As the Annunciation House case progresses through the courts, Paxton has continued his public attacks on the nonprofit. On May 8, Paxton announced in a press release that he had filed a court injunction to stop what he called Annunciation House’s “systemic criminal conduct.” He then issued a warning to other nonprofits that assist immigrants, saying that those that are “complicit in Joe Biden’s illegal immigration catastrophe and think they are above the law should consider themselves on notice.”

He again called for the charity to be shut down.

Evolving Power

The consumer protection cases that Paxton and like-minded attorneys general are pursuing today are virtually unrecognizable from the historically bipartisan and apolitical ones their counterparts undertook even 20 or 30 years ago, said James Tierney, a former Maine attorney general.

“The people that the laws were designed for were working-class people who were getting ripped off when they bought a used car,” said Tierney, who directs the attorney general clinic at Harvard Law School. While many attorneys general still do that work, consumer protection laws are also increasingly “being used to obviously move social agendas.”

The push to protect consumers was among numerous social movements that began to materialize in the 1960s and 1970s as Americans demanded more government action in areas like civil rights and environmental justice. As a result, states began to adopt laws that gave attorneys general the ability to investigate potential fraudulent activity by businesses.

Federal and state institutions also started encouraging attorneys general to think of themselves as representing not only the state but also the people who lived there. “This shift was significant because by serving as the representatives of individuals and groups allegedly harmed by corporate conduct, AGs essentially became a form of class-action litigator,” Nolette, the Marquette professor, wrote in his book, “Federalism on Trial.”

Initially, attorneys general focused consumer protection investigations in their own states. By the 1980s, however, the scope of the investigations began to change as the attorneys general offices started to work across state lines to target large industries.

Perhaps the most notable example is the decision by all 50 state attorneys general to sue tobacco companies in the 1990s. They successfully argued the industry misled consumers about the dangers of cigarettes and other tobacco products and intentionally marketed them to children. The lawsuits resulted in billions of dollars in settlement money. More recently, attorneys general across the country pursued similar multistate suits against the opioid industry and pharmaceutical supply chain.

The power of attorneys general continued to grow through the decades as Congress passed measures that empowered states to enforce federal law and the courts interpreted ambiguities in the law in such a way that made it easier for states to sue under federal statutes.

A number of other court decisions unrelated to consumer protection further changed the role of attorneys general. As states found it easier to bring cases that are similar to class-action suits, the Supreme Court issued rulings in the early 2010s that made it harder for private litigants to do so. The decisions essentially drove those cases to attorneys general, Tierney said.

A 2014 Supreme Court decision that lifted limits on individual campaign contributions raised the stakes of attorneys general campaigns and created “a funnel for dark money to flow into every AG race,” Tierney said.

“The machine is up and running,” Tierney said, “and will continue to run unless someone figures out how to stop it.”

Stretching the Boundaries

Although Paxton has used consumer protection law to investigate a wide range of organizations with which he disagrees politically, he has perhaps most aggressively pursued those that provide or support gender-affirming care for minors.

Over the past two years, his office has launched at least six investigations into hospitals, pharmaceutical companies and an LGBTQ+ advocacy and support group, often demanding records that include sensitive patient information.

These investigations came amid a growing wave of conservative initiatives in Texas and across the country that have worked to chip away at the rights of transgender people. At least 25 states ban gender-affirming care for minors in some way, according to the Human Rights Campaign.

Texas was not among those states when, in August 2021, then-state Rep. Matt Krause, a Republican who the same year launched an investigation into school library books that dealt with topics like sexuality and race, wrote to Paxton asking for an opinion on whether gender-affirming care for children amounted to child abuse. In February 2022, Paxton issued a nonbinding legal opinion that said it did.

Days later, Gov. Greg Abbott directed the Texas Department of Family and Protective Services to investigate parents who authorized such treatment for their children, a move that spurred both condemnation — including from families, medical professionals and the White House — and fear across the state and country. These investigations are on hold following several court rulings.

As Abbott ordered the state agency to go after parents, Paxton began launching investigations into organizations that provide or support gender-affirming care for transgender minors.

One of those targeted entities was Dell Children’s Medical Center in Austin. In May 2023, one of Paxton’s Consumer Protection lawyers sent a letter to the hospital demanding documents related to the use of puberty blockers and counseling for transgender youth. Three weeks later, the same lawyer sent a letter seeking similar records from Texas Children’s Hospital in Houston. In a news release announcing the investigation, Paxton said his office was examining whether the facility was “unlawfully” providing gender transition care.

At the time that the letters were sent to the hospitals, a law preventing transgender minors from getting puberty blockers and hormone therapies was working its way through the Legislature. The law ultimately passed, but it did not go into effect until Sept. 1.

Dell Children’s did not respond to an interview request. Texas Children’s Hospital declined to comment for this story.

In the months that followed, Paxton went even further. He began to investigate organizations outside of Texas for their connections to gender-affirming care: Seattle Children’s Hospital in Washington state; QueerMed, a telehealth clinic based in Georgia; and PFLAG Inc., a Washington, D.C.-based national nonprofit that supports LGBTQ+ people and their families.

Seattle Children’s Hospital sued the attorney general in December to block the release of any patient records, arguing that handing them over would violate federal and state health care privacy laws. The hospital said in legal filings it had no staff that treated transgender children in Texas or remotely.

Paxton has not answered questions about why he decided to investigate out-of-state facilities, but in court filings in the Seattle case, the attorney general’s office argued it has the right to investigate the hospital and other organizations registered to do business in Texas. The demand letter sent to the hospital asked for records related to the facility’s gender-affirming treatment of children who reside or used to reside in Texas. (The news organizations filed a public information request for the investigative letter Paxton sent to QueerMed, but the attorney general’s office is fighting its release, citing exceptions when information is related to pending or anticipated litigation.)

What seems to unite all three cases is that the attorney general’s office under Paxton “is going to use consumer protection law to stretch the boundaries of what they can do to try to make transgender care as minimal as possible in Texas,” said Colin Provost, an associate professor of public policy at University College London whose research has included how attorneys general in the U.S. work together to enforce consumer protection laws.

Paxton and Seattle Children’s reached a settlement in April. As part of the deal, the hospital agreed to withdraw its Texas business license. In exchange, Paxton dropped his demand for records.

QueerMed founder Dr. Izzy Lowell declined to comment for this story. But the doctor said in an interview with The Washington Post that Paxton’s push to access transgender youths’ medical records was “a clear attempt to intimidate providers of gender-affirming care and parents and families that seek that care outside of Texas and other states with bans.”

PFLAG sued Paxton’s office in February after the attorney general demanded its records. In court filings, Paxton alleged that the nonprofit had information about medical providers in the state that may have been committing insurance fraud. The attorney general accused health care professionals of providing gender-affirming care but disguising it as treatment for an endocrine disorder.

A Travis County district court judge issued an injunction in March that temporarily blocked the state’s access to the records. In her ruling, she wrote that failing to stop the attorney general from getting these records could result in PFLAG and its members suffering harm, including limitations on their First Amendment and Fourth Amendment rights. Paxton appealed her ruling. The 3rd Court of Appeals, which is hearing the case, has issued a temporary order protecting PFLAG from Paxton’s demands for records.

Karen Loewy, a lawyer with Lambda Legal, which is representing PFLAG, said she remains baffled by the attorney general’s decision to use the state’s consumer protection law to investigate organizations like PFLAG, which provides resources to chapter support groups in the state.

“There's no consumer fraud happening here at PFLAG’s hands,” Loewy said.

Yet, she said, the attorney general appears to believe that he can send these demands to anyone his office thinks has information related to an investigation. In a court filing in response to PFLAG's lawsuit, Paxton’s office admitted it does not believe the nonprofit is violating the state’s consumer protection law, known as the Deceptive Trade Practices Act. The attorney general, however, argued in the filing that it can demand records of anyone, “not just those suspected of a violation.”

"The way in which the AG’s office has argued this already shows that they think that their power is unlimited,” Loewy said.

Sending a Message

Just as Paxton’s campaign against transgender care for minors has sent a chill through the network of people who provide this medical care, the impacts of the attorney general’s investigation of Annunciation House are reverberating throughout the community of people who work with migrants.

On Friday, Annunciation House’s lawyers filed a motion to throw out the attorney general’s case. Aside from arguing that Paxton’s claims about the organization are unfounded, the nonprofit said in the legal filings that the probe has caused harm that is “not only imminent, it is ongoing.”

Immediately after the attorney general officials showed up at the nonprofit’s offices in February, three Annunciation House volunteers quit, including the woman who answered the door. They worried the situation was “more unpredictable” than they could handle, Garcia said.

According to court records filed by Annunciation House attorneys, some volunteers have received threatening phone calls. The filings also state that the city of El Paso started stationing security guards at all of the nonprofit’s shelters “around the clock” to protect the people who are staying there.

“It’s scaring people from wanting to volunteer with us,” Garcia said. “It’s scaring people from wanting to work with the refugees.”

Las Americas Immigrant Advocacy Center, an El Paso-based nonprofit that works with Annunciation House and provides legal services to immigrants and refugees on both sides of the border, has not lost volunteers, but the organization’s executive director, Marisa Limón Garza, said people were rattled by the fact that employees from Paxton’s office showed up at a fellow nonprofit’s door demanding access.

“If it’s a letter in the mail, that’s one thing,” Limón Garza said. “But coming and trying to access the space, that’s a different level of state intervention that definitely sends a chilling effect. It sends a message.”

That message changed how Las Americas operates. It updated its security and technology systems at a cost of $25,000, money the nonprofit’s leadership hadn’t planned to spend, Limón Garza said. The organization also better secured its internal files, got new cellphones and laptops, and added new intercom and doorbell screening systems.

It no longer allows walk-ins.

Military justice reforms leave criminal cases to commanders with no legal expertise

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Story newsletter to receive stories like this one in your inbox as soon as they are published. Also, sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

More than a year has passed since Congress adopted reforms that promised to overhaul the U.S. military justice system. Lawmakers stripped military commanders of their authority to prosecute certain serious cases but allowed them to maintain control over other alleged crimes.

However, the reforms, which will not go into effect until the end of this year, may have created additional challenges, military experts said.

Commanders, who oversee service members but are not trained lawyers, still have control over various aspects of the system, including whether to confine soldiers ahead of trial for alleged crimes, ProPublica and The Texas Tribune found.

We spoke to two military legal experts, Geoffrey S. Corn and Rachel E. VanLandingham, about the reforms and what they mean for the future of the military justice system. Corn is a retired Army lieutenant colonel who is now a professor and directs Texas Tech University’s Center for Military Law and Policy. VanLandingham is a professor at Southwestern Law School in Los Angeles and a retired Air Force lieutenant colonel. They are both former judge advocate generals, or military lawyers. Here are takeaways from those conversations.

The reforms were long overdue

The military justice system was initially formed as a way to discipline soldiers during times of war, giving commanders unfettered authority to mete out discipline and punishment. That included determining who should be prosecuted and for what crime.

VanLandingham was largely unfamiliar with that system when she enlisted at the Air Force Academy at age 18. She remembers being sexually assaulted and harassed while at the academy but said she never reported anything for fear of being ostracized or retaliated against.

She was a senior at the academy when dozens of women reported being sexually assaulted or harassed during a three-day 1991 convention of Navy and Marine Corps aviators in Las Vegas.

The incident, which became known as Tailhook after the association that put on the event, was among the first times there had ever been focus on sexual misconduct in the military or how the military treated women in the armed services. The secretary of the Navy eventually resigned in the wake of the scandal and several admirals were censured or relieved of duty. The Navy also adopted a “zero tolerance” policy to sexual harassment.

“Tailhook was the first time that I recall that it hit me that ‘Oh, there might be a bigger problem here than just this little academy world,’” VanLandingham said. “‘That was my first time thinking, ‘Huh, is the military going to take care of me?’ But at that point, I couldn’t think about it too much because I had a five-year commitment.”

Similar scandals unfolded over the next three decades, prompting additional public scrutiny of military culture and commanders’ attitudes toward sexual assault. Congress turned up the pressure in 2013 as lawmakers like Sen. Kirsten Gillibrand of New York began to push the idea that commanders should not oversee the justice system.

But large-scale reform wouldn’t happen until 2021, one year after the disappearance and murder of Army Spc. Vanessa Guillén at Fort Hood in Central Texas. Her death, along with the deaths of several other soldiers at the post, spurred louder calls for change. Guillén was sexually harassed by a supervisor months before she was allegedly killed by another soldier. That year, an independent review committee appointed by the Secretary of the Army published a report that found evidence soldiers had underreported sexual assault and harassment at the post for fear of “ostracism, shunning and shaming, harsh treatment, and indelible damage to their career.”

“That commission actually found that there was an environment that was permissive of sexual harassment and assault, which was the first time any kind of military-related formal document actually pointed a finger at the commanders and said, ‘You allowed an environment that was conducive to this stuff,’” VanLandginham said.

The compromise will change only some things

In 2021, Congress made sexual harassment a separate offense in military courts, easing the path for charging soldiers. Previously, ambiguity in the law made it so that soldiers often would be charged with sexual harassment only in conjunction with other misconduct. Lawmakers also mandated that military judges, not jurors, sentence service members for all non-death penalty offenses and ordered the creation of recommended sentencing guidelines.

But the most significant change was lawmakers’ creation of a new office of military attorneys, called the Office of the Special Trial Counsel. Instead of leaving it up to military commanders to decide whether to prosecute cases related to serious offenses that include sexual assault and domestic assault, murder and involuntary manslaughter, attorneys within the new office will do that.

VanLandingham, who supports taking legal authority from commanders, believes that the new system does not go far enough because it leaves some cases in the hands of military commanders. For example, commanders continue to decide whether to prosecute offenses such as robbery, assault and distribution of controlled substances.

That disparity “makes no sense,” VanLandingham said. “It’s a product of politics versus a product of doing the right thing.”

By comparison, Corn supports maintaining commanders’ ability to decide cases in which service members are accused of crimes. He said commanders “are in those positions because they have had a career of exercising careful, thoughtful and decisive judgment.” But he said if Congress was going to take away that authority, it should have done so across the board and not only in certain cases.

“I struggle with the idea that Congress has said a nonlawyer commanding general is not competent to make decisions on whether or not an individual should be brought to trial for sexual harassment, but he is competent to make decisions on whether another defendant can be brought to trial on some other offense,” Corn said. “If I’m that other defendant, I’m saying, ‘Wait a minute, that’s fundamentally unfair.’”

The 2021 law wasn’t the last word

Congress passed additional changes in December that VanLandingham said helped address some of what had been left unfinished in 2021.

Lawmakers moved three additional charges under the purview of military attorneys. Those are sexual harassment, causing the “death or injury of an unborn child” and “mailing obscene matter,” which means wrongfully sending explicitly sexual materials like a nude photo of a child.

The new law also requires the U.S. president to remove such powers as the ability to grant immunity to witnesses and hire witness experts from commanders in cases that the new trial counsel office is handling.

Congress also passed a measure requiring the Secretary of Defense to annually report on the outcomes of cases handled by the new Special Trial Counsel office beginning no later than 2025.

All service members will also for the first time have the ability to seek judicial review of their convictions. Previously, only service members who were sentenced to several months of confinement or received a punitive discharge were eligible to ask for such a review.

Congress directed that an existing advisory committee examine what information about a case should be shared with lawyers representing victims of crimes allegedly committed by military personnel. Victims have historically had trouble accessing evidence connected to their cases.

Corn believes the change will bring more transparency for alleged victims. “If I’m a victim’s counsel, and the prosecutor is saying, ‘We have decided not to prosecute this case,’ and my client is distraught and doesn’t understand it, my ability to have access to the file to show the victim what the problems are in the case helps me do my job,” Corn said.

VanLandingham said one of the most significant changes in December was Congress’ decision to require that courts-martial jurors — known as panel members — be selected at random, like a civilian jury. Currently, military commanders select the panel members. Those rules are not expected to go into effect until the end of 2024.

The change is “huge, at least appearance-wise,” VanLandingham said. “It’s just one more step to show that, yes, all these things that have been done for hundreds of years in the civilian sector really do and can be done” in the military.

More work remains to be done

The 2021 overhaul, which included the creation of the Office of the Special Trial Counsel, won’t go into effect until the end of this year at the earliest. That’s too long, VanLandingham said: “We can invade a country in far shorter of a time frame.”

She expects Congress and the Department of Defense to want time to see how the new system works before considering other large-scale reforms.

VanLandingham said she believes the only solution is to transfer prosecutorial authority of all felony-level offenses in the military to the Justice Department, “whose prosecutors do nothing but prosecute.” Short of that, she said, commanders should be taken out of the military justice equation entirely instead of having the two-pronged system Congress created.

“You’ve created a Frankenstein system that is doubly inefficient and, I think, still leaves in place things like gross racial disparities, gross rank disparities in the administration of military injustice. It’s hard for me to even call it military justice when you have twice as many African Americans still court-martialed to this day,” VanLandingham said.

She said commanders should not be in the business of practicing law.

Corn said future reforms should focus on creating more uniform and effective training for commanders “on the ethical guideposts that prosecutors, good prosecutors, use to decide whether or not to send the case to trial.”

Still, he expects that prosecution of almost all criminal offenses will one day fall to the special trial counsel office.

“So 10 years from now, when the captain at Fort Hood who is a brigade or division commander, if you said to him, ‘Hey, did you know that 15 years ago, if you were in this job, you would decide what cases go to trial?’” Corn said. “He’d probably say, ‘That’s crazy.’”

Disclosure: Texas Tech University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/02/13/military-justice-reforms-pretrial-confinement/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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