This column first appeared Jan. 23 on The American Spectator.
The special prosecutors’ deceitful collusion with the news media reveals the poisonous motives of both.
This is the fourth — and final — installment in a series of articles dissecting the prosecution of Texas Attorney General Ken Paxton (the first three parts are here, here, and here).
Among the many parallels between the abuses of mercenary “special prosecutors” Kent Schaffer and Brian Wice and the out-of-control investigation being conducted by special counsel Robert S. Mueller III is the prevalence of media leaks, planted stories, and outright collusion between government officials — servants of justice, supposedly — and the overwhelmingly-biased press corps. This marks an ominous development in the pattern of prosecutorial abuse that Glenn Reynolds has termed Ham Sandwich Nation; the Fourth Estate, instead of constraining such abuse, has become an accomplice to it.
The conduct in Paxton’s case is arguably even worse than in Mueller’s investigation, however, because the publicity-hungry special prosecutors have brazenly — and repeatedly — violated the terms of a media gag order, and also apparently disclosed confidential grand jury information to the press. Records produced by Schaffer and Wice in response to a Texas Public Information Act request by attorney Tony McDonaldconfirm they have had over 100 email communications with reporters since the gag order was issued, and an untold number of leaks in the form of text messages and phone calls. I say “untold” because the outside counsel for the special prosecutors tasked with responding to such requests, Houston attorney David Feldman — also being paid by Collin County taxpayers at the rate of $300 an hour — refused to produce texts and phone records. Feldman, a mercenary lawyer working for the mercenary prosecutors, has himself been paid over $80,000 to date!
A brief digression: Feldman, predictably, is a political insider who served as city attorney under former Houston Mayor Annise Parker. Parker (Houston’s first openly-gay mayor) and Feldman generated national infamy when they subpoenaed sermons from local pastors in a lawsuit over Houston’s controversial transgender bathroom ordinance — authored by Parker — which the voters later resoundingly repealed. The shameful subpoenas, incidentally, were issued with the “pro bono” assistance of a law firm in which Paxton’s 2018 Democrat opponent is a partner. Not surprisingly, Feldman’s son and law partner, Chris, was prominently involved in the lawfare waged against former House Majority Leader Tom DeLay. Chris Feldman was mentored by Houston trial lawyer Rusty Hardin, whom Team Straus previously retained — at great expense — to persecute University of Texas Regent Wallace Hall. Detect a pattern?
The media-savvy special prosecutors have colluded with the Fourth Estate to try — and convict — Paxton in the court of public opinion long before the case even comes to trial. Wice in particular is an aspiring media celebrity, serving as a TV “legal analyst” on Houston’s Channel 2 (KPRC) since 2003. Think of a male version of Nancy Grace or Greta Van Susteren — a Dan Abrams wannabe. One profile described the bombastic Wice as a “media magnet” who “never shies away from the spotlight.” The KPRC website brags that Brian has also developed a national reputation for his cutting-edge take on legal issues, with appearances on Court-TV, “The Today Show,” “Dateline NBC,” “The Abrams Report” and “Scarborough Country” on MSNBC, and “NBC Nightly News with Brian Williams.” Brian’s legal blog on Click2Houston.com during the 2006 Enron trial won critical acclaim from the Washington Post, Court TV, the Houston Press, and the Wall Street Journal.
In what parallel universe would a Collin County judge select such a self-promoting publicity hound to be a special prosecutor in one of the state’s most sensitive criminal cases, against Texas’s chief law enforcement officer? Unfortunately, Judge Scott Becker has refused to answer this question. Collin County voters deserve an explanation.
Beginning the very day Schaffer and Wice were appointed by Becker, the prosecutors were in contact with the media, shamelessly promoting themselves by mass distributing press statements and publicity photos. Schaffer and Wice obviously intended to milk the case for all the news coverage they could get, for two self-serving reasons: to poison the well of public opinion against Paxton, and to generate free advertising to attract future clients. Neither motive is ethical for a special prosecutor. Yet, Wice has conceded that pretrial media coverage “impacts the way potential jurors view our client’s case long before they are ushered into the courtroom for voir dire. Being able to effectively represent your client on the courthouse steps can be every bit as important as representing them inside the courtroom.”
Moreover, Wice once cynically acknowledged the economic benefits of making media appearances, informing fellow lawyers that “appearing on TV is client development — free advertising — that might well yield future business. And you never can tell what that one local, or, with a bit of good fortune, national TV appearance, can do for you or your practice.” Exploiting the media, in other words, is the latest form of ambulance chasing. “Celebrity” attorneys, like the Kardashians, are famous for being famous.
In that vein, Schaffer and Wice continued a steady stream of self-aggrandizing communications with the press corps during the “investigation” and grand jury phases, despite the strict secrecy associated with the grand jury process. The special prosecutors had numerous communications (by email and telephone) with the New York Times’ reporter early in the case, following which the NYT reported Paxton’s indictment on August 1, 2015, before the indictment was even unsealed. Was this national media scoop a coincidence? The special prosecutors were the obvious source of the highly-unprofessional leak, but the press corps gratefully reciprocated by uncritically reporting Wice’s spin as “news.”
In addition to regularly sending eager reporters status updates and copies of pleadings and orders, on at least two occasions Wice circulated to the media Paxton’s annual Personal Financial Statement, presumably to encourage reporters to scrutinize the donors to Paxton’s legal defense fund — a wholly improper purpose. In an even more egregious breach of propriety, Wice emailed a copy of Paxton’s booking “mugshot” to his KPRC colleague, reporter Phil Archer, shortly after Paxton was released on bail. The only word to describe this type of conduct is “sleazy.”
The prosecutors regularly engaged in blustery banter with reporters (and court personnel), once referring to themselves as “big time playas,” and joking that “comparing Rick Perry’s case with Mr. Paxton’s is like comparing Citizen Kane with Showgirls.” Like a snarky adolescent, the Hollywood-obsessed Wice sent a video clip from the movie Fatal Attraction to Dallas Morning News reporter Lauren McGaughy with a personal note regarding a Paxton defense lawyer. To another chummy reporter, Wice cracked that “we’ve been ready since the Summer of ’42,” another movie reference. When McGaughy asked Schaffer if he was concerned about some subpoenas in the case, he snidely responded, “I’m more concerned whether I want mayonnaise or mustard on the roast beef sandwich I’m about to order for lunch.” The press corps ate up this sophomoric braggadocio.
Intemperately denouncing Paxton’s legal arguments as “frivolous” and “clearly baseless,” the special prosecutors’ tone toward Paxton dripped with contempt as they delivered sound bites to groveling reporters on deadline. When asked by a reporter about a new attorney joining the Paxton defense team to deal with the federal civil case (which was ultimately dismissed with prejudice), Schaffer sarcastically responded “Never heard of him. Looks like we set off the Lawyer Relief Act…” When a prominent Paxton supporter wrote an op-ed in the Midland Reporter-Telegram, criticizing the indictment, the thin-skinned prosecutors immediately issued a florid press statement — presumably on the taxpayers’ nickel — condemning the piece as a “rant” containing “lies bathed in the cologne of half-truths, fabrications and disinformation.”
Mimicking the prosecutors’ flippant and unprofessional tone, some reporters began running stories with shockingly-unbalanced headlines, such as “Another Day, Another Idiotic Ken Paxton Motion,” which Schaffer and Wice gleefully circulated to their media contacts, with the message “I love it.” If media outlets did not parrot the prosecutors’ swaggering narrative, they were cut off from “insider access.”
“Favored” reporters who served as PR flacks for the prosecution, such as DMN’s McGaughy, were rewarded with exclusive quotes, insider information, and — to be delicate — “relaxed” journalistic boundaries. For example, in January 2017, Wice sent an unpublished scheduling order to McGaughy with a note that read “See attached. You got it from the website.” Wice was slyly signaling to her — in the equivalent of an exaggerated wink — that he was disavowing the material he was transmitting. McGaughy, acknowledging the favor that Wice had just done, responded within minutes with an enthusiastic “Thanks!” On a number of occasions, McGaughy would “preview” stories she was working on — with a predictable anti-Paxton bias — and solicit the prosecutors’ comments.
This incestuous arrangement likely explains why the Dallas Morning News, which was closely following the Paxton case, never reported the bombshell mentioned in Part 2 — that Schaffer was named as an unindicted co-conspirator in a federal RICO case against the leader of the Bandidos motorcycle gang — a revelation that would have greatly tarnished the special prosecutors’ undeserved Boy Scout image — which McGaughy had gone to extraordinary lengths to burnish.
When Wice wanted the press to “hit” Paxton with a negative story, he knew that he could rely on the consistently anti-Paxton McGaughy to deliver what Wice referred to as “a Lauren’s take” — that is, serving as the prosecution’s media mouthpiece. Accordingly, in September 2015 Wice shopped this hit piece to McGaughy:
Remember when Anthony Holm [a Paxton spokesman] tried to call us out like punks for being “criminal defense lawyers who made their money defending the scum of the Earth” and who were worst of all, “from Houston”? How funny is it that when Paxton had to pull the trigger, he hired — wait for it — a criminal lawyer from Houston who has repped his share of really douche-bag-like clients?
This apparently referred to Paxton’s retention of a defense team that included Dan Cogdell and Philip Hilder, with respect to whom Schaffer and Wice issued polite public statements.
The hundreds of email exchanges between the prosecutors and reporters (McGaughy in particular) are clearly collusive. With the avid cooperation of the press corps, for two and a half years Schaffer and Wice have been busy smearing Paxton through leaks and planted stories, all while risibly claiming to be “seeking justice on behalf of the people of Texas.”
To re-cap this series: The baseless, politicized prosecution of Texas Attorney General Ken Paxton has been a travesty on many levels. Following the recusal of Collin County District Attorney Greg Willis, the matter should not have been referred to mercenary “special prosecutors” for investigation; Schaffer (the unindicted co-conspirator in a RICO case) and Wice (an incorrigible diva) were not suitable for the assignment in any event; the open-ended compensation arrangement agreed to by Judge Scott Becker was both unlawful and foolhardy; the grand jury indictment improperly obtained by the unscrupulous prosecutors amounts to fabricated felonies — made-up crimes never previously prosecuted in a Texas court; the overtly-biased George Gallagher presided over the case as a farcical kangaroo court; changing the venue of the case to Harris County was an absurd and outrageous denial of due process to Paxton; et cetera, ad infinitum.
The worst aspect of this grotesque miscarriage of justice, however, is the ignominious role played by a hyper-partisan, supine, and incurious press corps, which served as the special prosecutors’ obsequious PR flacks. If abusive lawfare is to be prevented, a free and independent news media must play the role of watch dog, not lap dog. The Fourth Estate has become a Fifth Column — a tool of overreaching, scheming, and manipulative prosecutors. Shame on them.