Can Texas officials be reprimanded for arguing fraud changed 2020 election results?

AUSTIN — The Texas Supreme Court heard arguments Thursday in a case that could determine whether top officials with the attorney general’s office can be sanctioned for making allegedly false statements about election fraud in a 2020 petition to the U.S. Supreme Court.
At issue Thursday was whether a lawsuit accusing First Assistant Attorney General Brent Webster of professional misconduct — and a similar lawsuit against Attorney General Ken Paxton — was a legitimate accusation of wrongdoing or a partisan ploy to punish a political opponent.
The case stems from a December 2020 petition, led by Paxton and Webster, asking the U.S. Supreme Court to overturn Democratic presidential candidate Joe Biden’s electoral victories in four swing states.
The Texas petition, joined by 21 Republican-led states, argued Texas had uncovered proof of “significant and unconstitutional irregularities” that affected the election results in Pennsylvania, Georgia, Michigan and Wisconsin.
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The court dismissed the lawsuit four days later, ruling Texas lacked standing to challenge methods adopted by other states to run an election.
Justice Jimmy Blacklock questioned whether the right or wrong of Webster’s actions changed depending on political perspective.
“In November of 2020, those allegations sound entirely reasonable and probable to about half the country, and they sound outrageous and sanctionable to the other half of the country,” Blacklock, one of nine GOP justices on the all-Republican court, said during oral arguments Thursday.
“The obvious difference between the two groups of people is their political perspective and their interpretation through the lens of politics of disputed and controversial events related to an election,” Blacklock said.
The Texas state bar’s Commission for Lawyer Discipline filed a 2022 lawsuit asking a state district court judge to reprimand Webster for alleged violations of state ethical standards that prohibit lawyers from conduct involving dishonesty, fraud, deceit or misrepresentation.
Webster, second in command at the attorney general’s office, was accused of misrepresenting that Texas had “substantial evidence … that raises serious doubts as to the integrity of the election process” in the four battleground states.
The lawsuit accused Webster of professional misconduct by making “dishonest representations” to the Supreme Court. The alleged false statements included charges that unregistered voters and “illegal votes” skewed election results, and that a glitch with Dominion voting machines switched votes away from Republican Donald Trump. Texas also argued the states unconstitutionally revised voting procedures in response to the COVID-19 pandemic.
The commission filed a similar complaint against Paxton about three weeks later.
Michael Graham, appellate counsel from the state bar’s chief disciplinary counsel’s office, acknowledged the commission doesn’t know if Webster “knowingly” made false statements to the Supreme Court. But he argued the commission’s process wasn’t political.
“The whole construct of that attorney disciplinary system has been created by this court with help from the Legislature to try and avoid exactly the political problems you’re concerned about,” Graham said.
Graham said a grievance filed against Webster was dismissed by the commission’s chief disciplinary counsel but reinstated on appeal, leading to an investigation that found “just cause” to proceed toward disciplinary action. Webster then opted for a trial in district court instead of accepting a public reprimand.
“The rules tell us what to do,” Graham said, adding it would have been political to dismiss the complaint “because it’s the attorney general or it’s the first assistant attorney general” and the office didn’t want to open “a can of worms.”
Webster, and later Paxton, sought to have the lawsuit dismissed, arguing their actions were protected by separation of powers, a clause in the Texas Constitution that bars any branch from unduly interfering in another’s exercise of its core powers, and sovereign immunity, a principle that protects government officials from lawsuits and liability for official actions.
Solicitor General Aaron Nielson with Paxton’s office said the commission’s idea of a sanctionable offense is “so broad that every [Texas law license] is at risk.” Nielson noted the U.S. Supreme Court didn’t think Webster’s actions were “frivolous or sanctionable, nor did any party argue that it was.”
“The main complaint they have is about the legal theories, which we know were only resolved last year by the [U.S.] Supreme Court,” he said. “In my entire career, I have never seen anyone sanctioned for conduct remotely similar to what we are talking about here.”
The attorney general constantly has to make “hard calls” that don’t always break along party lines, Nielson said.
“The types of positions that the state has to take are going to be difficult and controversial, and it’s not just our ability to bring things. It’s our ability to defend actions by the other branches as well,” he said.
Nielson said the attorney general’s office won’t be able to represent the state’s interests if it “can’t make those types of calls because we’re worried about some bar complaint.”
A trial judge dismissed the lawsuit against Webster, but an appeals court reinstated it. Webster appealed to the Supreme Court, leading to Thursday’s oral arguments. A decision from the court is expected in the coming months.
Paxton also sought to dismiss his lawsuit. A separate judge rejected that request, and an appeals court upheld the ruling. Paxton’s appeal to the Texas Supreme Court has not yet been acted on.