HOUSTON — Despite professing compliance with a court’s gag order, the special prosecutors in the criminal case against Attorney General Ken Paxton have communicated with reporters continually since their appointment.
In a one-year span, the prosecutors had more than 100 contacts with reporters, according to records they turned over in a response to a public records request.
It’s an open question whether any of their emails and phone calls with reporters run afoul of an order issued by Judge George Gallagher on Jan. 8, 2016, ordering the parties not to “engage in conduct calculated to, in effect, try these proceedings in the media in violation of Rule 3.07 of the Texas Disciplinary Rules of Professional Conduct.”
For one, that’s because Rule 3.07 itself is vague, according to experts. But it’s also an open question because Gallagher’s order could well be found unconstitutional, as gag orders often are, if it were ever challenged.
In June 2016, for example, the Texas Court of Criminal Appeals upheld a decision to invalidate a trial judge’s gag order in the Waco biker shooting case.
What is clear is that the special prosecutors themselves — Brian Wice, Kent Schaffer, and Nicole DeBorde — have taken the position that the gag order is binding and crucial to a fair trial.
Indeed, they were the ones who wrote up a draft of the order for Gallagher to sign.
When The Texas Monitor reported last month that Schaffer had been billing hours on the case while on exotic international vacations, Shaffer said that he was “precluded from commenting due to a gag order.”
When The Texas Monitor reported on a sealed legal filing that accused the prosecutors of misleading a grand jury, Wice said that he was “ethically precluded” from responding to a request for comment, owing to another secrecy order by Gallagher.
Most consequentially, in February, the prosecutors managed to override Paxton’s right to a jury trial in Collin County by arguing that Paxton and his supporters had tainted the jury pool by trying the case in public media.
“Team Paxton has utilized every conceivable form of mass media available — radio, television, print, and social media, especially Facebook — to vilify, malign, and defame the Special Prosecutors, the victims in the securities fraud counts, Byron Cook and Joel Hochberg, and, to add insult to injury, this Court,” they wrote.
Their examples were a couple of news reports and blog posts on developments favorable to Paxton, a four-minute video that Paxton posted to Facebook professing his innocence, and a few public comments made by his supporters.
The “fundamental and guiding precept,” they wrote, citing an ancient decision, was that the “purity of the jury box” was of such importance that the law “seeks to shut up every avenue through which… any improper influence could possibly make an approach to it.”
They won their argument.
But the whole time, they had been the ones talking to the press.
According to a review of state and federal law by the Tarrant County District Attorney’s Office, the standard is that “if a trial court determines that there is a substantial likelihood that extrajudicial commentary by trial participants will undermine a fair trial, it may impose a gag order on the participants, but only if the order is also narrowly tailored and the least restrictive means available.”
While that sort of determination involves a lot of judgment calls, that “narrowly tailored” language is often used to overturn vague, general prohibitions.
Earlier this year, Tony MacDonald of the grassroots conservative group Empower Texans filed a public records request with the special prosecutors seeking all records of their contacts with the media over the previous year.
The prosecutors turned over 103 of their emails to reporters between Jan. 12, 2016 and Jan. 12, 2017. Most of the emails were brief, but MacDonald thinks they didn’t give him everything, and considered suing over it.
“What I did get from them showed evidence of other email threads that I was not given,” MacDonald said. “They did not give me any text messages. They only gave me emails. That said, what I did receive shows that they are regularly coordinating with the Dallas Morning News and other mainstream media outlets, all while complaining their critics are tainting the jury pool.”
As well, Wice and Schaffer didn’t produce records of their phone calls with reporters, although the emails suggest chummy relations with some.
For example, after a Dallas Morning News reporter emailed Wice and Schaffer about a new attorney working on Paxton’s defense in a federal case that was soon to be dismissed, Schaffer wrote back to say that he had “Never heard of him. Looks like we set off the Lawyer Relief Act…”
After Breitbart ran an article accusing that reporter of stalking Paxton, Wice sent her a clip of Glenn Close in “Fatal Attraction” telling Michael Douglas, “I’m not going to be ignored.”
In another one of their many friendly exchanges, the reporter asks for a copy of a brief by Paxton’s attorneys for a story, and Wice says, “Sure. But I’m working on a post-hearing reply you should wait on. Unless you order me to send… now. LOL.”
When a Houston Chronicle reporter took an interest in radio spots touting this reporter’s work, which the prosecutors made part of their venue argument, Wice sent her transcripts.
When a reporter for Texas Lawyer was unclear of the date of Paxton’s alleged offense in the securities registration charge, she asked Wice last year to clarify. It was July 12, 2012, he told her. Actually, the date given in the indictment is July 18; the defense later accused the prosecutors of making up dates to get around a statute of limitations.
In July 2016, there’s an email from Wice to an Austin bureau chief of one newspaper suggesting that he take a look Paxton’s new financial disclosure statement, which included a $100,000 donation from a friend to his legal defense.
Later that month, stories appeared in several papers alleging that donation might be illegal. When those stories broke, Wice told another reporter, “All I can say off the record is that this matter is on our radar.”
Ultimately, the allegation proved baseless.
The correspondence also includes dozens of quotes provided for news reports.
When the prosecutors filed their motion to transfer the trial out of Collin County, Wice emailed a copy to Houston TV journalist Miya Shay, telling her to “check out the part about your buddy Wayne Dolcefino.”
Dolcefino is a TV reporter turned consultant and investigator who provided copies of police reports from the Paxton case to this reporter.
Although police reports in Texas are sometimes considered public record, these records were apparently shared with the defense as part of pretrial discovery of exculpatory evidence. Gallagher had ordered that those shared records be kept secret.
The prosecutors made Dolcefino’s “leak” a centerpiece of their argument for why the trial had to be moved.
By coincidence, or not, Gallagher had imposed the gag order a year earlier, on Jan. 8, 2016, at the request of the prosecutors, after the Open Records Division of the Attorney General’s office ruled that they had to make those discovery records available to a reporter who had requested them.
Schaffer’s billing records for Jan. 8 mention the request letter from this reporter, and time spent to “Review Proposed Order Re: Disclosure.”
Gallagher signed the order that same day.
Within the week, Wice had emailed a reporter at one publication a copy of a court order on attorney’s fees, writing “see attached… you got it from the website,” and emailed a reporter at another a copy of the gag order, which might be the first time anybody has ever violated a gag order with a gag order.