The eyes of Texas’ legal establishment are on its disgraced attorney general, Ken Paxton.
The Texas Bar has taken steps to discipline Paxton for his fraudulent attempt to sell Donald Trump’s Big Lie to the Supreme Court, and Florida Attorney General Ashley Moody should be watching very closely. Moody tried to sell the Big Lie, too, so the Paxton case reflects on her.
Not since the slave states tried to destroy the Union has there been such damage to national unity as Trump’s attempt to overturn the 2020 election by claiming it was stolen from him. Most Americans don’t believe him, but more than two-thirds of Republicans do, polls show.
It is existentially dangerous. Almost everywhere they are in control, Republican politicians have acted out the Big Lie to make voting more difficult for minorities, subvert the ways votes are counted, and create a pretext for overturning elections they lose. They have sowed our democracy with seeds of distrust to be exploited by Trump or another would-be tyrant.
As the next election nears, it bears remembering who has facilitated the Big Lie. Moody and 16 other Republican attorneys general asked the court to let them file briefs in support of Paxton’s case against counting Joe Biden’s electoral votes from Pennsylvania, Georgia, Michigan and Wisconsin.
There were volatile misgivings among Moody staff members. One of them called Paxton’s case “bats–t insane.”
The court shared those sentiments. Justices voted 7-2 to refuse to hear it, saying Texas lacked standing to complain how other states vote. The justices also disposed of an attempt to intervene filed by 126 Republican members of Congress — 10 of them from Florida.
A highly respected former Florida Supreme Court justice, Charles Wells, wrote last year that Moody’s meddling in the Big Lie was “a grave mark against your service as attorney general,” and that as a member of the Bar, she has “an ethical obligation not to join in frivolous, meritless litigation.”
Now, the Texas Bar’s Commission for Lawyer Discipline says Paxton’s claims “were dishonest … not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence.” Paxton did not disclose that some of his complaints had failed in other courts, according to the Bar, and “misrepresented” that Texas had substantial evidence.
Texas rules say “a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Punishment can range from reprimand to disbarment.
Similar language is in Florida’s Code of Professional Responsibility.
If the Texas court finds Paxton guilty, it would be a major embarrassment to Moody at a time when she’s seeking re-election.
But that’s all it would be. An unpublished ruling by the Florida Supreme Court in 1974 prohibited the Bar from potentially disbarring any public official whom the Constitution requires to be a member of the Bar, including judges, prosecutors, public defenders and the attorney general.
They’re immune even to investigation until they are out of office, by which time witnesses’ memories may have faded.
The Bar used that unwise precedent to rebuff a petition calling for Moody’s discipline signed by some 1,700 lawyers over her support for Paxton. Later, the Board of Governors proposed asking the Supreme Court to codify the rule publicly. No such request appears on its docket, however, and a court spokesman says there is no pending case.
But Moody is not immune to public opinion, which should hold her to account for debasing her office with partisan politics.
Her predecessor, Pam Bondi, did that too, seemingly auditioning for a job with Trump, whose fraudulent Trump University she refused to investigate. Out of office, she joined his defense team against Trump’s first impeachment and gave full-throated support to his Big Lie. Now part of Ballard Partners’ lobbying firm, Bondi has no immunity from Bar discipline.
Other Florida attorneys general of both parties were more mindful of their fundamental responsibility to be the “people’s lawyer.”
Moody has been better than Bondi at enforcing Florida’s unfair and deceptive practices law. Last week, she scored a $21.7 million judgment and a lifetime ban against a rogue moving broker network.
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But wearing her political hat, she tried vainly to spin victory from a federal appellate court’s rejection of the main thrust of Gov. Ron DeSantis’ attack on social media companies. She claimed that a panel of the 11th Circuit Court of Appeal had “upheld major portions” of the law. It did just the opposite.
In ruling that Florida could not stop social media companies from blocking politicians like Trump, the panel cited as the “pathmaking case” the unanimous 1974 Supreme Court opinion, Miami Herald v. Tornillo, which overturned a Florida law requiring newspapers to give equal reply space to candidates they opposed. Social media companies are similarly protected by the First Amendment, the panel said.
Moody arguably has a duty to defend even bad Florida laws — but not to misrepresent the outcomes.
The recent massacres of shoppers at a Buffalo supermarket and children and teachers at an elementary school in Texas also bring to mind how Bondi successfully urged the Florida Supreme Court to bar from the 2020 ballot a voter initiative banning assault weapons. Her brief and the court’s 4-2 decision echoed the NRA’s arguments.
She also opposed a ballot initiative to legalize recreational marijuana use by adults, and so did the court, 5-2. Sharing the objections of both political parties, she opposed the “All Voters Vote” initiative that would have created open, all-party primary elections. The court allowed it for the 2020 ballot, but it got only 57% of the vote instead of the 60% necessary. Along with other GOP attorneys general, she tried to persuade the U.S. Supreme Court to kill the Affordable Care Act. It was Bondi who had signed the brief, but Moody willingly took her place upon election.
The attorney general can be a partisan shill or she can be the people’s lawyer, but she can’t be both.
The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker, Viewpoints Editor Jay Reddick and El Sentinel Editor Jennifer Marcial Ocasio. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Anderson. Send us your thoughts at firstname.lastname@example.org.