Texas Attorney General Ken Paxton never would have been sent to prison if his fraud case had gone to trial, the prosecutors now say.
In the week since Paxton, a Republican, cut a deal to have his charges dropped and upcoming trial canceled, the two special prosecutors have traded barbs over how each handled the case. They’ve questioned each other’s choices, motives and even whether they’ve always been truthful with each other.
From indictment to deal, the case lasted nine years. The prosecutors entered the case as partners, longtime colleagues, even friends, and leave it as adversaries.
The one thing they do agree on: Neither thinks Paxton was going to end up behind bars.
During a Friday interview on WFAA, lead prosecutor Brian Wice was asked if prison was ever a likelihood if the case had gone to trial.
“The answer to your question is two words: absolutely never,” Wice said.
“I never envisioned any scenario, any universe in which, by which, through which, that a judge or jury put Ken Paxton in prison based on either the third-degree felony failing to register as an investment adviser rep, or, for that matter, the first-degree felony securities fraud cases,” he added.
In an interview with The Texas Newsroom, Wice’s former co-counsel agreed.
“That's probably the one true thing that Brian [Wice] said,” said Kent Schaffer, who resigned from the prosecution in February after he and Wice split over how to handle the case.
Sure, Paxton was facing multiple felony charges. He was accused of defrauding investors in a North Texas tech company, and for failing to register with state securities regulators. But the prosecutors pointed out his alleged crimes did not involve violence. Yes, Paxton has been accused of corruption, repeatedly, and he still remains under active FBI investigation.
But he has never been convicted of a crime, and steadfastly maintained his innocence.
Schaffer said the case was winnable at trial. But he added that in his experience most white-collar prosecutions end with the accused getting probation or making some kind of pretrial diversion deal like the one Paxton got, not with prison time.
“The only way you would ever get a prison sentence is if you got 10 angry Democrats, you know, on a jury that hated Ken Paxton and wanted to put him in prison. That’s not going to happen,” he said.
Paxton’s lawyers say the prosecution’s remarks prove the case never should have been brought at all, or should have been resolved years ago.
“What fueled the prosecution was notoriety and request for payment,” Philip Hilder said. “There is no other plausible explanation why this case took nine years to resolve.”
Dan Cogdell added: “If [the prosecutors] were never seeking pen time, they never shared that with us.”
The deal: community service, legal ethics and $271,000
Under the terms of the final deal announced last week, Paxton will have to perform 100 hours of community service, take 15 hours of legal ethics courses and pay around $271,000 in restitution to the two men who accused him of defrauding them. If he doesn’t complete the terms, or steps out of line in some other way, Paxton will be back in court.
Paxton’s accusers were fine with the deal, their lawyer told The Texas Newsroom.
“Recently, we were contacted by the prosecutors, who asked whether restitution would be satisfactory. After thinking about it, we decided that it would be, and we’re glad this is closed,” Terry Jacobson said.
Since the beginning, Wice has consistently said his job was not to send Paxton to prison. He reiterated this Friday, noting his oath “mandated that my primary duty is not to convict, but to seek justice.” What matters is the accusers were made whole, he said.
But not everyone has been happy with the deal.
Wice said he’d received a slew of hate messages from people who wanted to see Paxton answer to a jury. They questioned why a deal would be cut the month before Paxton was scheduled to go to trial — especially since the case had dragged on for as long as it did.
Schaffer, who was not part of the final negotiations, said it was “kind of stupid” that Paxton will do his community service in Collin County, where the attorney general has a home and practiced law for years. He believes Paxton will get more favorable treatment there.
“Anybody with an IQ over 60 understands Paxton’s never going to do one hour of community service,” Schaffer told The Texas Newsroom.
Cogdell said Paxton will “absolutely” comply with the terms of the deal.
Schaffer tried to cut a different deal with Paxton’s defense team before he stepped off the case. But Wice scuttled it, he said.
Then, on Feb. 16, the day Schaffer resigned from the case, Wice publicly criticized Schaffer’s deal as tantamount to giving Paxton “a cocktail, a hot meal and a breath mint” because he said it did not include restitution for the accusers.
Schaffer said his deal would have included restitution if Wice hadn’t cut off talks. Clapping back at his former partner, he told The Texas Newsroom that Wice’s deal is like giving Paxton “a cocktail and a hot meal and a backrub.”
He said Wice is unfairly criticizing his work on the case now to throw off scrutiny: “At this point, he's just looking for somebody to get all the negative attention off him.”
In three pages of comments provided to The Texas Newsroom, Wice said Schaffer was the one unfairly criticizing him.
The attorney general will be supervised by Wice, his new co-counsel Jed Silverman and the Collin County head of community supervision and corrections to ensure compliance, he said. He added his deal was far tougher than anything Schaffer presented.
Wice accused Schaffer of starting the fight.
“It was Kent [Schaffer] who chose to call me out on his way out the door, accusing me of, among other absurdities, staying on the case so I could see my name in the papers,” Wice said. “My oath as a special prosecutor mattered more to me than a paycheck, podcasts, or publicity.”
Trial prep: a dead witness and no guarantee of prison
Schaffer handled much of the pretrial preparation. After he stepped away from the case, Wice and Silverman took a look at the evidence.
In a Bloomberg article published Monday, Wice said Schaffer failed to get a deposition from one of Paxton’s two accusers before he died and didn’t share important information about a key witness with him. It was at this point that talks shifted to a deal with restitution, according to Bloomberg.
Schaffer said he always knew the witness in question was not going to help their case. He told The Texas Newsroom he at times didn’t share details of his strategy with Wice because he was afraid he would not keep the information confidential.
“When you're working with Wice, there's more leaks than the Iraqi Navy,” Schaffer said.
Wice responded, "While I’m flattered that he would poach my catch phrase about the Iraqi Navy, his allegation is a work of pure fiction. I’ve come to learn that whenever Mr. Schaffer opines on the Paxton case, he has such a high regard for the truth that he uses it sparingly.”
Schaffer said drafts of a deal were exchanged with Paxton’s defense team back in 2019 or 2020. Philip Hilder, one of Paxton’s defense attorneys, confirmed that a deal was discussed a number of years ago but never materialized.
Working without a paycheck
Schaffer and Wice, both private practice attorneys based in Houston, were brought on to handle the Paxton prosecution after the district attorney in Collin County recused himself.
Since the alleged crimes took place there, Collin County taxpayers are on the hook to pay the two men. After cutting one six-figure check in 2016, the county commissioners, who handle the local budget, have refused to pay them again. Wice and Schaffer say they are each owed about a couple hundred thousand dollars for their work on the case.
A lawsuit over their back pay is still active.
As the April 15 trial date loomed, Schaffer said he was unwilling to fund the final weeks of pretrial preparation out of his own pocket. This would include flights and hotel costs for witnesses. He had already spent $140,000 of his own money on the case, he said, and was losing $220 in overhead for every hour he worked unpaid.
“I have no regrets about how it turned out,” Schaffer said. “It's not my responsibility to finance the prosecution of Ken Paxton.”
Wice, too, stood by how he handled the case and the deal he ultimately made.
“At the end of the day, I learned the hard way that honoring my oath as a prosecutor, especially in a high-profile case like this, was about doing the right thing for the right reason at the right time without regard to the consequences, media spin, and the venom, vitriol, and lies spewed by the haters, second-guessers, and Internet trolls,” he said.
This story has been updated to include an additional comment from Brian Wice.
