When lawyers representing conservative powerbroker Michael Quinn Sullivan were last dragged in front of the Texas Ethics Commission, they adopted an unusual strategy. Instead of negotiating with the commission and accepting what would probably amount to a slap on the wrist, Sullivan went to war. The whole Ethics Commission—both how it operated and what it was trying to do—wasn’t just unconstitutional, it was un-American, tantamount to the Nazi army, he argued. His lawyers, led by former state Rep. Joe Nixon, intended to put the whole of the Ethics Commission on trial, preferably in federal court. They had their first chance today, and U.S. District Judge Sam Sparks was having none of it.
The hearing today was a continuation of a long-running fight between Sullivan—who leads a set of closely-related groups under the banner of Empower Texans or Texans for Fiscal Responsibility and has used so-called dark money to gain outsized influence in the state Republican Party—and the Ethics Commission, which is considering several complaints against Sullivan filed by Republican state Rep. Jim Keffer and former Republican state Rep. Vicki Truitt. To evaluate those complaints, the commission hoped to subpoena information about Sullivan’s groups, a move Sullivan appears intent to fight at any cost.
Sparks, a veteran jurist with a legendarily low tolerance for bull—recently, the FBI rounded up members of the Zetas cartel who tried in vain to bribe him—denied Sullivan’s request for an injunction to halt his disciplinary proceedings after an occasionally contentious hearing. But Sparks also characterized key aspects of the case in a way that would seem to discourage Sullivan’s aspirations to upturn the whole commission.
Then, at the end of the hearing, Sparks sought to find a middle ground between Sullivan and the commission—then angrily revoked his proposal and left the chamber when Nixon objected. The case is still in limbo, and likely will be for some time—but today was not a result Sullivan might have wanted.
The hearing was characterized by the same everything-but-the-kitchen-sink legal tactics Nixon employed in front of the Ethics Commission. For example: recently, Sullivan’s been “reporting” for the “journalism” site Breitbart Texas, an event met by astonished, laughing incredulity by both the state’s media and political establishment. Why was Sullivan, who has an enormous power base of his own, trying to join the lowly ranks of the fourth estate?
One possible answer was provided today: Sullivan’s lawyers invoked constitutional protections for the press. If Sullivan’s groups were forced to turn over information about their political activities, it could compromise Sullivan’s “sources.”
“We’re just kind of wasting time,” said Sparks, sweeping aside most of the constitutional concerns Nixon raised, leaving them for a later date. The judge was interested in only one thing: the scope of the subpoenas. He wasn’t sure if they were unconstitutional, he said, but he hoped to narrow them by consent of both parties.
“I know of no courtroom in the land where subpoenas this sweeping would be approved,” said Sparks. “This is asking for the cattle in the pen by asking for everything in the pen—the dirt, the mosquitos, the ticks.”
He asked the commission’s lawyer, Gunnar Seaquist: “Why couldn’t a meeting have been made and reasonable minds worked out what was necessary” instead of asking for everything?
Seaquist’s answer: Sullivan’s team was not willing to negotiate. “The sticking point has been that they feel the whole process is unconstitutional.”
So Sparks turned to Nixon. “You haven’t got much help from your clients in limiting these subpoenas,” he said. Nixon returned to the idea that the subpoenas were, on their face, a violation of the rights of Sullivan’s organizations.
“Our 100,000 subscribers,” Nixon said, referring to Empower Texans’ supporters, would be “subject to threats, abuse, and intimidation. My client is the same size as the Austin American-Statesman.”
Sparks appeared unmoved. “Frankly, I find the Austin American-Statesman a very thin paper,” he said.
Still, Sparks hoped to work out a compromise between Sullivan and the commission. He wasn’t bound to, he said, but it would save everyone a lot of time and money. So he told the courtroom he would be declining to issue an injunction to halt the commission’s proceedings—Sullivan’s primary aim—but proposed that the two sides meet and produce a proposal for Sparks about narrowing the scope of the subpoena process. It wasn’t what Sullivan wanted, but it was something to take home.
But that wasn’t enough for Nixon, who rose again to condemn the process. Piqued, Sparks withdrew his olive branch. There would be no report. “I see how this is going,” he said. Instead, Sparks gave Sullivan seven days to prepare an argument regarding the unconstitutionality of the Ethics Commission’s requests. Then he left the courtroom.
On Twitter, Sullivan was characteristically triumphant. There will be many more court hearings. But for Sullivan, it wasn’t a good first step.