By a vote of 214 to 213, the House of Representatives has approved two articles of impeachment against Homeland Security Secretary Alejandro Mayorkas. As legal experts from across the ideological and political spectrum have concluded, the charges against Mayorkas come nowhere close to the constitutional standard of “high Crimes and Misdemeanors.” The articles are also facially and substantively defective in many other respects. Upon convening as a court of impeachment, the Senate should swiftly reject the articles as a matter of law, rather than holding a full-blown merits trial.
The articles adopted by the House are long, confusing, and poorly drafted. As measured against the precise and lawyerly articles from prior impeachment proceedings, the Mayorkas charges read like amateur political hit-jobs. The first article devotes fifteen pages (and sixteen separate subsidiary claims) to a sweeping accusation that Mayorkas has generally failed in his administration of immigration law and policy. The second article faults him for describing the border as “secure,” criticizes his response to routine oversight requests, and accuses him of abandoning a grab-bag of border security initiatives favored by some Republicans.
To describe these charges as weak would be a major understatement. Indeed, the first article gives away the game by asserting that a “critical tool for Congress to influence the Executive Branch to comply with the immigration laws of the United States is impeachment.” That assertion underwrites both articles—and is flat wrong. It is a fundamental and universally accepted principle that the Constitution does not authorize impeachment based on inter-branch policy disputes. Thus, when the House has previously been urged to impeach federal immigration officials on similar grounds, it has rejected such efforts every time. More broadly, despite plenty of heated disagreements with cabinet officials, the House had (until Mayorkas) impeached only a single one: William Belknap, who was impeached in 1876 (just after resigning in disgrace) for a corrupt kickback scheme.
By virtue of this history and precedent, calls to impeach Mayorkas have been widely denounced among experts, including such conservatives as Michael Chertoff, Ross Garber, and Jonathan Turley. Even the Wall Street Journal opposes the Mayorkas impeachment.
If sanity had prevailed, the House would have refused to charge Mayorkas. In fact, sanity did prevail the first time around. It took a second attempt for House Republicans to cross this Rubicon—a breach of precedent they managed by a mere one-vote majority and despite impassioned, bipartisan opposition. In passing the articles, House Republican leaders further undermined the seriousness of their efforts by naming Representative Marjorie Taylor Greene as one of the managers to prosecute charges against Mayorkas.
The action now shifts to the Senate, which wields “the sole Power to try all Impeachments.” The Senate enjoys broad latitude in deciding how to exercise that power. Nothing in the Constitution—or in the Senate rules—requires that every impeachment trial involve full-blown proceedings of the sort that occurred during the recent trials of former President Donald J. Trump.
Nor would such a trial be appropriate here. Articles of impeachment are intended as deadly serious business, not platforms for political spectacle and policy dispute. The charges against Mayorkas are so plainly defective under the Constitution that a trial would merely waste Senate time. Indeed, it is impossible to imagine what a trial on these spaghetti-at-the-wall charges would involve. House Republicans apparently hope to put the entirety of federal immigration enforcement up for debate, but in no rational sense would that be a “trial.”
Rewarding such behavior with hours of Senate floor time would only invite further degradation of the meaning and purpose of impeachment, which was intended as a solemn power. The Senate should send a message that impeachment is reserved for great and dangerous offenses against the nation; it is not a tool for a House majority to secure free publicity for policy attacks on an administration.
The Senate has several options to achieve that goal. Most straightforward, it could decide the case quickly and fairly based on a motion to dismiss the charges—which could be heard at the very outset of the trial (either immediately after the Senate convenes as a court of impeachment or, alternatively, following a short adjournment to allow the issuance of a summons to Mayorkas and the submission of pre-trial motions).
There is clear precedent for a motion to dismiss articles of impeachment. During its trial of President Bill Clinton, the Senate adopted rules providing for a motion to dismiss following initial evidentiary presentations by the parties (and Senator Robert Byrd (D-WV) ultimately offered such a motion). During the first Trump impeachment trial, the Senate allowed the parties to file motions before presenting their cases; it was widely expected that Trump would move to dismiss the charges, but he declined to do so after meeting heavy Republican resistance. In the second Trump impeachment case, the Senate adopted rules that required the parties to debate a dispositive legal issue before the trial itself began. Finally, the Senate addressed pre-trial motions to dismiss in the cases of Judge Alcee Hastings and Judge Thomas Porteous.
Although the Senate has not previously granted a motion to dismiss articles of impeachment, it has never been presented with charges so glaringly defective as those against Mayorkas. These articles thus deserve different and less deferential treatment.
In voting on a motion to dismiss, senators can draw guidance from judicial practice. For instance, they can ask whether the articles allege conduct that (even if proven true) would fail to qualify as “high Crimes and Misdemeanors.” They can ask whether each of the articles fails to properly allege a single unified offense or course of conduct, and instead bundles an array of unrelated accusations into a prolix omnibus charge that raises grievous due process or other concerns. They can ask whether compound charges like these create an undue risk that a conviction might occur without two-thirds of the Senate agreeing on any specific factual accusation. And they can consider a range of other legal issues related to the substance and structure of the articles, as well as the adequacy of the process afforded to Mayorkas in the House’s rush to conclude the impeachment proceedings.
Apart from a motion to dismiss, the Senate has two separate options to avoid needless floor proceedings. The first would be to resolve the matter through a point of order. The leading precedent here comes from the second Trump trial, where Senator Rand Paul (R-KY) raised a point of order to question the Senate’s jurisdiction to try a former president—and where the Senate then voted on the issue. If a point of order is raised in the Mayorkas proceedings, the Senate will need to decide whether articles of impeachment may properly be challenged in that manner, or whether points of order are reserved only for limited purposes (e.g., challenges bearing on the Senate’s jurisdiction). That issue would likely go to the full Senate for resolution, though the Parliamentarian might also play a role.
Alternatively, as authorized by its rules and Supreme Court precedent, the Senate could form a special committee to handle trial proceedings (including any pre-trial motions). That is how the Senate has tried several judicial impeachments—though setting up any such committee requires time and energy, and that process would itself likely spark publicity and political conflict. If the Senate takes that road, its committee would ultimately report back to the full Senate with a record of proceedings, and the full Senate could then conduct further activity or simply vote on the articles.
Whichever of these vehicles the Senate chooses, it should quickly dispose of the Mayorkas impeachment. There is no sound reason for these charges to reach a trial, and there are powerful reasons to reject them outright.