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Don't expect the Mayorkas impeachment trial to last long

Brent D. Griffiths   

Don't expect the Mayorkas impeachment trial to last long
  • Senators will handle DHS Secretary Alejandro Mayorkas' impeachment soon after they return to Washington.
  • House Republicans are expected to formally present their articles on Wednesday.

Homeland Security Secretary Alejandro Mayorkas' historic impeachment trial will likely be over before you even notice.

Senate Majority Leader Chuck Schumer has indicated that senators will likely be sworn in as jurors on Thursday. A day earlier, 11 House Republican impeachment managers, including Rep. Marjorie Taylor Greene of Georgia, will formally march across the Capitol Rotunda to deliver two articles of impeachment against Mayorkas. Mayorkas is just the second Cabinet official in American history to be impeached. He has strenuously denied the charges that he failed to enforce the nation's immigration laws.

Conservative legal scholars and even three House Republicans have questioned Mayorkas' impeachment. They have concluded that the GOP case against him is essentially a proxy trial of President Joe Biden's handling of immigration. In that way, they are fearful of a new precedent that allows for Cabinet officials to be impeached for policy disputes between the branches of government.

House Speaker Mike Johnson called for senators to hold a full trial. But even Senate Minority Leader Mitch McConnell believes it's likely the matter will be quickly dismissed. No one in Washington seriously believes Mayorkas is in jeopardy of being convicted, which would take a two-thirds vote and thus require the support of scores of Democrats.

"[T]he Democrats have a majority, so it may not go on very long," McConnell told reporters earlier in the week. "But my preference would be to actually have a trial. But I think the majority is likely to prevent that."

Here's how Democrats will likely handle Mayorkas' impeachment.

Didn't the House impeach Mayorkas almost two months ago?

Yes. After failing to impeach Mayorkas on the first vote, House Republicans narrowly impeached the Homeland Security secretary on February 13.

Since then, the GOP has held onto the articles as Republicans struggled to meet two deadlines to avoid partial government shutdowns. The delay has led to some potential awkwardness, namely that since Speaker Mike Johnson appointed Greene as an impeachment manager she moved to begin the process of removing him from power.

This is arguably Greene's highest profile role she has held since joining Congress.

How will Democrats handle the charges?

There are a couple of avenues Democrats can use to quickly dispose of the articles. The most straightforward would be for a senator to file for dismissal of the charges. While senators are sworn in as jurors during all impeachment trials, they don't act like a typical jury. They don't have to try to avoid the news. They can openly express their views of the case beforehand. And if the trial were to reach the stage, they would have the opportunity to provide written questions both to Mayorkas' defense team and to the House managers.

Based on historical precedent, a senator could file for dismissal shortly after the Senate formally moves to become a court or in a brief period that allows for pre-trial motions, according to a group of impeachment experts. The experts, who wrote in detail about the trial procedure for Just Security, also point out that there is precedent for such a motion to dismiss. Sen. Robert Byrd, a West Virginia Democrat, unsuccessfully offered a motion to dismiss the articles of impeachment against President Bill Clinton during his 1999 trial. Clinton was later acquitted.

It is worth noting, as The Washington Post pointed out, that the Senate has never before dismissed charges against a current official without conducting a trial. It has previously dismissed articles against two federal judges who resigned after their impeachments.

How else could Democrats attempt to move on?

One of the other main ways Democrats could move to avoid the spectacle of a trial is to refer the matter to a special committee. In the past, the Senate has taken such actions when it handled the impeachments of federal judges. Of course, the impeachment of a Cabinet official like Mayorkas might strike lawmakers differently than those affairs.

A special committee would then be tasked with conducting the trial. Unlike a full trial, a committee would deal with the proceedings off of the Senate floor and without requiring the involvement of all 100 lawmakers.

The committee would report back to the full Senate. At that point, senators could then do more or simply just vote on the articles after examining the committee's record.

Is it a sure thing there won't be a full trial?

Few things are ever certain in Washington, but Democrats could make any of these motions a simple majority vote. Republicans' only hope would be that Democratic senators facing tough reelection bids would refuse to support such moves in the face of political pressure.

One Nation, a conservative group, has spent over $15 million on ads focused on immigration hitting Sen. Jon Tester, a Montana Democrat who is facing one of the toughest reelection bids, Politico reported. Tester previously said he would support a motion to dismiss.

It is worth pointing out that the most conservative Senate Democrat, Sen. Joe Manchin of West Virginia, has previously slammed the impeachment. Republicans could also lose one of their own votes. Sen. Mitt Romney of Utah has expressed skepticism about the case.

Why are even some Republicans against Mayorkas impeachment?

Three House Republicans, Reps. Reps. Mike Gallagher of Wisconsin, Ken Buck of Colorado, and Tom McClintock of California, all voted against impeaching Mayorkas. All three lawmakers cited concerns that by impeaching Mayorkas they were lowering the bar for future impeachments.

At issue is whether, as the trio believed, the charges against Mayorkas amount to "maladministration." Jonathan Turley, a conservative legal scholar, has also concluded that is the case. Turley has argued that the founders and framers specifically rejected setting the bar for impeachment at a lower threshold.

"[B]eing a bad person is not impeachable—or many cabinets would be largely empty," Turley, a George Washington University Law School professor, wrote. "Moreover, being bad at your job is not an impeachable offense. Even really bad. Even Mayorkas' level of bad."

The Wall Street Journal editorial board is also opposed to impeachment, citing similar grounds. The board pointed out that if Republicans loathe Biden's immigration policies their fight is better suited with the president, not an administration official simply carrying out his policies.

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