House Republicans have sent to the Senate two articles of impeachment against Homeland Security Secretary Alejandro Mayorkas, a step that launches a trial in the Senate as GOP lawmakers seek to highlight President Joe Biden’s handling of immigration policy.
The Democratic-controlled Senate, however, is expected to quickly dismiss the charges without a trial or conduct a speedy trial that ends without a conviction.
Mayorkas, who took the helm at the start of the Biden administration, is the first Cabinet secretary to be impeached in nearly 150 years. House Republicans voted to impeach Mayorkas in February over his handling of the southern border by a narrow margin after failing to do so on their first try.
Republicans targeted Mayorkas as soon as they took control of the House last year, blaming the high number of border crossings on the Homeland Security secretary as the party faced pressure from its base to hold the Biden administration accountable on a key campaign issue.
Multiple constitutional experts, however, have said the evidence Republicans have put forward does not reach the high bar set by the US Constitution of high crimes and misdemeanors. Democrats have argued that the impeachment proceedings have been politically motivated and meritless.
The issue now moves to the Senate where Democratic senators — joined by some Republicans — have said they expect the chamber will move to dismiss the case before a full trial.
Senators could be sworn in as jurors as soon as Wednesday if it does not get dismissed outright without holding a trial.
The tumultuous way the impeachment process against Mayorkas has played out has led many Republicans to grow even more skeptical about the prospects of impeaching Biden, arguably their top investigative target this Congress. House Republicans do not have the votes or concrete evidence to impeach Biden given their razor-thin majority, leaving that separate impeachment inquiry stalled.
Mayorkas has pushed back against criticism of his leadership, and DHS has called the impeachment effort against him a baseless political attack.
“Despite warnings from fellow Republicans that this baseless impeachment effort ‘distorts the Constitution,’ House Republicans continue to ignore the facts and undermine the Constitution by wasting even more time on this sham impeachment in the Senate,” a DHS spokesperson said in a statement.
Republicans have targeted Mayorkas in an effort to attack Biden and his administration’s handling of the southern border. With border crossings reaching record highs and US cities across the country struggling to manage the influx of migrants, immigration has been a political vulnerability for Biden.
But the White House is trying to flip the script, citing Republicans blocking a bipartisan border deal as evidence that the party isn’t serious about border security.
After months of negotiations, Senate Republicans blocked a major bipartisan border deal earlier this year that would have marked a tough change to immigration law and would have given the president far-reaching powers to restrict illegal migrant crossings at the southern border. The legislation was aimed at closing loopholes in the asylum process, limiting the use of parole for migrants and giving the president new authority to essentially shut down the border to migrants when attempted crossings got too high.
The deal faced relentless attacks from former President Donald Trump and House Speaker Mike Johnson, a Louisiana Republican, who said the bill would be dead on arrival in his chamber – if it ever made it out of the Senate. Trump, who has made immigration a key plank of his presidential campaign, suggested on Truth Social that approving additional resources for the border would make Republicans “look bad.”
Referring to the Mayorkas impeachment proceedings, White House counsel’s office spokesman Ian Sams wrote in a memo, “this effort is a complete waste of time that constitutional and legal experts have said is ‘unconstitutional’ and that even Senate Republicans have made clear they don’t want to focus on.”
“But the worst part is that extreme Republicans have promoted this silly, baseless stunt at the same time they have killed an actual bipartisan border security bill that would have addressed the challenges at the border and delivered needed resources to DHS,” he continued.
GOP arguments for impeachment and pushback from constitutional experts
When Johnson originally informed Schumer he would be sending the impeachment articles over to the Senate, he laid out why he believed a Mayorkas impeachment was justified. Johnson claimed that Mayorkas directed department employees to violate US immigration laws and argued that the administration’s use of parole authority was unlawful.
House Homeland Security Chairman Mark Green of Tennessee who led the House investigation into Mayorkas argued the secretary committed high crimes and misdemeanors that amount to impeachable offenses.
“These articles lay out a clear, compelling, and irrefutable case for Secretary Alejandro Mayorkas’ impeachment,” Green said in a statement provided to CNN. “He has willfully and systemically refused to comply with immigration laws enacted by Congress. He has breached the public trust by knowingly making false statements to Congress and the American people, and obstructing congressional oversight of his department.”
And he has cited Supreme Court Justice Samuel Alito, arguing that he has indicated Congress could “employ the weapons of inter-branch warfare,” including impeachment, in light of a Supreme Court ruling that states could not challenge federal immigration law.
Democrats have slammed the impeachment effort, saying that policy disagreements are not a justification for the rarely used constitutional impeachment of a Cabinet official.
Legal scholars have also poured cold water on the legal arguments Republicans are using to support their impeachment effort.
Ross Garber, a Tulane University law professor who has represented many Republican officeholders as both the prosecution and defense in impeachment cases, told CNN that House Republicans have not presented evidence of impeachable offenses.
“I think that what the House Republicans are asserting is that Secretary Mayorkas is guilty of maladministration,” Garber said. “At least as framed right now, the charges don’t rise to the level of a high crime or misdemeanor.”
Former DHS Secretary Michael Chertoff, who served under Republican President George W. Bush, wrote in an op-ed, “as a former federal judge, U.S. attorney and assistant attorney general — I can say with confidence that, for all the investigating that the House Committee on Homeland Security has done, they have failed to put forth evidence that meets the bar.”
Constitutional law expert Jonathan Turley, who has been called by Republicans to serve as a witness in hearings, said: “There is no current evidence he is corrupt or committed an impeachable offense.” More than two dozen law professors wrote in an open letter that impeaching Mayorkas would be “utterly unjustified as a matter of constitutional law.”
Questions remain over Senate trial
The question now for Senate Democratic leadership is what a trial will look like and how exactly they will handle the impeachment articles.
While Senate Majority Leader Chuck Schumer has not specified exactly how he plans to handle the trial procedurally, the Senate could pass a motion to dismiss or table the articles on a simple majority vote on Thursday, the same day senators are sworn in. But some hard-right Republican senators are trying to find a way to force a full trial.
Schumer has previously said that they will wrap up the impeachment trial “as quickly as possible,” but he did not say if he will move to dismiss or table the articles.
Even if the Senate does not vote to quickly dismiss, it is highly doubtful the chamber would vote to convict Mayorkas, which would require a two-thirds majority vote – an exceedingly high bar to clear.
Senate Majority Whip Dick Durbin noted that he thinks it will be over “quickly,” and that several Republicans have indicated to him that they don’t support convicting Mayorkas.
“I’m not sure how Chuck’s going to approach it. There’s two or three procedural opportunities,” he told CNN’s Manu Raju. “I think it will be done quickly. I’ve talked to some Republicans who candidly don’t – they don’t take it very seriously.”
Republican Whip John Thune said that Senate Democrats running for reelection in red states would be in a “difficult position” if they vote to dismiss impeachment charges against Mayorkas when that trial gets underway.
Voting to dismiss would make Democrats appear they are turning a “deaf ear and blind eye” to the crisis at the border, he said.
He said he expects a “large majority” of Republicans to vote to have a full trial. But he also acknowledged that it’s unlikely all Republicans will vote together on that question and that some Republicans will join Democrats to dismiss the case.
Johnson has called on Schumer to not dismiss the articles quickly.
“We call upon you to fulfill your constitutional obligation to hold this trial” Johnson wrote to Schumer last month. “To table articles of impeachment without ever hearing a single argument or reviewing a piece of evidence would be a violation of our constitutional order and an affront to the American people whom we all serve.”
Senate President Pro Tempore Patty Murray, a Democrat of Washington, will oversee the proceedings.
In addition to Green, the other House Republicans tapped to serve as impeachment managers in the Senate include: Reps. Michael McCaul of Texas, Andy Biggs of Arizona, Clay Higgins of Louisiana, Ben Cline of Virginia, Michael Guest of Mississippi, Andrew Garbarino of New York, Marjorie Taylor Greene of Georgia, August Pfluger of Texas, Harriet Hageman of Wyoming and Laurel Lee of Florida.
CNN’s Ted Barrett and Morgan Rimmer contributed to this report.
