House Republicans have reams of data showing how broken the U.S. immigration system has become and plenty of evidence that Homeland Security Secretary Alejandro Mayorkas is effectively at fault as a rogue official.
As they prepare to deliver articles of impeachment for a Senate trial, experts say the Republicans lack an argument that Mr. Mayorkas’ behavior is what the nation’s founders had in mind when writing the Constitution.
“It’s not a valid ground for impeachment. It’s not treason. It’s not bribery. It’s not an ‘other high crime or misdemeanor,’” said Philip Bobbitt, a constitutional scholar and author of “Impeachment: A Handbook.” “It’s a textbook case of what impeachment is not.”
Michael Gerhardt, a law professor at the University of North Carolina who has been a frequent impeachment expert for Capitol Hill, said House Republicans have undermined their case with their treatment of other tools to address immigration, such as legislation.
“Mayorkas has been enforcing the law,” Mr. Gerhardt said. “They have impeached him as a political stunt designed to hurt President Biden and to showcase problems with Biden’s immigration policies.”
The two articles of impeachment accuse Mr. Mayorkas of intentionally subverting immigration laws and breaching the public trust.
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The first claim is based on the secretary’s reversals of Trump-era policies, taking the border from relative control to the worst chaos ever seen. The second claim is based on allegations that Mr. Mayorkas lied to Congress and the public about the border and his actions.
“From his first day in office, Secretary Mayorkas has willfully and consistently refused to comply with federal immigration laws, fueling the worst border catastrophe in American history,” House Speaker Mike Johnson, Louisiana Republican, said ahead of the 214-213 vote to impeach the homeland security chief. “Since this secretary refuses to do the job that the Senate confirmed him to do, the House must act.”
Mr. Bobbitt said those complaints amounted to maladministration, which was exactly what the founders were not trying to cover with impeachment. They had something more specific and substantive in mind, he said.
He pointed to a debate during the Constitutional Convention of 1787, when the language listed treason and bribery and George Mason proposed adding “maladministration.” James Madison countered that such an addition would render judges and executive branch officials into service at the pleasure of Congress. Mason withdrew the proposal, and the convention developed the critical language “other high crimes and misdemeanors.”
Mr. Bobbitt said those words are tied to treason and bribery, so an impeachable offense must be along those lines.
“It has to be something quite serious that really strikes at the heart of constitutional government,” he said. “If you have a treasonous official who is working for a foreign government in a time of war, that is a very serious matter. If you have officials who are selling their services rather than responding to their legal duties, that is quite serious.”
Democrats say the impeachment boils down to policy differences.
Jonathan Fahey, who ran U.S. Immigration and Customs Enforcement in the Trump administration and before that spent years as a federal prosecutor, said the argument against Mr. Mayorkas goes well beyond policy.
“He’s created a greater national security risk than anyone in any position, and it’s been deliberate because he knows if someone wants to come into the country and harm Americans, they can do so because they’re not going to get caught. He’s put open borders in front of national security,” Mr. Fahey said.
“He thinks his moral judgment supersedes the judgment and laws that Congress passed,” Mr. Fahey said. “He doesn’t just defy the oath, he really defiles the oath.”
House Republicans argue that their impeachment has the imprimatur of the Supreme Court. They point to a case last year involving Texas’ challenge to Mr. Mayorkas’ memo laying out priorities for immigration enforcement that effectively put most illegal immigrants out of danger of deportation.
Lower courts ruled the priorities a violation of the law, but the justices, in an 8-1 ruling, said Texas didn’t have standing to sue. They didn’t deal with the legality of Mr. Mayorkas’ policy.
As part of the oral arguments, though, the Biden administration’s solicitor general said impeachment would be an option for Congress to deal with “a dramatic abdication of statutory responsibility.” In his dissent, Justice Samuel A. Alito Jr. said the high court was leaving few tools other than what he called “interbranch warfare,” which he said included impeachment.
Rep. Mark Green, the Tennessee Republican at the helm of the impeachment process, said the case against Mr. Mayorkas is “exactly that — a dramatic abdication of statutory responsibility.”
“Secretary Mayorkas is the very type of public official the framers feared — someone who would cast aside the laws passed by a coequal branch of government, replacing those with his own preferences, hurting his fellow Americans in the process,” Mr. Green said during the impeachment proceedings.
Mr. Bobbitt said Republicans are misreading the court’s arguments. For one thing, Justice Alito’s opinion was a sole dissent, and he wasn’t embracing impeachment as an alternative. He was trying to hold it back.
“I say it’s a travesty because it completely turns Alito’s opinion on its head,” he said. “He’s not coming out for warfare.”
Mr. Gerhardt said the case doesn’t help Republicans’ argument.
“It is true that a rogue Cabinet official may be subject to impeachment, but there still must be credible evidence of that in the case of Mayorkas. And even the Republicans’ own experts, as well as Republican senators, say there is no such evidence,” he told The Washington Times.
Mr. Mayorkas is the second Cabinet secretary in history to be impeached and the first while still in office. War Secretary William Belknap resigned just ahead of his 1876 impeachment, in which he was accused of taking kickbacks to dole out contracts.
That, Mr. Bobbitt said, is the kind of thing the founders had in mind for impeachment.
Belknap was acquitted by the Senate. Some senators said he was beyond their reach after his resignation.
Mr. Mayorkas’ case now moves to the Senate, which returns this week from a lengthy break.
Senators’ first step will be to formally receive the articles of impeachment from the House and then to swear in as jurors for the trial.
The swearing-in is expected after the House returns Wednesday from its own lengthy break.
Democrats are reportedly eyeing ways to derail the trial with a quick motion akin to dismissing the charges. Republicans attempted that tactic during one of President Trump’s impeachment trials but failed to achieve the needed majority.
The Democratic caucus holds the majority now and could win the motion if all of its members back the idea. They may also win some Republican support. Several Republican senators said they don’t see impeachable conduct in Mr. Mayorkas’ actions.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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