By Karoun Demirjian
Senate leaders plan to move quickly this month to reject the articles of impeachment against Homeland Security Secretary Alejandro Mayorkas, setting up a speedy trial in hopes of preventing House Republicans from turning the chamber into a political spectacle.
Sen. Chuck Schumer, D-N.Y., the majority leader, has not yet determined exactly how to go about truncating the proceedings, according to people familiar with the continuing discussions, who spoke on the condition of anonymity to describe plans that were still under development. But he is aiming for quick action, beginning Feb. 28, the day the House is expected to deliver the charges, that could be over in just a couple of days.
Schumer still has almost two weeks before House managers plan to formally present senators with the articles of impeachment against Mayorkas, which the House narrowly approved Tuesday on a second try after they were defeated the week before. They accuse the secretary of refusing to enforce immigration laws and breaching the public trust regarding the state of the U.S. border with Mexico, effectively declaring President Joe Biden’s immigration policies a constitutional crime.
Senate leaders are betting that there is enough Democratic anger and Republican exasperation at the precedent-breaking nature of the charges — and with the way Mayorkas’ impeachment was handled — to swiftly exonerate him, either by throwing out the charges entirely or by moving to bring the proceedings to an early close.
And they have no doubt that they would have the votes to acquit him. A conviction would require a two-thirds majority, meaning that at least 18 senators on the Democratic side would have to join Republicans in finding Mayorkas guilty.
“These charges are a total sham — really shameful — and they deserve absolutely no dignity,” said Sen. Richard Blumenthal, D-Conn., a member of the Judiciary Committee. “They’re purely a political stunt by the far-right fringe of the MAGA movement and, I think, should be dismissed summarily.”
Under the Constitution, the Senate must consider impeachment charges approved by the House, meaning that a trial of some sort, with senators sworn in as jurors, is unavoidable once the articles are delivered. But from that point on, there are many options for how to proceed.
House Republicans have clamored for a full trial.
“If they ignore this and just throw it in the trash can without taking it as seriously as the American people do, then there will be accountability and consequences,” Rep. Steve Scalise, R-La., the majority leader, said of the Senate on Wednesday morning. “They have to do their job.”
The Senate has held a handful of high-profile impeachment trials, most recently the 2020 and 2021 trials of former President Donald Trump, both of which ended in his acquittal. The only other Cabinet secretary to have been impeached, William Belknap, who resigned before the House approved the charges against him in 1876, was also acquitted.
But a full trial is not a requirement, and Senate leaders can lay out their own rules for how to conduct the proceedings. In most modern impeachments, that has included a chance for any senator to move to dismiss the charges, and a simple-majority threshold for doing so.
“There is substantial precedent for considering motions to dismiss at various stages of impeachment trials,” said Joshua Matz, a constitutional lawyer and an expert on impeachment who worked on the House teams that impeached Trump.
During former President Bill Clinton’s 1999 impeachment trial, Sen. Robert Byrd, D-W.Va., filed such a motion right after the prosecutors and the defense presented their evidence. It was defeated mostly along party lines, and the trial lasted a total of about five weeks before Clinton was acquitted.
During Trump’s second trial, Sen. Rand Paul, R-Ky., sought to cut short the proceedings with an objection, arguing that it was unconstitutional to try a former president. That, too, failed when five Republicans crossed party lines to join Democrats in voting to allow the trial to continue.
In Mayorkas’ case, such a motion would be all but certain to succeed, given that Democrats would be highly likely to hold together to push it through.
Senate Democrats are outraged about the impeachment of Mayorkas, and even some Republicans have been cool to the idea, reluctant to plunge into a lengthy political spectacle that has no chance of succeeding. Some share the concerns aired by former homeland security secretaries and many constitutional law experts — including conservatives — who have said the charges do not rise to the level of a high crime or misdemeanor, the constitutional standard for a conviction.
They are especially leery of spending time on the matter at a time when Congress will be staring down another pair of government shutdown deadlines, with federal funding for some agencies scheduled to lapse on March 1 and others on March 8.
Sen. Joe Manchin, D-W.Va., told reporters last week that he wanted to “get rid of” the charges against Mayorkas “as quickly as possible,” and that he believed there would be enough support in the chamber to dismiss them early on.
Some Republicans have described the exercise as futile.
“It’ll be dead on arrival when it comes over,” Sen. James Lankford, R-Okla., said of the charges last week, adding that getting rid of Mayorkas would not fix the problems at the border.
“It’ll still be the same policy, even if Mayorkas left,” Lankford said. “We’re going to have the same result, because we’ve got the same president who’s driving the policy.”
Should the Senate succeed in dismissing the charges against Mayorkas, it would spare Republicans a potentially uncomfortable vote in which some would have to choose between a guilty verdict on charges they consider lacking and a not-guilty vote that would exonerate a Biden administration official, angering their right-wing base.
For Mayorkas, there would be no practical difference between being acquitted and having the charges dismissed.
“If you are charged criminally and the court dismisses the indictment on the grounds that the charges that you were charged with failed as a matter of law, you’ve been acquitted” in a practical sense, Matz said, explaining that dismissing the impeachment charges would constitute a definitive ruling.