By Frank Bowman

As readers of this blog will remember, I was called as a witness by the House Homeland Security Committee in the first impeachment hearing of Secretary of Homeland Security Alejandro Mayorkas on Jan. 10, 2024. During that hearing, several Republican members, to be frank, misquoted or misrepresented things I had written in the past, but did not actually ask me questions about the misquoted or misrepresented passages in order that I could correct their misunderstandings.

Moreover, the Republican majority actually had the temerity to rely on these very same misrepresentations of my work in the text of their report to the full house on the Mayorkas impeachment. See pp. 16 and 26 of the Report.

One of the ordinary practices of congressional committees following a hearing is to allow submission of supplemental questions to witnesses to permit witnesses to amplify on points thought critical by a member, or to clarify issues on which there may have been a misapprehension by a member of a witness’s testimony. These questions are submitted by members to the Committee’s clerk, who in turn is supposed to pass them along to the witness. Once the witness responds, the responses become part of the record of the hearing.

Ranking Member Bennie Thompson (D-MS) was good enough to submit to the clerk several supplemental questions allowing clarification of Republicans’ misapprehension of my prior work. It is a curious fact that, although those questions went to the clerk roughly two weeks ago, the clerk sent them to me only today, long after the Committee voted on articles of impeachment, after Committee Republicans wrote their Report containing misrepresentations of my work, and indeed after the full House voted on the Mayorkas articles (for the first, if perhaps not the last, time).

Whatever the reason for this delay may have been, I have now provided the clerk my responses. You can read the questions and my responses below:

QUESTION #1 from Mr. Thompson: Republicans have portrayed your previous academic writing as confirming their position that mere policy differences may be a ground for impeachment. In particular, that “displeasure with administration personnel and policy” may be sufficient to warrant impeachment. Is that correct?

I have never written that mere policy differences would be an adequate ground for impeachment. To the contrary, I join with the consensus view of constitutional scholars that ordinary policy differences are not a proper ground for impeachment. Indeed, this general principle is particularly applicable to a disagreement on policy between a presidential administration and a political party controlling only one house of Congress, and that by the very narrowest of margins.

The quotation to which the question alludes, one mentioned by Chairman Green and Rep. Bishop, occurs in the final paragraph of Chapter 4 of the second edition of my book, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge Univ. Press 2023). Both congressmen take the snippet of text they quote entirely out of context.

In the referenced section of Chapter 4, I discuss the only prior impeachment of a U.S. cabinet officer, President Ulysses Grant’s Secretary of War, William Belknap. Prior to the quoted passage, I explained why no cabinet officer before or after Belknap has been impeached. The primary, and obvious, reason is that, as I wrote, any cabinet officer “whose behavior veered anywhere near an impeachable zone” was simply removed by the President.[1] Which is what happened to Belknap. He took a bribe. When President Grant found out, he fired Belknap. But the House, controlled by Democrats for the first time since the Civil War, impeached the Secretary anyway as a means of politically damaging President Grant and by extension the Republicans in the upcoming 1876 election.

In the final paragraph of Chapter 4, I was, of course, not saying that mere “displeasure” with either a person or a policy is a constitutionally acceptable ground for impeachment. Rather, when a subordinate official has actually committed “treason, bribery, or other high crimes and misdemeanors” (as Secretary of War Belknap incontestably did), Congress might elect to proceed with impeachment to signal its displeasure.

Secretary Mayorkas has not committed any impeachable offense. Impeaching a cabinet officer innocent of “treason, bribery, or other high crimes and misdemeanors” to indicate displeasure with administration policy or the officer’s administration of that policy would be a profoundly anti-constitutional act.

QUESTION #2 from Mr. Thompson: In the past, you have written that impeachable “high crimes and misdemeanors” can be interpreted to include “serious executive misconduct, including…betrayal of the nation’s foreign policy interests” such as when a president subordinates the nation’s interests to foreign interests. Republican Rep. Guest suggested that you have written in the past about foreign policy differences as grounds for the first impeachment of President Trump—what you describe as Trump’s “rolling destruction of American foreign policy”—and that your past writing contradicts your testimony at the January 10, 2024, hearing. Are foreign policy differences an impeachable offense, and how do foreign policy differences differ from ordinary policy differences?

I have written that one of the accepted historical categories of impeachable conduct, in both the pre-1787 United Kingdom and in the United States, has been “betrayal of the nation’s foreign policy interests.”[2] However, in saying this, I was obviously not saying that ordinary policy differences between a presidential administration and the opposing political party become impeachable simply because the subject matter of the disagreement is foreign, rather than domestic, policy.

To the contrary, long precedent establishes that, in the U.S. impeachment context, “betrayal of the nation’s foreign policy interests” has had certain identifying features.

First, for impeachment purposes, a nation’s “foreign policy interests” are not merely the transient preferences of a political party or faction. Rather, they are enduring interests about which there is a broad societal consensus, ideally one embodied in statutes, treaties, the practice of multiple presidential administrations, and (where applicable) the views of a nation’s diplomats, foreign policy experts or professionals.

Second, the word “betrayal” implies, not merely changing policy or adopting policy views contrary to one’s political adversaries, but subverting the national interest for illegitimate, often personal, motives.

British impeachments that illustrate these features include the following.

In 1667, after an expensive and unnecessary war with the Dutch, the Earl of Clarendon was impeached in part for seeking payments from France to the British crown to evade parliamentary controls on royal finance.

In 1678, the Earl of Danby was impeached for soliciting—on behalf of the English King Charles II—a bribe from Louis XIV of France in return for English neutrality in the Franco-Dutch War.

Both Clarendon and Danby’s solicitations not only undercut longstanding British foreign policy objectives and subjected the British monarch to undue foreign influence, but were a bald attempt to avoid a significant parliamentary constraint on royal overreach – the requirement that the Crown obtain “supplies” (i.e., funding in addition to the monarch’s private wealth) through the legislature.

More relevant to the present case are the American impeachments of Senator William Blount in 1797-98 and of President Donald Trump in 2020.

Sen. William Blount: Blount, then a U.S. senator, concocted a scheme to enrich himself by giving Great Britain control of the territories of Louisiana and Florida. Blount’s scheme was obviously contrary to contemporary U.S. foreign policy interests inasmuch as the American government and populace wanted to expand into Louisiana and Florida, or at the very least to prevent Great Britain from assuming control over those territories. In addition, the articles of impeachment against Blount charged him with violations of the Neutrality Act of 1794, and also with violation of the Treaty of Friendship, Limits, and Navigation between the United States and Spain (because his scheme involved stirring up Native American tribes to attack Spanish officials and interests).

Not only was Blount’s scheme undeniably contrary to U.S. foreign policy interests, and to multiple treaty obligations,[3] but it was a “betrayal” in the most obvious sense. Blount tried to sell out the interests of his country for personal financial gain.

Although Blount was acquitted by the Senate, the historical consensus is that the verdict turned on the decision that senators are not “civil officers” subject to the impeachment remedy under Article II, Section 4 of the Constitution.[4]

President Donald Trump:

President Trump’s first impeachment involved two articles, the first charging that Trump committed “high crimes and misdemeanors” in relation to his scheme to coerce the government of Ukraine into announcing investigations into Trump’s likely presidential opponent, Joe Biden, and the second charging obstruction of Congress. The first article was captioned “Abuse of Power,” but as I have written, it “braided together three themes … corruption, damage to foreign policy interests, and injury to the democratic process.”[5] As the first article of impeachment summarized the matter:

President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.[6]

The “national security and other vital national interests” alluded to in the article were the interest of the United States in supporting, militarily and diplomatically, a country threatened, and indeed physically invaded, by Russia, a longstanding geopolitical opponent of the United States, together with the interest of the United States in preventing Russian territorial expansion up to the borders of the countries of the NATO alliance.

These objectives had been endorsed as national security interests of the United States over multiple presidential administrations through repeated bipartisan approval of legislation authorizing military and security aid to Ukraine.[7] They were also endorsed by the entire diplomatic and national security apparatus of the U.S government before and during the Trump Administration itself.[8] For example, when Trump’s White House Office of Management and Budget (OMB) placed a hold on congressionally mandated aid to Ukraine in the July 2019 as part of President Trump’s scheme to coerce Ukraine, every relevant agency of Trump’s own administration except OMB questioned the hold and supported military assistance to Ukraine as being in the national security interest of the United States.[9]

Thus, Trump’s first impeachment precisely matches the template for “betrayal of the nation’s foreign policy interests” described above.

First, the foreign policy interests of the United States in that case were enduring interests embraced by multiple presidential administrations, endorsed by the foreign policy professionals of the executive branch, and manifested in bipartisan legislation enacted by multiple U.S. congresses.

Second, and critically, the “betrayal” of U.S. interests consisted of subverting the national interest for illegitimate personal motives – securing a personal political advantage over a potential political rival. In Trump’s case, the betrayal was doubly severe because it amounted to an effort to use presidential power to corrupt the democratic electoral process.

Secretary Mayorkas: Nothing alleged against Secretary Mayorkas meets the traditional criteria for impeachment based on “betrayal of the nation’s foreign policy interests.” The most that can be said against him is that he has executed the policy preferences of President Joe Biden in relation to immigration and border control issues and that the political party in control of the House of Representatives disapproves of those policy preferences.[10] There is no indication that the Secretary’s actions, or indeed the Biden Administration’s policy choices, are contrary to established national foreign policy interests. To the contrary, U.S. policy regarding immigration and border control has varied from administration to administration and congress to congress as the challenges, needs, and preferences of the country have varied. More importantly, there is absolutely no indication that Secretary Mayorkas has taken any official action for corrupt or illegitimate personal motives.

To repeat the central point, ordinary policy differences between a presidential administration and the opposing political party do not become impeachable simply because the subject matter of the disagreement is foreign, rather than domestic, policy.

Question #3 from Mr. Thompson: Rep. Crane suggested that Secretary Mayorkas has betrayed the Nation, and that betrayal of the nation would be sufficient to warrant impeachment. Are you aware of any evidence that Secretary Mayorkas has betrayed the United States? And Rep. Crane further suggested that you said “betrayal of the Nation” is a potential ground for impeachment, whereas you actually said “betrayal of the nation’s foreign policy interests” is a ground for impeachment. What precisely did you mean?

I did not say in my testimony to the Committee or elsewhere that that “betrayal of the nation” is a ground for impeachment. I have agreed with Charles Black that one decent definition of “high crimes and misdemeanors” that covers most cases is offenses “which are extremely serious, which in some way corrupt or subvert the political and governmental process, and which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.” Nothing alleged against Secretary Mayorkas meets this general definition of impeachable conduct.

I have also written that one specific category of impeachable “high crimes and misdemeanors” is “betrayal of the nation’s foreign policy interests.” In my previous answer, I explain what is meant by that phrase for purposes of impeachment and I demonstrate why Secretary Mayorkas’ conduct does not fall within it.

Finally, I am aware of no evidence that Secretary Mayorkas has betrayed the nation. To the contrary, based on the facts of which I am aware, Secretary Mayorkas appears to be a capable, dedicated public servant trying as best he can to carry out the policy priorities of the President of the United States and to manage the perennial and intractable problems related to immigration

[1] Frank O. Bowman, III, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (2d ed.) 120 (Cambridge Univ. Press 2023).

[2] Bowman, High Crimes & Misdemeanors, supra note 1, at 39, 102; Frank O. Bowman, III, The Constitutional Case for Impeaching Donald Trump (Again), Just Security (Jan. 9, 2021).

[3] As I have written elsewhere:

Blount’s scheme violated national foreign policy objectives shared by the executive and legislative branches. President Adams, and Washington before him, favored U.S. neutrality in the ongoing European wars.  Before Adams’ election, Congress had passed legislation mandating neutrality and specifically barring the sort of buccaneering adventure against foreign states Blount was planning. The friendship treaty with Spain, negotiated by the executive and ratified by the Senate, imposed an obligation on both nations not to stir up hostility against each other among the Indian nations.  Similarly, U.S. policy toward the Indian nations, embodied in legislation, was to maintain peaceful relations and to avoid friction by dealing with them only through governmentally authorized agents. Finally, unstated in any treaty or statute, but widely understood, was a general desire to weaken the hold of European powers on lands bordering the United States, particularly land around the vital Mississippi waterway, leaving those territories available for American expansion and annexation. *** Blount’s adventure ran afoul of all these objectives.

Bowman, High Crimes & Misdemeanors, supra note 1, at 117-18.

[4] Id. at 115-16.

[5] Id. at 331.

[6] House Resolution 755, 116^th Cong. (Dec. 18, 2019).

[7] Bowman, High Crimes & Misdemeanors, supra note 1, at 313.

[8] Id.

[9] Report of the House Permanent Select Committee on Intelligence, Pursuant to H.Res. 660 in Consultation with the House Committee on Oversight and Reform and the House Committee on Foreign Affairs (Dec. 2019), at 72-74.

[10] Republican Members of this Committee have contended that Secretary Mayorkas is not merely executing Biden Administration policy preferences but “violating the law.” However, as I have demonstrated elsewhere, that is not the case. See Frank O. Bowman, III, Republicans Are Calling to Impeach Homeland Security Secretary Alejandro Mayorkas, Here’s Why Their Case is Bunk, Just Security (March 13, 2023), https://www.justsecurity.org/85427/republicans-are-calling-to-impeach-homeland-security-secretary-alejandro-mayorkas-heres-why-their-case-is-bunk/. The most that can be said is that there has been litigation challenging some decisions by Secretary Mayorkas, none of which has to date resulted in a final decision contrary to the Secretary. Moreover, as I indicated in my written testimony to the Committee, “As a constitutional matter, the existence of active litigation challenging discretionary actions by a cabinet secretary (or indeed by a president) is no ground for impeachment.” Bowman, Written Statement to House Committee on Homeland Security (Jan. 10, 2024), at 9.