By Frank Bowman

Late last night (Jan. 30, 2024), the Republicans controlling the Homeland Security Committee voted to approve two articles of impeachment against Secretary of Homeland Security Alejandro Mayorkas. This action is the culmination of a campaign by Republicans determined to score political points by demonizing Secretary Mayorkas as the face of Biden Administration immigration policy. However, there is neither factual evidence nor a plausible constitutional theory under which Secretary Mayorkas could credibly be charged with “treason, bribery, or other high crimes and misdemeanors.”

What Republicans have advanced, as I and Prof. Deborah Pearlstein testified before the House Homeland Security Committee, is nothing more than a set of policy complaints in faux constitutional dress. Our conclusion has gone unrebutted. The Republican Committee majority failed to call a single constitutional scholar, legal historian, lawyer, or judge to offer so much as a hint of how the Secretary’s conduct meets the constitutional standard for impeachment.

Nonetheless, they voted out two articles against Secretary Mayorkas. In this and subsequent posts, I will examine some particulars of the two articles.

ARTICLE ONE

Article One is a rehash of the longstanding Republican contention that the policy decisions of the Secretary to which they object are actually “a willful and systemic refusal to comply with the law.” I anticipated and rebutted this contention nine months ago in an article published in Just Security. Hence, I will defer dissection of the current iteration of this tired canard for a later post. Here I will consider Article Two, titled “Breach of the Public Trust.”

ARTICLE TWO

Article Two is a ragpickers bazaar of notionally related allegations. It contains three threads: (1) the claim that Secretary Mayorkas “knowingly made false statements” to Congress, (2) the contention that he “knowingly obstructed lawful oversight of the Department of Homeland Security,” and (3 a final spasm in which the Secretary is alleged to have willfully refused to fulfill his ‘‘duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens’’ pursuant to 8 U.S.C. Sec. 1103(a)(5) by terminating three Trump Administration programs.

None of these claims can survive even modest scrutiny.

“False statements”

Federal officials have been impeached for indictable criminal falsehoods. Notably, President Clinton and Judges Alcee Hastings and Walter Nixon were all impeached for committing perjury before either trial courts or grand juries. Moreover, as I wrote in Chapter 13 of the first edition of my book, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump, impeachment for lying to Congress would be constitutionally acceptable … but only in rare and narrowly defined circumstances.

First, the statement at issue must actually be a “lie,” that is, a false statement of fact, known by the speaker to be so. Mere statements of opinion cannot suffice. As Governor Edmund Randolph observed at the Virginia convention on ratifying the U.S. Constitution, “No man ever thought of impeaching a man
for an opinion.” Thus, the falsity of the statement must be demonstrable and cannot be a matter of reasonable debate.

Second, the alleged falsehood must be material, that is it must relate to a matter of national consequence and be of a type that, if believed, would actually mislead Congress.

The gaping flaw in the “false statements” charge against Secretary Mayorkas is that it alleges not single material statement of fact by the Secretary, still less a false one. There is no allegation that the Secretary or his Department has provided Congress false reports on its budget, its expenditures, the number and duties of its personnel, the number of migrants contacted at the US border or in its interior, the number of aliens detained, deported, or subjected to immediate removal, the number of aliens paroled into the country, the number of cases pending adjudication in the immigration court system, the quantities and types of drugs of other contraband seized, or indeed any other fact.

Instead, the Republicans claims of material falsehood by the Secretary all involve his choice of adjectives or adverbs to characterize the performance of the Department. He has, according to Article II, described the border as “secure,” “closed,” and ” ‘no less secure than it was previously.” The Article also alleges that he made false statements “regarding the scope and adequacy of the vetting of” Afghan refugees paroled into the U.S. after the Taliban takeover of their country. Likewise, it asserts that the Secretary falsely claimed that apprehended aliens with no legal basis to remain in the United States were being quickly removed.”

One can reasonably disagree with these characterizations as unduly optimistic or flattering to the competence of DHS and its leadership. But they are nothing more than expressions of opinion – universally agreed since the founding of the Republic to be an inadequate ground for impeachment. Moreover, when Republicans themselves attempt to discredit those opinions, they invariably rely on the accuracy of the facts about border operations and immigration parole reported by Secretary Mayorkas and his department.

Two other claims of falsehood in Article II merit quick mention. First, Republicans allege that the Secretary falsely claimed to be in ‘operational control’ of the border (as that term is defined in the Secure Fence Act of 2006).” As I explained in March 2023, the argument that the Secretary lied about “operational control”:

is based on a single contentious exchange between Secretary Mayorkas and Rep. Chip Roy (R-TX) during an April 28, 2022, hearing of the House Judiciary Committee [about] the text of the 2006 Secure Fence Act. The Act required that, within 18 months of its enactment, “the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.” The Act defines “operational control” as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” In short, the Act … required that the Secretary act immediately to achieve the impossible – complete prevention of “all” illegal crossings of the U.S. border by persons or contraband. Unsurprisingly, this miracle has not yet been achieved by any administration, Republican or Democrat.

Nonetheless, Roy asked Secretary Mayorkas whether “operational control” of the border had been achieved. The Secretary imprudently said yes. Whereupon, the congressman triumphantly confronted the Secretary with a poster containing the statutory definition of this unattainable state. The Secretary mildly responded that he thought his predecessor in the Trump administration would have given the same answer. No one was in the slightest bit deceived by this bit of theatrics. As the basis for impeachment, it is comical.

Since the Roy exchange, Secretary Mayorkas has said that when he refers to “operational control” of the border, he is using a common sense meaning of the phrase, and not the literally impossible one of the Secure Fence Act. This is hardly a “false statement,” still less an impeachable one.

Finally, Article II claims that Secretary Mayorkas misrepresented the facts of an incident in which Border Patrol agents on horseback were accused of “whipping” Haitian migrants. Whether he mischaracterized them at any point during the media kerfluffle over this affair is, at worst, debatable. But even if he did, the matter is the very essence of an immaterial dispute wholly inappropriate as a ground for impeachment.

The bottom line is that Republicans may think Secretary Mayorkas’s expressed opinions about the success of his department are unduly optimistic. But if placing a politically favorable interpretation on facts about government operations is an impeachable offense, every elected and appointed “civil officer” in Washington would be subject to immediate removal.

Obstruction of congressional oversight:

That members of Donald Trump’s Republican party now seek to impeach anyone for obstruction of congressional oversight would make a dog laugh. The obstruction allegation in the second Mayorkas article is a truly special exhibition of rank hypocrisy. When the story of Trump’s extortion of Ukraine broke in September 2019, the Trump White House flatly refused to provide a single document or witness to congressional committees investigating the matter. Trump refused to do so while the inquiry proceeded under oversight authority. He continued to refuse once the House formally authorized an impeachment investigation. During the entire Ukraine investigation, the Trump Administration produced exactly zero documents in response to House requests and subpoenas. And the only Administration officials who testified did so against the express directions of the White House.

Yet when Trump was impeached for abuse of power and obstruction of Congress, every Republican member of the House (and every member of the current House Homeland Security Committee then a member of Congress) voted against both articles.

In Mayorkas’s case, the Secretary himself has testified before Congress twenty-seven times, often to answer questions on border security. And as the Washington Post has reported, his department “provided 90 witnesses for committee hearings since the start of the Biden administration, along with over 13,000 pages of documents and data in response to [Homeland Security Committee Chair] Green’s requests.”

When the Homeland Security Committee subpoenaed Mayorkas to testify yet again as part of this “impeachment inquiry,” Mayorkas agreed to do so, requesting only that it be on a different date because the one proposed conflicted with preparations for meetings he had scheduled with Mexican officials to discuss border issues. Rather than accept that offer, the Committee charged ahead with an impeachment vote.

Two other nuances of the obstruction allegation in Article II merit brief mention.

First, note that Article II alleges that the Secretary “obstructed lawful oversight” of his department, not that he obstructed an impeachment inquiry. This framing embodies an implicit, but significant, concession about the formal basis for the actions of the Homeland Security Committee.

The parliamentary justification offered by Committee Republicans for pursuing impeachment was the full House’s vote on November 13, 2023, to refer an impeachment resolution by Marjorie Taylor Greene to the Homeland Security Committee. (See comments of Committee Chair Green during the hearing of Jan. 10, 2024.) Critically, and despite Republican arguments to the contrary, this vote does not appear to have been a vote of the whole House to authorize an impeachment inquiry. Rather, it was in substance if not in technical form a vote in the nature of a motion to table, with all Democrats and eight Republicans voting in favor and the rest of the Republican caucus voting against.

By framing the obstruction claim in Article II as an offense against oversight authority only, Republicans seem to be conceding that the House never formally authorized an impeachment inquiry that Secretary Mayorkas could obstruct.

This is important because, while obstruction of the congressional oversight function could, in theory, be impeachable, it is generally agreed that the power of congress to demand compliance with its informational requests is less in the oversight context than in an impeachment. Indeed, the added compulsory authority afforded Congress in an impeachment investigation was the primary justification Republican leadership proffered to members of their caucus reluctant to vote for last year’s House resolution authorizing a formal impeachment inquiry against President Biden. By contrast, in the oversight context, courts have found a greater obligation on the part of Congress and the executive to resolve disputes over production by negotiation before resorting to litigation.

Second, perhaps the most common argument by Republicans in both the House and Senate against the article of impeachment charging President Trump with obstruction of the impeachment inquiry into the Ukraine affair was that House Democrats had failed to seek redress from the courts before moving forward with impeachment. I do not believe that a court decision ordering production of congressionally requested testimony or materials is a necessary prerequisite for impeachment on obstruction grounds (because such a requirement would encourage the executive branch to adopt a conscious strategy of legal delay). But during the Trump affair, Republicans were absolutely insistent that impeachment for obstruction without prior resort to the courts was a violation of basic due process protections and an offense against the principle of separation of powers. Their dedication to these principles seems to have waned.

In sum, the Homeland Security Committee has voted to impeach Secretary Mayorkas for obstruction despite the fact that the Secretary has cooperated extensively with the Committee in the past and expressed a clear willingness to continue doing so. Moreover, to the extent Republicans are genuinely dissatisfied the Secretary’s cooperation, the Committee has voted for impeachment without first obtaining clear authority from the full House for an impeachment investigation, without engaging in the process mandated by courts of negotiating with the executive over production disputes in oversight matters, and without first seeking the assistance of the courts to compel production, a step Republicans deemed constitutionally essential in the case of Mr. Trump.

Refused to fulfill duty to guard U.S. borders against the illegal entry of aliens

The last section of Article II claims that the Secretary refused to fulfill his ‘‘duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens’’ pursuant to 8 U.S.C. Sec. 1103(a)(5) by terminating three Trump Administration programs: (1) the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” program; (2) some contracts for border wall construction; and (3) some “asylum cooperative agreements” (executive agreements between the U.S. and other countries on how asylum applications should be handled).

The most basic — and conclusive — point about this allegation is that it is not an impeachable offense for a president or a cabinet secretary acting in conformity with the orders of a president to change the policies of a previous president.

Nonetheless, we should not leave this last section of Article II without noting its most remarkable feature: The Article maintains that Secretary Mayorkas should be impeached because the Biden Administration terminated MPP. But in Biden v. Texas, the U.S. Supreme Court explicitly held that the Administration was legally entitled to do so. Nonetheless, the impeachment resolution never mentions this critical fact. Instead the Republicans have the effrontery to cite language from the Fifth Circuit opinion in the same case — the very opinion overruled by the Supreme Court — for the proposition that it was somehow improper for the Administration to terminate MPP. If Article II were a pleading submitted to a court, the lawyers who drafted it would be subject to sanctions for a gross and intentionally misleading mischaracterization of the law.

Indeed, that is a fair summary of the Republicans’ constitutional case for impeaching Secretary Mayorkas. It misrepresents facts. It misstates law. It ignores the text of the Constitution and the settled understandings of over two centuries on the proper scope of impeachment.

The sponsors of this travesty should be ashamed.