On Thursday, Jan 18, the House Homeland Security Committee held a second hearing in its frantic rush to impeach Dept of Homeland Security Secretary Alejandro Mayorkas.

The hearing featured two Republican witnesses, both women who tragically lost a child to either fentanyl or a crime committed by an illegal migrant. Democrats once again called an expert on constitutional law, Prof. Deborah Pearlstein of Princeton.

Prof Pearlstein ably explained (as I tried to do in my own appearance before the committee last week) that impeachment is not a mechanism for expressing congressional disapproval of executive branch policy, and that the House has ample tools to change immigration law and policy — by passing laws in concert with the Senate.

Notably, the Republican majority has so far failed to call any scholar, judge, or other expert in constitutional law generally or in the law and history of impeachment particularly. At this point, it seems reasonably plain that they intend to proceed to a vote on impeachment without calling such a witness or even articulating a cogent theory of how Secy Mayorkas’s conduct is impeachable “treason, bribery, or other high crimes and misdemeanors.”

The reason for this omission is tolerably plain – they haven’t got a constitutionally supportable theory. And they can’t find any respectable scholar to provide them with one.

In default of testimony from someone who knows what he or she is talking about, several Republican members floated ominous sounding phrases to describe Secretary Mayorkas’s conduct and attempted to get Prof Pearlstein to agree that these phrases amounted to impeachable behavior.

Dereliction of Duty

Rep. Carlos Gimenez (R-FL) asked if “dereliction of duty” is impeachable. This question echoed the title and theme of one of the written “reports” prepared by the committee majority (“DHS Secretary Alejandro Mayorkas’ Dereliction of Duty“). The report’s definition of “dereliction of duty” is based on the military offense of dereliction of duty under Article 92 of the Uniform Code of Military Justice.  The problems with applying this provision of the UCMJ to an impeachment proceeding are obvious to anyone even modestly familiar with either the UCMJ or the constitutional doctrines governing impeachment.

First, Secretary Mayorkas is not a member of the military and the UCMJ is inapplicable to civilians.

Second, even if one considers the military offense of “dereliction of duty” only by analogy, it plainly is not not the kind of offense that the constitution’s text and historical usage would include as impeachable. Impeachable “high crimes and misdemeanors” are universally conceded to be “great offenses” of a type that corrupt or subvert governmental processes or the constitutional order. “Dereliction of duty” sounds sinister and portentous, but under the UCMJ it is a minor offense.

Except when committed in a war zone, the prescribed maximum penalties for dereliction of duty under the Manual for Courts Martial are: (a) if committed through neglect or culpable inefficiency, forfeiture of two-thirds pay per month and confinement for three months, or (b) if committed willfully, a bad-conduct discharge, forfeiture of pay and allowances, and confinement for six months. In short, in civilian criminal law terms, dereliction of duty is a misdemeanor, about as serious as a major driving infraction like a DUI.

Thus, dereliction of duty in the sense cited by the Republican majority in its own report is assuredly not a great offense of the impeachable kind.

More importantly, the essence of dereliction of duty and other offenses chargeable under Article 92 of the UCMJ is refusal or culpable failure to carry out the orders given by one’s superiors in the chain of command. Secretary Mayorkas’ superior is the lawfully elected President of the United States, Joseph R. Biden. There is no indication that the Secretary has failed or refused to carry out orders given by the President. To the contrary the essence of the complaints against the Secretary is that he has done exactly what the President wants him to do. That is neither dereliction of duty under the UCMJ nor an impeachable offense under the Constitution.

Violation of oath

Rep. Gimenez also asked Prof. Pearlstein if someone who “fails to uphold their oath to protect the homeland” has committed an impeachable offense. The obvious problem with this question is that neither Secretary Mayorkas nor any other federal official swears an oath to “protect the homeland.” The oath sworn by cabinet officers, and for that matter members of Congress, is a promise to “support and defend the Constitution.”

One does not violate that oath, the real oath, by pursuing immigration policies of which members of an opposing political party disapprove. Indeed, one can fairly argue that it is House Republicans who are violating their solemn oaths by hurtling toward an impeachment of Secretary Mayorkas in bald defiance of the text and universally accepted meaning of the Constitution’s impeachment provisions.