There is a real crisis along the southern border, and it has happened on Mr. Mayorkas’s watch: More than 2.3 million migrants have come across and have been released into the country, usually pending asylum applications, since Mr. Biden took office. Both the secretary and the president deserve to be held appropriately accountable for whatever has gone wrong.
But the two articles of impeachment against Mr. Mayorkas, which the Homeland Security Committee approved — on a party-line vote — early Wednesday, are about political scapegoating, not genuine accountability. One charges the secretary with “refusal to comply with the law”; another with “breach of public trust.” This vague, over-the-top document claims that the career public servant “will remain a threat to national security and border security, the safety of the American people, and to the Constitution if allowed to remain in office.”
To the extent it’s factual at all, the GOP case against Mr. Mayorkas is that he falsely told the House Judiciary Committee during a 2022 hearing that his department had “operational control” over the border. In subsequent testimony, Mr. Mayorkas noted that the Border Patrol defines operational control as “the ability to detect, respond and interdict border penetrations in areas deemed as high priority.” Republicans cite the 2006 Secure Fence Act, claiming, spuriously, that operational control requires zero illegal border crossings by contraband or people, an impossible standard.
University of Missouri law professor Frank Bowman testified to the Homeland Security Committee on Jan. 10 that the Founders saw impeachment as a “last resort” for penalizing “official misconduct, which is extraordinarily serious in degree and, critically, of a type that corrupts or subverts governmental processes of the constitutional order itself.” Hence the Constitution reserves impeachment for “treason, bribery, or other high crimes and misdemeanors.” The accusations against Mr. Mayorkas amount to a claim that he’s done a bad job, essentially the subjective charge of “maladministration” that James Madison expressly rejected as a basis for impeachment — because it would be inevitably partisan.
Conservative legal experts who understand all of this have spoken out against the Mayorkas impeachment. Michael Chertoff, homeland security secretary under President George W. Bush, opined that the committee’s lengthy investigation “failed to put forth evidence that meets the bar.” George Washington University law professor Jonathan Turley, who testified for Republicans against the impeachment of then-President Donald Trump in 2019, says “this is a slippery slope that we would be wise to avoid.”
The last and only time the House impeached a Cabinet secretary, it did so at least ostensibly based on evidence that he had accepted bribes. The case arose in 1876, and Secretary of War William Belknap actually resigned the day of that vote, so a vote by the full House in favor of the articles against Mr. Mayorkas would technically be the first impeachment of a sitting Cabinet official. The GOP-led House still has a chance to prevent it. In fact, since Republicans’ majority is two votes, it would take only three GOP defections to bring this spectacle to an end. Rep. Ken Buck (R-Colo.) announced Thursday that he will vote no. Others should follow his lead.
Alas, one reason they might not is that impeaching Mr. Mayorkas would give them a free shot at pleasing the GOP base with no real-world consequences attached — except, to be sure, setting a dangerous precedent. The Senate will likely never convict Mr. Mayorkas, because that would require all 49 Republicans and 18 Democrats to vote “guilty.” The Senate isn’t required to hold a trial but might even refer the impeachment to a committee or pass a motion to dismiss the charges.
Instead of this phony persecution of the secretary, Republicans should be spending their time on constructive efforts to reform the broken policies and bureaucracies — including an overwhelmed and outmoded asylum system — that have rendered the border so chaotic. In fact, the bipartisan border deal being finalized in the Senate looks as though it would give the GOP policy changes it has long sought. So far, however, Republican lawmakers seem reluctant even to bring such a bill to the House floor, because former president Donald Trump denounces compromise as a win for Mr. Biden. Mr. Trump’s stance, like the Mayorkas impeachment, shows that Republicans would rather have an immigration issue than immigration solutions.
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