Why Senate Has a Solemn Obligation to Conduct a Mayorkas Impeachment Trial

Rumors abound that Senate Democrats want to avoid holding a trial on the impeachment of Department of Homeland Security Secretary Alejandro Mayorkas by “tabling” or otherwise dismissing the House impeachment articles. But doing so would be contrary to the Senate’s impeachment trial rules and its own historical practice.

The Senate has never refused to hold a trial when the impeached public official remained in office.

The House of Representatives impeached Mayorkas on Feb. 13 for “high crimes and misdemeanors.”

Critics try to trivialize this serious step by claiming that the conflict is simply a disagreement over immigration policy. That disagreement certainly exists, but the House impeached Mayorkas for “willful and systematic refusal to comply” with federal immigration law.

The first article of impeachment, in fact, lists seven different examples of such refusal. The second impeachment article, titled “Breach of Public Trust,” details how Mayorkas made “false statements” to Congress and “knowingly obstructed lawful oversight of the Department.”

Like these articles, and the specific violations of the law and interference with the separation of powers they present, an extensive special report published by The Heritage Foundation a week before the House impeachment outlined how Mayorkas’ actions fit within the historical understanding of “high crimes and misdemeanors” that warrant impeachment. And his pattern of ignoring both the law and misleading Congress has only gotten worse since then. (The Daily Signal is the news outlet of The Heritage Foundation.)

The place to debate whether Mayorkas’ actions constitute impeachable offenses was in the House, and the House made its decision. It is now the Senate’s responsibility under the Constitution to conduct an impeachment trial, a duty the Senate has never refused to fulfill.

Conducting a trial is necessary to carry out the impeachment process the Constitution established, as well as to protect the public trust and the national security of the country.

The Constitution gives the “sole Power of Impeachment” to the House of Representatives and the “sole Power to try all Impeachments” to the Senate.

While the responsibilities are divided, the process is not. The Constitution’s main impeachment clause states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

If the House impeaches, the Senate has the duty to fulfill its responsibility and complete the process.

Although words such as “trial” and “conviction” parallel the criminal justice process, impeachment is intended to be used to remove officers of the United States who are no longer fit to hold office because of their gross misbehavior and dereliction of duty. The Constitution, in fact, limits the consequences of conviction by the Senate to automatic removal from office and possible disqualification from holding future office, specifically providing that an official may yet—depending on the conduct involved—face criminal prosecution after they are removed from office.

Thankfully, the impeachment process has been used rarely in American history, but Congress has always administered that process in a consistent way.

Prior to Mayorkas, the House passed 21 impeachment resolutions covering 20 public officials: 14 federal judges, three presidents (Donald Trump twice), one Supreme Court justice, one Cabinet secretary, and one senator. The Senate failed to complete an impeachment trial in only four instances when, consistent with the removal purpose of impeachment, the officials in question had already left office. 

The first impeachment was of Sen. William Blount of Tennessee in 1797, despite some House members questioning whether a member of Congress qualified as a “civil officer” subject to impeachment. The Senate expelled Blount the day after the House impeached him and, therefore, did not proceed with a trial.

Since then, the clear consensus has been that the category of “civil officers” is limited to appointed officials in the judicial or executive branches.

In three other cases, impeached federal judges resigned either before or during their Senate trials, terminating those proceedings or making them unnecessary. In the other 17 cases, the Senate conducted and completed a comprehensive impeachment trial, resulting in eight convictions and nine acquittals.

The Senate adopted specific impeachment trial rules in 1986, and they clearly contemplate that the Senate will fulfill its responsibility, using the word “shall” more than 100 times.

Rule III, for example, states that when the House has presented its impeachment articles to the Senate, “the Senate shall … proceed to the consideration of such articles … until final judgment shall be rendered.” In contrast, the impeachment rules use the word “may” only in connection with how the Senate actually conducts a trial, not whether it does so at all.

The Constitution, Senate rules, and uniform historical practice all compel the conclusion that the Senate has a duty to fulfill its responsibility in the impeachment process.

It’s important that the American people witness their elected representatives, who each took an oath to support and defend the Constitution, take seriously a task as important as impeachment. That’s particularly true when the House has concluded that Mayorkas has instituted, presided over, and deliberately perpetuated the worst border crisis in American history, endangering national security, threatening the safety of the public, and imposing huge costs on state and local governments and communities.

Senate Majority Leader Chuck Schumer, D-N.Y., should be the first to insist that this duty comes before partisan politics. He and the other members of the Senate have a constitutional obligation to the American people to undertake a serious, substantive hearing on the misbehavior of Mayorkas.