The impeachment of Homeland Security Secretary Alejandro Mayorkas is set to move to the U.S. Senate next month for the trial phase when members of the chamber will decide whether to acquit or remove the Biden government official. This week, House Speaker Mike Johnson (R-LA) announced he would transmit the articles of impeachment to the upper legislative chamber on April 10, setting the stage for Mayorkas’s trial to begin when the Senate returns from its Easter break. In response, Senate Majority Leader Chuck Schumer (D-NY) said Senators will be sworn in and the trial will begin on April 11.
HOW SENATE TRIALS WORK.
Senate Democrats, who control the chamber’s majority, are unlikely to break rank and provide the votes to reach the two-thirds threshold needed to convict and remove President Joe Biden’s Homeland Security Secretary. They may, however, be unable to dismiss the charges outright. If Sen. Schumer is unable to dispense with the charges against Mayorkas quickly, he will likely use his discretionary powers to avoid holding a full trial, which could drag out for weeks.
Under Rule XI, for example, the House impeachment managers — who act as prosecutors — would present their case to an appointed committee of Senators from both parties rather than the full Senate itself. After concluding their investigation of the evidence and charges, the committee members would produce a transcript of their hearings and make a recommendation to the full Senate.
This trial-by-committee process has only been used four times since its inception in 1934. Once in 1986 for the impeachment of U.S. District Court Judge Harry E. Claiborne; twice in 1989 for judges Alcee Hastings and Walter Nixon, Jr.; and in 2010 for U.S. District Court Judge G. Thomas Porteous, Jr. All four impeachment trials resulted in removal from office.
Whether the Senate chooses to hold a full trial or use a Rule XI committee is unlikely to have much impact on the final outcome of the Mayorkas impeachment. Sen. Schumer has made it clear he believes the House articles of impeachment are a “sham” and argued on Thursday that “House Republicans failed to present any evidence of anything resembling an impeachable offense.”
FOREGONE CONCLUSION?
Schumer’s efforts to expedite the Senate trial are likely to be aided by some Senate Republicans who view the impeachment as a futile distraction. “It’ll be dead on arrival when it comes over,” Sen. James Lankford said after the House voted to impeach Mayorkas in February. He added that regardless of whether Mayorkas is removed from office, the Biden government’s lack of border enforcement would remain unchanged. Sen. Kevin Cramer (R-ND) called the articles the “dumbest exercise and use of time.”
Sens. Ted Cruz (R-TX) and Mike Lee (R-UT), on the other hand, have been meeting with the Senate Parliamentarian, Elizabeth MacDonough, to head off any attempt by Senate Democrats to merely hold a majority vote to dismiss the charges against Mayorkas. In late February, the two conservative Republicans urged outgoing Senate Minority Leader Mitch McConnell (R-KY) to clarify the Republican leadership position and ensure a full trial is held. Several days later, the Republican leader backed holding a full trial, telling the press it “would be the best way to go forward.”
Even if McConnell and Republican Senate leadership whip members against a vote to dismiss the charges, it is unlikely they could prevent the Senate Democrats from holding an expedited trial by establishing a Rule XI committee. And with conviction and removal requiring an affirmative vote of two-thirds of the Senate, it is even more unlikely that the divided Senate Republicans can mount an effort to push their Democrat colleagues into a vote to oust Secretary Mayorkas.
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