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Updated Jan 18, 2024, 6:21am EST
politicsNorth America

Why a Mayorkas impeachment would be low on drama

REUTERS/Kevin Lamarque
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The News

House Republicans are moving ahead on their effort to impeach Homeland Security Secretary Alejandro Mayorkas over his handling of the border, with a second and final hearing set for later today. The push is widely seen as a high-profile chance for GOP members to highlight an issue that animates their base and is taking a toll on President Biden’s approval.

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Kadia’s view

But don’t expect too much drama once the case moves on to the Senate, as it’s eventually expected to. Democrats, who control the chamber, are unlikely to convict a Biden Cabinet member, and the trial itself won’t be set up to hog Washington’s attention like a presidential impeachment.

During a presidential impeachment trial, the entire Senate gathers to hear evidence presented by the House impeachment managers, who act as prosecutors, as well as the defense. That spotlight has provided star-making turns for politicians like Rep. Adam Schiff, D-Calif., who served as the lead House manager in Donald Trump’s first impeachment, and is currently the frontrunner in his state’s U.S. Senate race.

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A case against a lesser official like Mayorkas would involve a different rhythm and ritual. Instead of hearings before the entire chamber, Senate leaders would likely appoint a trial committee to examine evidence and hear testimony in public hearings, allowing the rest of the chamber to carry on business as usual. Traditionally, that group has consisted of six lawmakers from each party who eventually present a final report to the full Senate.

The Senate first adopted that approach as an efficiency measure in the 1986 impeachment trial of U.S. District Court Judge Harry E. Claiborne. A colorful figure from Nevada, Claiborne was sentenced to two years in prison for falsifying his income tax returns, but planned to return to the bench after his incarceration ended because, well, federal judges can only be removed by impeachment. Lawmakers ultimately convicted and removed Claiborne before he could make his grand comeback. (Notably, a youngish Sen. Mitch McConnell, R-Ky. served on the Senate trial committee).

The Senate has used the same committee process for the three other non-presidential impeachments since Claiborne’s, all of which also involved federal judges. During the trial of U.S. District Court Judge Alcee Hastings, the committee wrapped up this portion of the trial in just under a month.

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Once the committee submits its findings, prosecutors and defense attorneys do get a chance to summarize their cases before the entire Senate body. After senators hear closing arguments, they’ll deliberate in a closed-door session, where each Senator will have a limited amount of time to speak. In a non-presidential impeachment, the president pro-tempore — currently Sen. Patty Murray, D-Wash. — presides over the Senate rather than the chief justice of the U.S. Supreme Court.

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The Senate sets the exact rules and timing for each impeachment trial via a majority vote. That will likely leave power to shape the proceedings in the hands of Senate Majority Leader Chuck Schumer and the Democrats, who could find a few ways to put a lid on the trial.

Schumer could just move to dismiss the case outright “before any argument is heard at all,” Frank Bowman, a law professor at the University of Missouri and an expert on the impeachment process, told Semafor. Or, he said, Democrats could also skip the normal committee hearings entirely and put the impeachment up for a vote after just a few hours of debate. (A dismissal without any trial could set an unwelcome precedent, however, since Republicans might borrow the move down the road.)

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Democrats could also choose to take up the trial after the 2024 election, putting off the political headache. There’d be precedent: The Democratic-led Senate waited until after the 1988 presidential election to start the trial proceedings against Judge Hastings, who was also a Democrat.

There’s also the possibility that Mayorkas could choose to leave his post, possibly triggering a prompt Senate dismissal. Something similar occurred in 2009 when the Senate dismissed the impeachment trial of U.S. District Court Judge Samuel Kent at the request of the House when the jurist resigned. It’s unclear, however, if House Republicans would make a similar request should Mayorkas go.

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