Below is my column in the Daily Beast on the impeachment proceedings of Secretary of Homeland Security Alejandro Mayorkas. Despite my long-criticism of Mayorkas, I do not believe that the current evidence against him would rise to the level of an impeachable offense. The hearings this week may reveal conduct that reaches the level of a high crime and misdemeanor. However, that evidence needs to be clear and not simply the equivalent to “vote of no confidence” in a controversial cabinet member.
Here is the column:
Secretary of Homeland Security Alejandro Mayorkas has been denounced as dishonest, duplicitous, and derelict by his critics. In my view, all of those things are manifestly true. It is also true, in my opinion, that none of those things amount to high crimes and misdemeanors warranting his impeachment.
The Republican push to impeach Mayorkas has been gaining steam as record numbers of undocumented migrants pour over our Southern border. Even many Democrats are now alarmed by the numbers and the threat that they pose to our national security and to our economy. Sanctuary cities from Chicago to New York are actively trying to prevent new migrants from seeking sanctuary within their own borders.
At the center of all of this is Mayorkas, who has long been viewed as an enabling figure for illegal migrations. He is also accused of implementing Biden policy changes that removed barriers to migrants, including rescinding the “Stay in Mexico” rule.
Some of us have also questioned his integrity, particularly in controversies like the false claims that border agents whipped migrants in Texas.
Mayorkas knew the allegations against his own personnel were debunked, but showed little concern or compassion for agents, particularly after President Joe Biden promised they would be punished before any investigation had even begun.
However, being a bad person is not impeachable—or many cabinets would be largely empty.
Moreover, being bad at your job is not an impeachable offense. Even really bad. Even Mayorkas bad. If that were the case, he would be only the latest in a long line of cabinet officers frog-marched into Congress for constitutional termination.
In history, there has only been one cabinet member impeached. That was Secretary of War William Belknap in 1876. That alone should concentrate the mind of members. Despite decades of controversial cabinet members accused of flaunting the law or abusing their positions, Congress has only crossed this Rubicon once. There has existed a certain detente between the parties; an understanding that policy-based impeachments could open up endless tit-for-tat impeachment politics.
The charges against Belknap were serious, in that he had allegedly “disregarded his duty as Secretary of War, and basely prostituted his high office to his lust for private gain.” The alleged bribes in contracts in the Indian territories would have constituted impeachable offenses, but Belknap had already left office. His case raised the question of retroactive impeachments for former federal officers.
The jurisdictional concerns made the difference for Belknap. The final vote on the closest article was 37 to 25 in favor of impeachment—four votes short of the number needed for conviction.
There is no jurisdictional question for Mayorkas, but there is also no current evidence that he is corrupt or committed an impeachable offense. He can be legitimately accused of effectuating an open border policy, but that is a disagreement on policy that is traced to the President.
In fairness to the GOP, they allege that Mayorkas is violating federal law in releasing what he now reportedly admits is over 85 percent of illegal migrants into the country as well as alleged false statements to Congress. Such releases, however, occurred in prior administrations and the merits of these claims are still being argued in court.
The courts have long recognized that presidents are allowed to establish priorities in the enforcement of federal laws, even when those priorities tend to lower enforcement for certain groups or areas. It is a matter of discretion.
Indeed, even under the Federal Tort Claims Act (FTCA) which holds the government liable for civil damages, there is a discretionary function exception codified under 28 U.S.C. § 2680(a) for policy-based judgments.
Immigration has long been an area of intense policy disagreements. Trump policies were denounced by critics as draconian or even racist. Biden’s policies have been denounced as fueling illegal crossings and frustrating efforts to curtail the flow, particularly by border states.
In my view, Biden has been dead wrong on immigration, but voters will soon have an opportunity to render a judgment on those policies in the election. Mayorkas has carried out those policies. What has not been shown is conduct by the secretary that could be viewed as criminal or impeachable.
If Mayorkas is violating federal law, he can be brought to court to enjoin his actions. A prior case seeking to prevent the termination of the “Stay in Mexico” policy resulted in a win for the Biden administration in Biden v. Texas, when the Supreme Court ruled the president had the authority to revoke the Migrant Protection Protocols.
During the Constitutional Convention, there was a debate over the grounds for impeachment with George Mason arguing for a broad scope of offenses that could “subvert the Constitution.” His view was rejected. Most notably, there was a rejection of “maladministration” as a basis for impeachment.
An English trial of Warren Hastings weighed heavily on the forging of the impeachment standard. The former governor of India was charged with various offenses including “mismanagement and misgovernment… and mistreatment of various provinces.” While figures like Mason saw the need for the adoption of a similarly broad definition, his suggestion of maladministration was rejected as too broad.
What Mayorkas is guilty of is maladministration. He has failed to secure the Southern border and has long denied the gravity of this crisis, including refusing to call it a crisis even as daily and monthly crossings reached unprecedented levels.
None of this means that a cabinet member cannot be impeached. However, not like this. Not for maladministration.
I hold no brief for Alejandro Mayorkas. However, I hold the Constitution more dearly than I despise his tenure. Absent some new evidence, I cannot see the limiting principle that would allow the House to impeach Mayorkas without potentially making any policy disagreement with a cabinet member a high crime and misdemeanor. That is a slippery slope that we would be wise to avoid. Indeed, it is precisely the temptation that the Framers thought they had avoided by rejecting standards like maladministration.
That is why the case has not been made to impeach Alejandro Mayorkas.
Jonathan Turley is the Shapiro Chair of Public Interest Law at George Washington University and previously testified in impeachment hearings of Bill Clinton, Donald Trump, and Joe Biden.
The Republicans won’t impeach anyone. Almost all of them ( a few exceptions), are bought and paid for.
They won’t do anything if it isn’t kosher with their overlords.
How about the direct lies he made in
House hearings??
The old AND LONG REGJECTED “just following orders” defense doesn’t cut it. Yes, Mayorkas should be impeached and dismissed from office but so should Biden and most of his administration.
What about the facilitation of known human trafficking, the failure to prevent the rapes of vulnerable women and children, and the aiding and abetting of criminal cartels to facilitate their goals of importing deadly drugs, child sex slaves, and prostitution throughout America? Show me where any significant efforts have been made to stop these things? Yes, Mayorkas should be impeached.
Turley’s ‘red line’ is calling for accountability of a Democrat cabinet member. Repeatedly lying about the security of the Southern border is impeachable. Mayorkas must face justice or else vigilante justice will emerge. It takes men like you to do everything possible to avoid what will certainly happen if the American people don’t trust the government. It is inevitable. The Democratic Party has abandoned the Constitution, obviously. Turley, you’re a weak, weak man.
Dear Prof. Turley.. the comment left within the hour at 3:25 am (1/11/23 to-day) that begins ‘Dear Prof. Turley..’ was NOT ;left by ‘Anonymous’ but by yours truly, ‘eighteenththole…’ How did this happen? Many Thanks for fixing.
Dear Prof. Turley.. sometimes you throw us a curve ball: “..Mayorkas has been denounced as dishonest, duplicitous, and derelict by his critics. In my view, all of those things are manifestly true. It is also true, in my opinion, that none of those things amount to high crimes and misdemeanors warranting his impeachment.” Who said he should be impeached based on these disgusting character attributes, which includes lying about his own agents to the US people in that fake ‘whipping’ hoax story… ? He needs to be impeached because: 1.) He is breaking the US Immigration Laws. 2.) He is leaving the US HOMELAND SECURITY (which is in his Title..) utterly & completely in disarray by his out of control handling of the US Borders, having no clue WHO is entering our country, etc., etc., etc. 3.) He is causing major ‘disruptions’ (Bill Clinton’s word) to the SECURITY of the US social fabric with wide open borders, dumping unsafe amounts of aliens who have no place to go into the USA… (9-11 was caused by such unknown aliens…) AND SO FORTH………………………………………………………………
Ol’ Mayorkas is Sinon alright but the real culprit is that senile Priam who thinks this Trojan Horse is a gift for his Business Round Table palm greasers. It’s invasion pure and simple and in more sane times the culprits would meet the same fate as the brethren of Aeneas, but alas that might be us:
The Grecians had embark’d their naval pow’rs
From Tenedos, and sought our well-known shores,
Safe under covert of the silent night,
And guided by th’ imperial galley’s light;
When Sinon, favor’d by the partial gods,
Unlock’d the horse, and op’d his dark abodes;
Restor’d to vital air our hidden foes,
Who joyful from their long confinement rose.
Tysander bold, and Sthenelus their guide,
And dire Ulysses down the cable slide:
Then Thoas, Athamas, and Pyrrhus haste;
Nor was the Podalirian hero last,
Nor injur’d Menelaus, nor the fam’d
Epeus, who the fatal engine fram’d.
A nameless crowd succeed; their forces join
T’ invade the town, oppress’d with sleep and wine.
Those few they find awake first meet their fate;
Then to their fellows they unbar the gate.
“‘T was in the dead of night, when sleep repairs
Our bodies worn with toils, our minds with cares,
When Hector’s ghost before my sight appears:
A bloody shroud he seem’d, and bath’d in tears;
Such as he was, when, by Pelides slain,
Thessalian coursers dragg’d him o’er the plain.
Swoln were his feet, as when the thongs were thrust
Thro’ the bor’d holes; his body black with dust;
Unlike that Hector who return’d from toils
Of war, triumphant, in Aeacian spoils,
Or him who made the fainting Greeks retire,
And launch’d against their navy Phrygian fire.
His hair and beard stood stiffen’d with his gore;
And all the wounds he for his country bore
Now stream’d afresh, and with new purple ran.
I wept to see the visionary man,
And, while my trance continued, thus began:
‘O light of Trojans, and support of Troy,
Thy father’s champion, and thy country’s joy!
O, long expected by thy friends! from whence
Art thou so late return’d for our defense?
Do we behold thee, wearied as we are
With length of labors, and with toils of war?
After so many fun’rals of thy own
Art thou restor’d to thy declining town?
But say, what wounds are these? What new disgrace
Deforms the manly features of thy face?’
“To this the specter no reply did frame,
But answer’d to the cause for which he came,
And, groaning from the bottom of his breast,
This warning in these mournful words express’d:
‘O goddess-born! escape, by timely flight,
The flames and horrors of this fatal night.
The foes already have possess’d the wall;
Troy nods from high, and totters to her fall.
Enough is paid to Priam’s royal name,
More than enough to duty and to fame.
If by a mortal hand my father’s throne
Could be defended, ‘t was by mine alone.
Now Troy to thee commends her future state,
And gives her gods companions of thy fate:
From their assistance walls expect,
Which, wand’ring long, at last thou shalt erect.’
He said, and brought me, from their blest abodes,
The venerable statues of the gods,
With ancient Vesta from the sacred choir,
The wreaths and relics of th’ immortal fire.
“Now peals of shouts come thund’ring from afar,
Cries, threats, and loud laments, and mingled war:
The noise approaches, tho’ our palace stood
Aloof from streets, encompass’d with a wood.
Louder, and yet more loud, I hear th’ alarms
Of human cries distinct, and clashing arms.
Fear broke my slumbers; I no longer stay,
But mount the terrace, thence the town survey,
And hearken what the frightful sounds convey.
Thus, when a flood of fire by wind is borne,
Crackling it rolls, and mows the standing corn;
Or deluges, descending on the plains,
Sweep o’er the yellow year, destroy the pains
Of lab’ring oxen and the peasant’s gains;
Unroot the forest oaks, and bear away
Flocks, folds, and trees, and undistinguish’d prey:
The shepherd climbs the cliff, and sees from far
The wasteful ravage of the wat’ry war.
Then Hector’s faith was manifestly clear’d, ….
~Virgil, The Aeneid, Bk II
“~Virgil, The Aeneid, Bk II”
Thanks for posting that. It’s style alone is uplifting.
The premise of the opinion piece is that Mayorkas is incompetent. I disagree. What we are seeing with the open border is not the result of incompetence but of design. That design is what Mayorkas is constantly covering up or deflecting by not answering direct questions. He is very good at what he is doing. And what he is doing appears to be is in line with White House expectations or direction. What is needed is for Congress to show that he is knowingly violating current federal law.
Even if the House impeaches Mayorkas, the Senate will not vote to convict.
Well beyond Mayorkas we are dealing with BOTH incompetence and design.
The core problem of this administration – whether in foreign policy, the border, the economy, energy policy, ….
If that their ideology, their principles, their values DO NOT WORK.
The Biden administration – beyond Mayorkas Chose to open the floodgates at the border. They chose to encourage mass illegal immigration.
They expected that outside of some fringe MAGA supporters that those choices would produce significant net positive results.
They have not. While I think it was possible for intelligent people to grasp the consequences of the decisions regarding the border that Democrats have made, the chaotic mess we have is NOT what was intended.
It does nto matter if the Senate convicts – though it will be interesting to see if any democrats join either in the house or the senate.
I am not honestly sure that Mayorkas will not resign or be asked to resign before impeachment or before a Senate Trial.
Even impeached he will never be convicted in this Senate but hearings and depositions might discover more of what is going on.
One thing the House can do is strangle a fee agencies for funds until immigration laws are truly enforced. There are several departments that we are better off without, the Department of Education for example.
Use the power you have rather than the power you would like to have.
Young, the truth is that all departments concerned with the border are already well-short of funds. That’s basically the whole problem. And you’re saying the remedy is even LESS funding. Like more cigarettes for a lung cancer patient.
You’re nuts. I just watched James O’Keefe with his sting piece trace the buses of illegals to the tent cities and airports.
They’ve been flying hundreds of thousands to their choice of destination in the middle of the night under secret cover. Those flights are certainly very expensive.
So what you really mean is if you demoncrats can’t get 50 million more illegal voters lined up soon, “the money is short”.
What complete and total idiocy.
NO part of the federal government is short of funds.
Intelligent people know this. But even less intelligent people grasped this during Trump’s presidency – While Not perfect, border security was several orders of magnitude better on less funds.
Frankly the Federal government could EASILY do the most critical jobs that it is required to do on about 1/4 its current funding.
Lincoln fought the Civil war with government spending – federal, state and local peaking at 8% of GDP.
One of the problems at the border is that it is FAR more expensive to let people in than to stop them.
This is true even if we discount the costs in terms of entitlements.
There are now between 5 and 8m new illegal immigrants in the US. DHS, ICE spend massive amounts of money just keeping track of them, scheduling court dates, transporting them to some destination.
Using YOUR analogy – what YOU wish to do is provide MORE cigarettes to people with lung cancer in the hopes of curing them.
Regardless, in the real world – that anyone with a brain can observe over their lifetime or through history.
More spending – especially more govenrment spending tends to make things WORSE not better.
Money is grease. It lubricates, it reduces friction. Your car engine needs 4qt of oil to run properly. It will work WORSE with 200qt of oil.
From the 60’s atleast we were told we needed to spend more money on education. We now spend 4 times as much after adjusting for inflation, and the quality of education has declined. That has occured at ALL levels. At pre-school, primary school, secondary school, and college. Spending more money has made things WORSE not better – and yet we see demands for even more money.
We have done the same with healthcare – to the same effect. The only parts of our healthcare system that are working better than they did 50 years ago are those that are still mostly free market. Lasik has developed and gotten cheaper, plastic surgery has improved and gotten cheaper. But most aspects of healthcare have gotten more expensive and degraded in quality.
In the 60’s I went to the emergency room, and was seen within a few minutes and discharged often within an hour. I came in with a broken leg and left in a cast in 2hrs. This weakend my wife went to the ER for very severe abdominal pain – a possible gall blader attack or apendicitis. It took more than 3hrs to see a nurse. We were there for 8hrs total, as were many many many other people.
Further the cost of our visit as well as the many others waiting was enormous.
In the 80’s I like most americans went to a family doctor – a practice that was one or two or 3 doctors. I saw the same people every time. These people knew me, knew my problems. Small practices are extinct today – the cost of compliance with government regulations – particularly those as part of Obamacare have made small practices fiscally impossible. The practice I go to now has 40 doctors and is part of a statewide chain. Everything is much more expensive. But my care is no better. And with each visit I spend a fair amount of time telling the doctor things my family doctor knew.
One of the things that you left wing nuts should pay attention to is trends. Do the purportedly amazing government programs that you push actually change prexisting trends.
Medicare – dramatically changed the frequency with which older people visited the doctor. It had ZERO effect on preexisting health trends among the elderly. Both in the US and globally 3 things have dramatically increased life expectance globally.
They alone are responsible for nearly the entire gains in life expectance everywhere over the past 200 years.
These are: antiseptics, antibiotics, and IV fluids. All of these are inexpensive.
Probably the next most significant was the ability to provide heat and light without filling the home with the residue of burning dung, wood, or coal.
Obamacare was purportedly going to save millions of lives. That claim was a farce from the start. There has been absolutely no dpositive disruption of any healthcare trend since PPACA took effect.
It is extremely rare that money of a government program has a net positive effect.
Young, the truth is that all departments concerned with the border are already well-short of funds.
You are talking about the funds to PROCESS the asylum seekers. (95% of which do not qualify for asylum)
We need to put the military on the border and turn back ALL the asylum seekers.
The we can get on with policy debates.
Young, you are right. But for some reason the Republicans in the House are not using the power they have, which is the power of purse. They should have passed all the appropriation bills months ago and forced the Senate to negotiate on their terms.
Daniel,
Exactly.
It’s just amazing how all those in DC hold themselves unaccountable for anything and everything.
If it gets so destructively criminal, they are required to say out loud ” I take full responsibility” and that during and immediately before they continue doing the same thing and worse.
It’s really astounding. I once heard dual nuke man Harry S Truman canned a cabinet member for grifting a refirgerator. “YOU’RE FIRED!”
I guess that was before those in DC , at least the demoncrats, figured out any crime they commit is exempt from everything, “because”, “tradition!”, and “if we were to hold them accountable, it would happen a LOT, explained of course as “tit for tat” “garbage”. SEE NOTHING IS WRONG HERE, MOVE ALONG, MOVE ALONG !
The time for legal gamesmanship must end. Pursuing Justice as though it is an academic exercise has become the petard on which the corpse of Justice will be raised. We see it every day! A black robed judge renders a verdict. Another reverses it. Then another. Back and forth, all citing the same Constitution. They negate the will of the people at a whim. And The People tire and become jaded and cynical and bitter, turning from respect for the Law and obedience to it. If the legal elite continue to play this game, the final court of appeal will be the streets.