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.
This clown took an oath. And he’s in charge of Homeland Security. Homeland Security would include protecting our border. Enough said. Impeach this lying cockroach. Do your job Congress.
“I cannot see the limiting principle . . .” (JT)
Haven’t you heard? We don’t need a “limiting principle.” All we need is a really scary “hypothetical.”
Here’s one: What if he orders DHS officers to shoot any immigration officer who disagrees with the administration? Clearly that means that he does not enjoy the immunity of a “limiting principle.”
I disagree with this in some respects:
1. Mayorkas may have lied to Congress, which is a crime; and
2. He may have unlawfully released illegal immigrants into the country (for example through the improper use of parole) and otherwise violated law in implementing his immigration policy.
If either of these can be demonstrated to the satisfaction of a majority in the House, that would suffice for impeachment. They would be high crimes and misdemeanours. There is no need for Congress to seek a court judgment first, and that has never been required for impeachment. An inquiry should be conducted by the Judiciary Committee, as would be customary.
These are not mere policy differences but, if shown, serious violations of law, some of which are imposing massive costs.
What laws were violated?
How do you distinguish this from prosecutorial discretion?
How do you distinguish this from Trump’s exercise of prosecutorial discretion in his administration? His January 2017 executive order, “Enhancing Public Safety in the Interior of the United States” prioritized deportation of noncitizens who:
– have been convicted of any criminal offense;
– have been charged with any criminal offense, where the charge has not been resolved;
– have committed acts that constitute a chargeable criminal offense;
– have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency;
– have abused any program related to the receipt of public benefits;
– are subject to a final order of removal but have not departed; or
– in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Thus, there were “unlawful releases” of other migrants under Trump, as well.
To me, the only difference is where the two presidents drew the lines of who to not prosecute.
And if that is the case, then the difference is absolutely a POLICY decision, rather than a high crime or misdemeanor.
https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/
Daniel, no response to the above questions?
You have made many more recent comments but seem to avoid any substantive conversation, which is pretty sad for a legal blog. I thought you might be more interested than others in engaging in actual substantive discussion. Guess I was wrong.
Svelaz, no matter what anybody on here says about you and your trolly sucky puppets, you are truly irreplaceable, in a Beyonce way
😂
I would think that “violation of the oath of office” and “perjury before Congress” would be sufficient “misdemeanors” to kick this guy to the curb. We need cabinet members who will follow the law, as it is written.
The 1,954 miles (3,145 km) border between the United States and Mexico traverses a variety of terrains, including urban areas and deserts.
The total length of all sections of the Great Wall of China ever built adds up to about 13,171 miles (21,196 km).
1,954 miles / 13,171 miles = 0.14836 or ~14.8% of the Great Wall’s length.
Make peace with the Chinese and have them build it. At that rate maybe we could get one for the Canadian Boarder to.
Mayorkas – OUT | Xi – IN (obviously Xi’s doing a better job)
Dear Prof Turley,
You know, dear Prof, when even the most stalwart official guardians of president Biden say; ‘even the Republicans’ most distinguished legal scholar admits there is no evidence to impeach genocide Joe’ .. . they’re talking about ~> you.
Yes, yes, I know that statement was blurted out under duress during one of those congressional circus show hearings .. . still, they’re clinging to it for dear life.
At least the ‘overwhelming evidence’ has proceeded to an official ‘inquiry’. Maybe.
Personally, I believe there’s enough ‘evidence’ to ‘snap’ impeach every cockroach inside the Loop.
It would be funny .. . if it weren’t so tragic.
*rage, rage against the dying light .. .
Categorizing Mayorkas’ works as “maladministration” isn’t much different than categorizing a bank robbers work as “mal-withdrawal of deposits”.
If a crime is committed and we have an “alleged suspect” in sight – then impeachment (accusation leading to trial) is proper and warranted.
Please, Mr. Turley, explain to us again how what’s been done to us at the border is NOT a crime?
We’re waiting…
Turley is wrong on this one. Turley defends Mayorkas by saying, “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.” This is a false argument. We are not made saints by other men’s sins, sayeth the sage. Whatever Belknap, the hapless Secretary of War in the President Grant Administration , did or did not do is irrelevant to today’s reasons for impeaching Mayorkas. The founders gave us impeachment specifically to give the people some measure of control over elected and appointed officers of the government. If we fail to use it when necessary, the consequences might be grave. The people see what’s happening at the “secure” border every night on the news and they are well aware of how Mayorkas and his boss, Joe Biden, are lying to the nation about the crisis at the border. The notion that this type of impeachment has never before been done or only once has been done is totally of no concern because we have never before been victimized by such wrongdoing. There’s a first time for everything. Turley loses on this one.
Turley is wrong on this one. Turley defends Mayorkas by saying, “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.” This is a false argument. We are not made saints by other men’s sins, sayeth the sage. Whatever Belknap, the hapless Secretary of War in the President Grant Administration , did or did not do is irrelevant to today’s reasons for impeaching Mayorkas. The founders gave us impeachment specifically to give the people some measure of control over elected and appointed officers of the government. If we fail to use it when necessary, the consequences might be grave. The people see what’s happening at the “secure” border every night on the news and they are well aware of how Mayorkas and his boss, Joe Biden, are lying to the nation about the crisis at the border. We don’t need star chamber trials of the sort thrust upon former President Donald Trump. That was not envisioned by the founders who understood that it would cripple the government. Instead, they prescribed using the power of impeachment – a very democratic instrument in which the entire nation is represented in the vote up or down. For added importance, the founders said that, if impeached and convicted by the Senate, the wrongdoer could then and only then face indictment and punishment. A person given the authority and responsibility to protect the nation’s national security and who then moves to weaken it by failing to enforce the laws enacted to control the border, should be impeached and removed from office and subject thereafter to indictment and additional punishment in accordance with the Constitution. The notion that this has never before been done or only once been done is totally of no concern because we have never before been victimized by such wrongdoing. There’s a first time for everything. Turley loses on this one.
Well said professor.
Point out all the evidence of incompetence and gross negligence of Mayorkas for all to see.
Just like the rest of the Biden admin.
Mayorkas committed perjury and also obstructed Congress during House hearings. Further, because we live during an era of international terrorism (war on terrorism), his conduct with respect to the southern border is treasonous. All these are impeachable offenses.
Although I would love to see Mayorkas removed from office, he is only guilty of following orders. Mayorkas will only be removed by the next presidential election.
Mayorkas has been the essential lynch pin to effectively dismantle federal immigration law in the United States. Hitler may have ordered the execution of all Jews, but the United States held all of his subordinates responsible during the 1946 Nuremburg Trials. I would submit that Mayorkas IS responsible for the invasion at the Southern Border and not just simply “following orders”.
skyraider1717: Agree. But if Mayorkas is the means, what is the end, I ask?
What is one side of the political spectrum aiming to accomplish? What is the true (not speciously “altruistic”) end-goal?
While I find Mayorkas exceptionally unlikable and arrogant, he is merely following Biden’s marching orders. If something is to be done the spotlight should be on Biden.
he is merely following Biden’s marching orders,
It is more clear by the day, the cabinet was selected by Obama to carry out Obamas orders. NOBODY is reporting to Biden. During the SEC DEF disappearance, it was admitted Biden knew nothing about it. ie, the SEC DEF is not talking to the President daily. with Ukraine, and the daily attacks on Americans in the middle east. The daily retalitory strikes from the United States, the ongoing talks with Israel, Biden was getting zero communication from the SEC DEF . The SEC DEF is in daily communication with the person giving orders, that person is not Biden.
Obama is pulling the Strings and placed his puppets at the head of the agencies of the administrative state. Obama controls those agencies.
I think we should use a lower target. I would try for treason charged against both the president and his co-dependency Mayorkas. Throw in Jill as aiding and abetting. You can’t pre-empt that with a pardon for either. Takes 2 witnesses and we have millions, that goes back to Roman Law. They have allowed a flood of Fentanyl and other Drugs over the border not seen by any previous administration resulting in body counts each year that now comes close to exceeding deaths by cars and Guns. Took down parts of the wall and sold off millions of dollars of equipment for virtually nothing, have taken money from PRC minions and lets the cartels run unchecked along the border corrupting police and courts on both sides, including the alleged president of Mexico. The costs to the border counties in Texas is nearly bankrupting by raising their medical costs as they treat injured or dying migrants and also have to provided medical care to migrants in Federal detention centers. The country knows how to end this and the prescription is simple. The Democrats are only worried because people in the democrat controlled cities are losing their relatively plush government subsidized existence because of the need to pay for the migrants, and the citizens are getting angry.
This long winded article is rubbish! Then tell us how to remove this incompetent Cabinet member. They don’t even know who or where the 10 million illegals are. The border jumpers are clearly violating our laws and this idiot just waves them in with our taxpayers money. When is this insanity going to stop. Turley thinks the voters will decide but what if they steal the next election! Just wait till 2028! No, time to act now!
“I do not believe that the current evidence against him would rise to the level of an impeachable offense.” (JT)
But wait:
He’s an “officer” (14.3). Whose actions constitute a rebellion against the Constitution (14.3) Which *Clause* is “self-executing” (14.3, with a bunch of hand-waving).
So “clearly,” the clerk who issues marriage certificates in, say, Des Moines can remove him from office.
All hail 14.3. And the Leftists who chant it while pounding their scepter.
I am curious, what remedy exist within the Constitution for a Federal Officials refusal to enforce the Law? The only remedy I can find is in the impeachment process. Would it not be a “High Crime” to allow an invasion of the United States by an Army of other countries without taking action to protect American sovereignty?
The Democratic Party was elected based on their refusal to follow the law, not a single Democrat has been charged for sanctuary policies and charging mayorkas for following Biden’s policy doesn’t really work.
gutless Republicans will do nothing but give more trillions to America Hating Democrats
Mayorkas is not a bad cabinet member, he is knowingly and obediently following exactly what Biden and his far left handlers want him to do. It’s a cliche, but “the fish rots from the head down”.