Experts Blast Mayorkas Impeachment Probe for Lack of Evidence

House Republicans on Wednesday held their first impeachment hearing into Homeland Security Secretary Alejandro Mayorkas, asserting that he should be impeached over his management of border policies amid a recent surge in illegal immigration.

But the push to impeach the embattled Cabinet member has sparked a fierce debate over the constitutional grounds for such a proceeding, with constitutional law experts, Democrats, and even some Republicans raising concerns that an impeachment isn’t warranted and would degrade the seriousness of the process. 

“Impeachment is the nuclear weapon of congressional action,” says constitutional scholar Philip Bobbitt, a professor at Columbia Law School and expert on the history of impeachment who co-authored an updated edition of Charles Black’s classic legal text, Impeachment: A Handbook, in 2018. “The problem is that because it’s so dramatic, it gets a lot of political action. It focuses donors and bases, and it raises the stakes of every hearing and accusation.”

Republicans “haven’t alleged anything that sounds like a constitutional crime that would purposefully destabilize the state,” Bobbitt adds. “Some might say he's doing a terrible job and that's destabilizing the state, but at most that’s inadvertence.”

Rep. Mark Green, the Tennessee Republican who chairs the House Homeland Security Committee, argued on Wednesday that grounds for impeachment could extend beyond criminal behavior to include "gross incompetence," accusing Mayorkas of endangering fellow Americans through lax border enforcement policies. “Secretary Mayorkas has brazenly refused to enforce the laws passed by Congress and has enacted policies that knowingly make our country less safe,” Green said.

But legal experts warned that policy disputes, even if contentious, do not meet the constitutional impeachment threshold of high crimes and misdemeanors. "If members of this committee disapprove of the Biden Administration’s immigration and border policies, the Constitution gives this Congress a wealth of legislative powers to change them—impeachment is not one of those powers," Frank Bowman, a professor emeritus of law at the University of Missouri School of Law, testified at the hearing. "Dislike of a president's policy is certainly not one of [the grounds for impeachment].”

Legal scholars agree that the purpose of impeachment is to serve as a constitutional mechanism for the removal of federal officials who engage in serious misconduct, ensuring accountability and safeguarding the integrity of the government. Impeachable actions typically encompass severe offenses such as corruption, abuse of power, or subversion of the U.S. Constitution. These criteria, often cited as high crimes and misdemeanors in the constitutional context, provide a framework for evaluating whether an official's conduct warrants the extraordinary measure of impeachment, a process that involves both the House of Representatives and the Senate.

Mayorkas would be the first Homeland Security secretary to be impeached, with the only other impeachment of a Cabinet official occurring in 1876 with Secretary of War William Belknap. Democrats contend that Republicans have not pinpointed any grounds for impeachment and that the motivation behind the effort is rooted in their disagreement with the policies of the Biden Administration.

The hearing featured testimony from Republican attorneys general from Montana, Oklahoma, and Missouri, who advocated for stricter border security. They outlined the consequences of the border crisis in their states, highlighting issues such as the impact on communities of drugs trafficked across the border, including fentanyl.

In response to the impeachment push, the Department of Homeland Security (DHS) released a memo characterizing it as a "baseless political attack,” highlighting its efforts in removing 1.4 million individuals encountered at the border in fiscal year 2022, the highest in any previous year. DHS also noted increased efforts in stopping the flow of fentanyl and arresting individuals involved in fentanyl-related crimes. The hearing came as border crossings have reached a record high, with more than 2.4 million apprehensions in the 2023 fiscal year, according to government data released in October.

Even some Republicans have expressed reservations about the proceedings, acknowledging the need for more concrete evidence or legal justification before pursuing such a significant action. “Secretary Mayorkas did not commit an impeachable offense,” Republican Rep. Ken Buck of Colorado wrote on X. “Despite my strong disagreement with his handling of our southern border, which puts this country at grave risk, he is not guilty of high crimes or misdemeanors.”

Republican Rep. Tom McClintock of California, speaking on the House floor in November, warned his party against “redefining” impeachment in part because it would set a precedent for future impeachment efforts against Republicans. “The next time Democrats have the majority, we can expect this new definition to be turned against the conservatives on the Supreme Court and any future Republican administration,” he said. “And there will be nobody to stop them, because Republicans will have signed off on this new and unconstitutional abuse of power.”

Conservative legal scholar Jonathan Turley, who has previously given testimony for Republicans during congressional hearings, argued in an op-ed published ahead of the hearing that the House GOP lacked evidence to support a Mayorkas impeachment. “Being bad at your job is not an impeachable offense,” he wrote. “There is also no current evidence that [Mayorkas] 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.”

Before the hearing, a group of more than two dozen legal scholars, including Bobbitt, wrote an open letter to House GOP leaders expressing their concerns with the impeachment proceedings against Mayorkas, claiming that his impeachment would be “utterly unjustified as a matter of constitutional law.” 

“If allegations like this were sufficient to justify impeachment, the separation of powers would be permanently destabilized,” the letter states. “It is telling that there is absolutely no historical precedent for the impeachment charges that House Republicans have articulated.”

The hearing unfolded against the backdrop of an intensified focus by the House GOP majority to target the Biden Administration, prompting concerns that impeachment is being weaponized for political purposes. House Republicans are actively pursuing an impeachment inquiry into President Joe Biden and are concurrently taking steps this week to hold his son, Hunter Biden, in contempt of Congress. Some Republicans see targeting Mayorkas as a more feasible endeavor, especially amid the recent surge in migrants that has become a pivotal campaign issue. “I don’t think impeachment is losing its gravitas, but I think it’s losing the restraint and care with which it should be deployed,” Bobbitt says.

The House Homeland Security Committee is expected to conduct additional impeachment hearings against Mayorkas in the coming weeks, setting the stage for potential articles of impeachment to be considered by the full House.