For the third time in five years, senators will be sworn in as jurors for an impeachment trial. But the chamber is expected to spend far less time on the charges against Homeland Security Secretary Alejandro Mayorkas than the ones brought against former President Donald Trump — or maybe no time at all.
The Republican-controlled House impeached Mayorkas by a single vote margin on Feb. 13, recommending that Mayorkas be removed from office over his handling of the U.S.-Mexico border. With two articles of impeachment, the House charge that Mayorkas has “willfully and systematically” refused to enforce existing immigration laws and breached the public trust by lying to Congress and saying the border was secure.
Democrats say the charges amount to a policy dispute, not the “high crimes and misdemeanors” laid out as a bar for impeachment in the Constitution.
The 214-213 vote, a narrowly successful second try after the House had rejected the effort a week earlier, was the first time in nearly 150 years a Cabinet secretary had been impeached. And while the Senate is now obligated to consider the charges, Senate leaders have shown little interest in spending much time on the matter. Two-thirds of the Senate would be needed to convict Mayorkas, and not a single Democrat has signaled support for the impeachment push.
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Still, there is a process that senators have to follow under the rules for impeachment, and all Democrats would likely have to stick together to dismiss the charges completely.
A look at next steps and the Senate’s options once the Mayorkas impeachment moves across the Capitol:
Convening an impeachment trial
Under impeachment rules, a group of House managers — members who act as prosecutors and are appointed by the speaker — will deliver the impeachment charges by reading the articles on the Senate floor, usually after making a ceremonial walk across the Capitol with the articles in hand.
House Speaker Mike Johnson, R-La., has not yet said when that will happen, but it could be as soon as this week, when the Senate returns to session after a two-week recess.
Senators will later be sworn in as jurors, likely the next day. The Senate must then issue a summons to the official who is being tried to inform them of the charges and ask for a written answer. But Mayorkas would not have to appear in the Senate at any point.
After that, the rules generally allow the Senate to decide how to proceed. Senate Majority Leader Chuck Schumer, D-N.Y., hasn’t yet said what he will do, but he is expected to try and dismiss the trial in some manner, if he has the votes. Democrats control the Senate, 51-49.
Voting to dismiss the charges
If Schumer can muster a simple majority, Democrats could dismiss the trial outright or move to table the two articles, ending the House’s effort and allowing the Senate to move on to other business.
Getting to 51 votes would require every single Democrat and the chamber’s three Independents to vote to dismiss, or potentially fewer if any Republicans join them.
While several GOP senators have questioned the need for a trial, it’s unclear whether any of them would go as far as to vote to dismiss the charges right at the start.
Some Republicans are vocally opposed to that approach. In a letter last week, Utah Sen. Mike Lee said in a letter to Senate Republican Leader Mitch McConnell that Democrats should not be able to “shirk their Constitutional duty.”
But McConnell has little control over the process. If Democrats stick together and vote, they can dismiss the trial — only a simple majority is required.
In Trump’s second impeachment shortly after the Jan. 6, 2021 attack on the Capitol, Sen. Rand Paul, R-Ky., raised an objection that the trial was unconstitutional because Trump had already left office, effectively a move to dismiss it. Most Republicans voted in support of Paul's objection.
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Referring to committee
If Democrats are not able to dismiss the trial or table the articles, there is a second option: They could follow the precedent of several impeachment trials for federal judges over the last century and hold a vote to create a trial committee that would investigate the charges.
While there are no hard rules on how to form a trial committee, the Senate has in the past passed a resolution authorizing the party leaders to each recommend six senators and a chairperson to run it. Those committees had the ability to call witnesses and issue final reports to the Senate ahead of eventual trials.
While there is sufficient precedent for this approach, Democrats are likely to try and avoid a trial if they can halt the process completely, especially in a presidential election year where immigration and border security are top issues.
Echoing Trump’s defense during his impeachments, Schumer has called the House effort a “sham.”
“House Republicans failed to produce any evidence that Secretary Mayorkas has committed any crime,” Schumer said. “House Republicans failed to show he has violated the Constitution. House Republicans failed to present any evidence of anything resembling an impeachable offense.”
Moving to a trial
If the Senate were to proceed to a trial, senators would be forced to sit in their seats for the duration, maybe weeks, while the House impeachment managers and lawyers representing Mayorkas make their cases. The Senate is allowed to call witnesses, as well, if it so decides. Senators also have an opportunity to question the two sides before a final vote on whether to convict.
While the right flank of the Senate’s GOP conference is lobbying for that scenario, senators in both parties have said they don’t think it’s the best use of the chamber’s time. And some Republicans have suggested the process was not serious enough in the House.
North Carolina Sen. Thom Tillis said earlier this month that he thinks Mayorkas has fallen short but that “there’s a lot of time that goes into a thoughtful impeachment process, and a couple of hearings in a month, or month and a half doesn’t seem like it fits that bill.”
