House Republicans Are Pushing To Impeach Mayorkas. Legal Experts Say It’s Not So Simple

House Republicans Are Pushing To Impeach Mayorkas. Legal Experts Say It’s Not So Simple

Jennie Taer on June 30, 2023

House Republicans’ impeachment push against Department of Homeland Security (DHS) Secretary Alejandro Mayorkas may lack sufficient evidence of “high crimes and misdemeanors,” according to legal experts who spoke with the Daily Caller News Foundation.

Several House Republicans have filed articles of impeachment against Mayorkas over his handling of the southern border, where federal authorities have seen a surge in illegal migrants under his leadership of DHS, while others are awaiting the findings of a weeks-long investigation being conducted by House Homeland Security Chairman Mark Green.  While legal experts say Mayorkas’ management of DHS may be a target of political criticism, they believe Republicans may have difficulty arguing Mayorkas’ conduct sufficiently constitutes grounds for impeachment.

“I don’t see any impeachable high crimes and misdemeanors,” Alan Dershowitz, an attorney and Harvard Law professor, told the DCNF.

Former Rep. Bob Barr, an attorney and a Republican who served as House manager during the impeachment trial of President Bill Clinton, told the DCNF that Republicans in the House seem to be targeting Mayorkas for “incompetence.”

“But incompetence is neither a high crime nor a misdemeanor. If we start impeaching Executive branch officials for incompetence, we would be extremely busy during administrations of both parties,” Barr said.

Republicans who have already filed articles of impeachment accuse Mayorkas of having “abdicated his duties,” being derelict in his “duty in protecting our nation’s borders” that have “constituted high crimes and misdemeanors” and “intentionally failing to secure our homeland and putting the lives of every American in danger.”

Green previously told the DCNF that he has evidence that shows Mayorkas potentially committed fraud during his time at DHS, but hasn’t presented anything yet on the matter.

Republican Texas Rep. Pat Fallon, who is one of the members of congress that’s already filed impeachment articles against Mayorkas, told the DCNF that Mayorkas presents a “clear and present danger” to the nation, and has violated a Congressional statute requiring DHS to maintain “operational control” of the border.

“This is, by any definition, undeniably not operational control of the southern border,” Fallon said. “Not only has Sec. Mayorkas lied to Congress, I feel very strongly that there is a legal basis to his removal as he’s proven to be nothing short of a clear and present danger to the United States of America.”

David Schoen, who represented President Donald Trump during his impeachment and is a practicing attorney, told the DCNF that impeachment is a very powerful action that should be used in the worst of cases.

“I believe impeachment should be reserved for only the most egregious cases that actually involve treason, bribery or some extraordinarily serious high crimes and misdemeanors. I think the abuse of the constitutional impeachment authority as a weapon for addressing political differences, even when the differences are profound and even when one believes the actions or policy of the potential impeachment target truly are bad for the country,” Schoen said.

“And when it is abused I believe it demeans our Constitution and the right to vote. I believe the ballot generally is the answer,” Schoen said.

If Mayorkas is impeached in the House, a trial will take place in the Senate. Ultimately, Congress decides whether or not to pursue charges of “treason, bribery, or other high Crimes and misdemeanors,” which have no specific Constitutional definitions, according to Congress.

“If Republicans in the House feel strongly that his policies and actions are undermining our security or have other complaints then I would think the best answer is hearings and further investigation with public exposure for the policies and actions believed to be so terrible as to be impeachable,” Schoen said.

When asked whether Republicans have any legal ground to stand on in their efforts to impeach Mayorkas, Barr said “yes and no.”

“Since impeachment is not so much a strictly ‘legal’ matter as a political one, it can be based on pretty much anything, unlike a prosecution under criminal law,” Barr told the DCNF. “However, to maintain a degree of credibility, especially for when the ‘other’ party takes over the House, and to at least make an effort to be consistent with what the framers had in mind, there ought to be at least a colorable basis establishing a violation of a law or something that seriously undermines lawful procedures.”

Spokespeople for Marjorie Taylor Greene of Georgia and Andy Biggs of Arizona, who have filed articles of impeachment against Mayorkas, didn’t respond to requests for comment.