To the contrary, his impeachment is based on the kind of policy and partisan differences that were implicitly rejected by the framers of the Constitution.
In the Federalist Papers, Alexander Hamilton warned that “the greatest danger” of Congress abusing its power to impeach would be if “the decision [to impeach] will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.” The impeachment of the Homeland Security secretary, Alejandro Mayorkas, by a partisan vote of 214-213 manifests this danger.
The original vote not to impeach was 214-216. Nothing about the guilt or innocence of Mr. Mayorkas changed in the time between the votes. The only thing that did change was the number of Republicans and Democrats available to cast votes in the House on a particular day.
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The one-vote margin for impeachment resulted from the fortuity — for the Republicans — that one Democrat tested positive for Covid, and another was delayed by a mechanical problem on his airplane. Had they both been able to vote no, as they intended to, impeachment would have been denied again.
Mr. Mayorkas is the first cabinet member in American history to be impeached by the House of Representatives but he will surely not be the last. Partisan impeachment will now become a norm based on “the comparative strength of the parties,” rather than “real demonstrations of innocence or guilt.” The prior impeachments of Presidents Clinton and Trump set the stage for this partisan abuse of the Constitution by both parties, but the impeachment of Mr. Mayorkas makes the precedent even more likely to become routine against all officeholders.
In addition to this vote having been based on the momentary “comparative strength” of the parties, it also violated the constitutional criteria for impeachment. When Hamilton talked about “real demonstrations of innocence or guilt,” he was referring to innocence or guilt of “treason, bribery or other high crimes and misdemeanors” — the criteria explicitly set out in the Constitution. This impeachment, though, was not based on guilt of any impeachable offense. To the contrary it was based on the kind of policy and partisan differences that were implicitly rejected by the framers of the Constitution.
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I argued in the Senate against the first impeachment of Mr. Trump that the grounds for his impeachment — abuse of power and obstruction of Congress — were not constitutionally permissible criteria for removal from office. The vast majority of Republicans agreed with my argument and voted overwhelmingly against removing him. The vast majority of Democrats rejected my argument and voted overwhelmingly to remove him. Now the shoe is on the other foot.
On one hand, Democrats who insisted on broad, vague, and unconstitutional criteria to impeach and remove Mr. Trump are now insisting on narrow and specific criteria for impeaching Mr. Mayorkas. Republicans, on the other hand, are now forgetting the arguments they accepted on behalf of Mr. Trump and insisting that the criteria be broad, open-ended, and comparable to those they rejected in Mr. Trump’s case. Both sides have failed to heed the warnings of Hamilton and other framers, especially James Madison — the father of our Constitution. They sought to prohibit impeachment based on the kind of partisan and policy differences that led to the Mayorkas vote.
Mr. Mayorkas will be acquitted by the Senate, hopefully by a vote that includes many Republicans as well as all Democrats. This reality too shows how impeachment by the House, in the face of absolute certainty of acquittal by the Senate, has turned impeachment from a procedural prerequisite to removal into an independent tool designed to serve purely partisan political ends without regard to whether it will be followed by removal. Indeed, there will be no serious effort by Republicans to remove Mr. Mayorkas.
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They have already achieved their partisan goal by impeaching him, just as Democrats achieved their partisan goal by merely impeaching Mr. Trump, and Republicans by merely impeaching Mr. Clinton. These are all abuses of a constitutional process designed to remove, not embarrass, an incumbent who violated the explicit constitutional criteria. If the goal of House Republicans is to express their disapproval of Mr. Mayorkas and his border policies, they could simply vote to censure him, but a partisan vote to impeach him is wrong.
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Whatever the vote in the Senate, the damage has been done and Hamilton’s danger has turned into a wound inflicted on the Constitution by partisans on both sides.
Alan Dershowitz is professor emeritus at Harvard Law School and the author of “Get Trump,” “Guilt by Accusation” and “The Price of Principle.” Andrew Stein, a Democrat, served as New York City Council president, 1986-94. This piece is republished from the Alan Dershowitz Newsletter.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Tampa Free Press.
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