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The Senate can't waste time on a phony Mayorkas impeachment trial

There's more than enough on the Senate's plate that should keep it from giving too much credence to Republicans' impeachment theater.

UPDATE (Feb. 13, 2024, 7:45 p.m. E.T.): After the House GOP's effort to impeach Homeland Security Secretary Alejandro Mayorkas narrowly failed on Feb. 6, lawmakers succeeded on a second party-line vote Tuesday night.

The House is set to vote Tuesday on two articles of impeachment against Homeland Security Secretary Alejandro Mayorkas that charge him with not being good at his role handling U.S. immigration policy. Those charges aren’t based on any evidence that Mayorkas has committed high crimes or misdemeanors. Given their extremely slim majority, it’s no guarantee that Republicans have the votes to impeach Mayorkas. If they do, though, then their passing one or both articles would jump-start the next stage: a Senate impeachment trial.

It would be the first and only impeachment trial of a Cabinet member since 1876, when Secretary of War William Belknap, who had already resigned, was acquitted. In this case, the Senate needs to quickly dispose of the rambling, deceptive, explicitly partisan charges against Mayorkas and acquit him. The less time it spends dealing with this sham of an impeachment, the better. There’s work the Senate needs to get done that treating these articles with even an ounce more seriousness than they deserve will only hinder.

The less time it spends dealing with this sham of an impeachment, the better.

I once worried that unceremoniously tossing out the charges against Mayorkas would be a blow to impeachment as a credible method of keeping officials in check. But that ship sailed with the GOP’s efforts to remove President Bill Clinton. It kept on sailing with the party’s decision not only to defend former President Donald Trump at all costs but also to seek retribution on his behalf. The GOP has already made impeachment, as Jack Goldsmith, a Harvard Law School professor, recently told The New York Times, “more of a political and public relations tool than a serious mechanism of executive branch accountability.”

If the House does vote to impeach on Tuesday, then the Senate will have some decisions to make. The overarching impeachment rules the Senate adopted in 1986 say a trial must begin once the House transmits the articles of impeachment over to the Senate. Former House Speaker Nancy Pelosi, D-Calif., strategically delayed the start of both of Trump’s trials by withholding the articles until the Senate had laid out how it would proceed. House Speaker Mike Johnson, R-La., seems likely to throw this live bomb into the laps of Senate Democrats as quickly as possible.

The problem is the Senate is a very, very slow-moving institution. Passing a bill requires days, if not weeks, on the legislative calendar to overcome the various speed bumps and hurdles the body’s rules require without unanimous consent. If an impeachment trial is suddenly thrown into the works, then the queue could quickly become unmanageable. That’s why Democrats, in a hurry to begin passing their legislative agenda, opted for a speed-run of Trump’s second trial rather than eat up more of the first 100 days of President Joe Biden’s term.

Among other things on the docket is the Senate’s newly released national security supplemental measure, which is packed with provisions to address Republican’s professed concerns about the southern border. Even though an enforcement-only strategy wouldn’t address the root cause of people wanting to come to America, conservative immigration policies are the bedrock of the deal. Despite the paltry justifications given in their rush to impeach Mayorkas, House Republicans have no interest in updating the immigration laws he’s baselessly accused of violating. Rather than lock in harsher asylums laws and billions in funding for the Border Patrol and other parts of the immigration apparatus, Republicans would prefer to have the spectacle of a Biden Cabinet official on trial. Large swaths of the federal government are also due to run out of money in less than a month, another circumstance that doesn’t exactly leave a lot of free time for an impeachment trial.

The good news is that while past presidents’ impeachment trials consumed the vast majority of the Senate’s time and attention, that doesn’t have to be the case here. As impeachment scholar Joshua Matz recently told Politico Playbook, there are a number of options that Democrats could choose to avoid the headache of a full trial for Mayorkas. The Senate possesses the “sole power to try impeachment trials” under the Constitution, giving it a lot of freedom to determine what that looks like. (The Supreme Court signed off on that view in 1993’s Nixon v. United States.) In addition to the 1986 processes, each impeachment trial also allows for the drafting and passage of a new set of rules for that particular trial. This gives Senate Democrats extra leeway to set the course of the trial, as we saw then-Majority Leader Mitch McConnell, R-Ky., manage during Trump’s first impeachment.

The vast majority of America’s impeachment trials, excepting only the four presidential trials and Belknap’s, have centered on the alleged misdeeds of federal judges. And rather than take up precious floor time issuing subpoenas and hearing evidence, the Senate has often outsourced that work to a specialized committee that reports its findings to the full Senate for a vote.

That’s an option for Mayorkas, but such a punt could drag out the process further. The Senate would have to establish the committee and give updates on its work. Forming such a committee would also give an air of legitimacy to the charges against him, which are — again — based on a policy disagreement rather than any specific allegation of official wrongdoing.

The rules of Mayorkas’ potential trial could also be drafted in such a way that allows the Senate to quickly dismiss the articles of impeachment, as was the case in the trial of Clinton. If Senate Majority Leader Chuck Schumer, D-N.Y., follows suit, after opening arguments from House impeachment managers and the defense, senators could vote on a motion to dismiss. Unlike a conviction itself, which would require a two-thirds vote, a dismissal would require only a majority to pass. Democrats could be accused of not taking immigration seriously, but that will be the Republicans’ line when Mayorkas is inevitably acquitted.

There have been, and will be, times when it’s of the utmost importance that the Senate fully weigh and assess the alleged crimes of officeholders. This isn’t one of those times. Mayorkas’ impeachment is a shambolic attempt by House Republicans to politically injure his boss. Senate Democrats have the option of continuing to serve the American people and letting the GOP stamp its feet in frustration. They should take it.