Once the Senate receives the articles of impeachment for Department of Homeland Security Secretary Alejandro Mayorkas, it will decide whether he should be convicted and removed from office. But the impeachment trial of Mayorkas could be over almost as soon as it begins.
In February, Republicans in the House of Representatives voted to impeach Homeland Security Secretary Mayorkas by a vote of 214-213. The first floor vote to impeach Mayorkas failed. That marked the first time since 1876 that such an impeachment vote has taken place.
With Democrats in the majority, the Senate is unlikely to hold a lengthy impeachment trial that would bring most other business on the floor to a halt. Senate Majority Leader Chuck Schumer said Tuesday, "We're going to try to resolve this as quickly as possible. Impeachment should never be used to settle policy disagreements."
The Senate has three main options for avoiding a full trial, and all of them would only require a simple majority vote.
First, a senator could offer a motion to dismiss the articles of impeachment, and that would dismiss the articles entirely, bringing the process to an end.
Another option is that a senator could raise a point of order that could claim the articles are unconstitutional or violate the Senate rules in some way.
Speaker to send Mayorkas impeachment articles to Senate next week
House Republicans were originally set to bring their impeachment case to the Senate this week.
Third, the Senate could vote to send the articles of impeachment to a committee. That committee could proceed with a trial, keeping evidence and witnesses away from the spotlight of the Senate floor, or the committee could delay action and leave the issue pending without a clear resolution.
"All of those would obviate the need for a full-on trial, which I think the chances of that happening are next to zero," said Paul Schiff Berman, the Walter S. Cox professor of law at the George Washington University School of Law. He said the Senate is not required to hold a trial, and he supports the Senate quickly dismissing the Mayorkas impeachment.
"I think it's important to recognize how deficient the House impeachment articles are. They haven't even come close to alleging any kind of crime or misdemeanor that Mayorkas has committed. They haven't brought forth any evidence. The articles themselves are a mess from a legal point of view," Berman said.
While Democrats would like to quickly set the impeachment trial to the side, Republicans in the Senate would like to see a trial move forward. Senate Minority Whip John Thune said on the Senate floor Tuesday, "I don't think it's too much to ask that we look seriously at the charges the House has brought at one of the chief architects of the Biden administration's lax border security regime, individuals so disconnected from the reality of the situation we face that he has repeatedly, publicly asserted that the border is secure."
Impeachment is an inherently political process, and experts have been tracking an increase in impeachment resolutions for decades. J.D. Rackey from the Bipartisan Policy Center says the overuse of impeachment runs the risk of reducing accountability in government.
"We're noticing a trend over the past 30 to 50 years of more and more impeachment. And so I think the average American should be concerned about the trends we're seeing in Congress. Members themselves have started to acknowledge that maybe this is getting out of hand," Rackey said.
Schumer has kept details of his plan quiet, so the public likely won't know how Democrats plan to address the trial on the Senate floor until after senators are sworn in as jurors. That will happen the day after the articles are presented, and Tuesday afternoon Republicans decided to delay that formality. The articles of impeachment could be presented as soon as Monday next week.
