Senate Democrats' 'constitutional authority' overturning Mayorka impeachment trial questioned by experts

Constitutional law experts are examining the implications of the precedent set by Senate Democrats on Wednesday, when they quashed the impeachment trial of Department of Homeland Security Secretary Alejandro Mayorkas, effectively dismissing it.

After the Senate ruled both articles of impeachment unconstitutional, the upper chamber adjourned, dashing any hopes of a trial on Mayorkas' alleged crimes. This was historically significant because an impeachment trial had never been dismissed, filed, or abandoned without the accused official first leaving their role in some way.

“The Senate has no constitutional authority to rule that articles approved by the House do not contain impeachable offenses,” explained Andrew McCarthy, former chief assistant U.S. attorney in the Southern District of New York and senior fellow at the National Review Institute. .

Senate sets aside two articles of impeachment against Biden's border chief

Republican Senators, Chuck Schumer, DHS Secretary Mayorkas

Constitutional experts question the constitutionality of Senate Majority Leader Chuck Schumer, top box, and Senate Democrats' move to overturn articles of impeachment against DHS Secretary Alejandro Mayorkas to which Republicans fiercely opposed. (Getty Images)

The sole authority to determine impeachable offenses rests with the House, McCarthy noted. This means that neither the Senate nor a court would have the right to undermine the House's ability to make such decisions.

Senate Majority Leader Chuck Schumer, D-N.Y., moved two motions of order before the impeachment court, ruling both articles of impeachment unconstitutional, which were adopted by the Democratic majority.

“It essentially negates the important role of the House in the impeachment process,” McCarthy said.

Alternatively, the Senate would have had every right to “hold a trial and ultimately acquit Mayorkas of the charges,” he added.

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Alejandro Mayorkas, Chuck Schumer, Ted Cruz, Roger Marshall, Ron Johnson

Articles of impeachment against DHS Secretary Alejandro Mayorkas were delivered to Senate Majority Leader Chuck Schumer on Tuesday. (Getty Images)

The brief impeachment trial proceedings revealed that “another of our constitutional norms is being undermined,” said Randy Barnett, a renowned legal scholar and professor of constitutional law at the University of California Law Center. Georgetown.

However, Alan Dershowitz, a prominent constitutional scholar and professor emeritus of law at Harvard Law School, asserted, “No constitutional standard for impeachment is imposed.”

He further explained that “the dismissal is appropriate.”


Alan Dershowitz Jeffrey Epstein

Alan Dershowitz said Democrats were right to lay off workers. (Lior Mizrahi)

McCarthy warned that “Democrats will end up regretting this.” He explained that in the event Democrats take the majority in the House and Republicans the Senate, “Democrats will be undermined by the precedent they have set, especially if Donald Trump is elected president again.”

Democrats would likely seek to impeach former President Trump again if he is elected in November, McCarthy said, and “they have now given Republicans precedent to allow the Senate to ignore the House.”

Barnett asserted that impeachment is “ultimately a political power” and therefore its political use is expected. However, he suggested that “the political nature of impeachment” is exactly what “requires the House to have the opportunity to present its case to both the Senate and the electorate in a public trial.” This was prevented in the Senate.


Andrew McCarthy, former Assistant U.S. Attorney for the Southern District of New York, speaks during a House Intelligence Committee hearing on Capitol Hill in Washington, DC, U.S., Wednesday, June 12, 2019. Photographer: Anna Moneymaker/ Bloomberg

Andrew McCarthy said the Senate had no right to overturn the House's decision. (Anna Moneymaker/Bloomberg)

“The only reason Republicans impeached Mayorkas was to get a high-profile hearing that would focus public attention on Biden's border crisis,” added McCarthy, who noted that the House understood that it would not see never conviction or dismissal.

“The Senate Democrats’ decision denies this public hearing,” he said. For this, the Democrats “will take a political blow,” he continued.


However, McCarthy described that Senate Democrats made a political calculation, ultimately determining that “it would be better to be criticized for not holding a trial than to hold a trial,” placing President Biden's border policies to the forefront and Democratic senators having officially acquitted Mayorkas. .

That, he said, would make it appear that Democrats are “endorsing Biden’s non-enforcement policies.”


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