COMPASS: Senate sidesteps Mayorkas impeachment

April 9th, 2024

Good afternoon from Capitol Hill.

Both the House and Senate return to DC this week after a two week recess – accompanied by a full solar eclipse on Monday. A portent? No one knows. But if you feel like we’re all hurtling directly into the sun, you’re not alone.

On deck this week: the impeachment of DHS Secretary Alejandro Mayorkas moves to its Senate phase, and the House takes up the hotly contested issue of the federal government’s surveillance powers with FISA reform.

First, the Senate. The House impeached Mayorkas back in February for high crimes and misdemeanors resulting in an unprecedented and out-of-control crisis at the southern border. It is anticipated that on Wednesday, the House’s impeachment managers will walk the articles over to the Senate. Articles of impeachment carry extremely high precedence in the Senate, meaning as soon as the Senate receives them, all other action stops and the Senate must consider them. Senators will be sworn in as jurors, and the Senate transforms into the court of impeachment.

However, it appears that Democratic Majority Leader Chuck Schumer intends to bypass both the Senate’s rules and customs regarding impeachment and, rather than hold a trial, immediately move to table the impeachment articles. A “tabling” motion, in parliamentary practice, is a motion to permanently set aside or kill a pending question. It is a non-debatable motion considered at a simple majority threshold in the Senate, thus requiring only 51 votes (assuming 100 senators vote). 

Such a move is wildly out of step with the Constitution’s requirements and Senate procedure and practice, as Senators Mike Lee and Ted Cruz write in the Wall Street Journal

The Constitution, Senate rules and precedent are clear: The Senate has an obligation to vote on articles of impeachment. In the nation’s history, there have been 21 instances in which the House has sent articles of impeachment to the Senate. In three of those cases, the official who was impeached had left office, so the Senate didn’t proceed. In the other 18 cases—including Donald Trump’s second impeachment, which the House delivered after his term ended—the Senate conducted a trial and senators ultimately voted guilty or not guilty. That’s the process demanded by the Constitution and clearly laid out in the Senate rules.

As the senators conclude, it is obvious why Democrats would prefer to take this norm-shattering step: they want to prevent the House impeachment managers from presenting the evidence of willful neglect and intentional sidestepping of laws governing the management of the border. “[Schumer] also wants to insulate Democrats from having to vote guilty or not guilty,” the senators write.

Debate in the House this week does not promise to be any less fraught. Republican disagreement about FISA reform has bedeviled the chamber since February, when Speaker Mike Johnson previously pulled consideration of the issue.

There is an intra-party dispute between Republicans on the Intelligence Committee, led by Rep. Mike Turner, and Republicans on the House Judiciary Committee, led by Rep. Jim Jordan, which is focused on the scope of reforms that should be considered. Two major issues remain:

  1. Should the federal government be allowed to purchase data on Americans from private companies who collect it, which does not require a warrant?; and 
  1. Should the federal government be required to get a warrant before querying data on U.S. citizens caught up in federal surveillance?

Rep. Turner opposes both of these reforms, which are being pushed by House Freedom Caucus and Judiciary Committee members Rep. Andy Biggs and Rep. Warren Davidson. At the time of this writing, neither issue is dealt with in the base text of the bill, and it seems that only the second will receive an amendment vote.

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One More Thing…

CPI Academy is hosting Theo Wold on April 18 for a lecture entitled “The Heart Of An American Empire.” He is also the first speaker in our new Off The Record series, designed to feature voices moving the debate in D.C. More details and RSVP link here.