The Mayorkas Impeachment Trial That Wasn't: How Senate Democrats Torched Precedent

Two months after the U.S. House of Representatives voted to impeach Department of Homeland Security Secretary Alejandro Mayorkas, and one day after the Articles of Impeachment were walked over to the Senate, the impeachment trial began. In truth, however, it was over before it started.

BREAKING: House Republicans Walk Two Articles of Impeachment Against Mayorkas to Senate

WATCH LIVE: Mayorkas Impeachment Trial Begins

Opening Statement

Majority Leader Chuck Schumer (D-NY) began the proceedings by seeking unanimous consent on several procedural matters.

Senate makes offer for 7 points of order and 60 minutes debate time on 1st article of impeachment. Then 1 pt of order and 60 minutes of debste on then Senate vote to dismiss the charges and then to adjourn the court of impeachment
— Chad Pergram (@ChadPergram) April 17, 2024

Objection

As the proceedings got underway, Senator Eric Schmitt (R-MO) then raised an objection and called for a full trial on the matter.

The American people deserve a full impeachment trial of Sec. Mayorkas.

I will not assist Senator Schumer in setting our Constitution ablaze and bulldozing 200 years of precedent. pic.twitter.com/gsWASCDwqe
— Senator Eric Schmitt (@SenEricSchmitt) April 17, 2024

Upon being recognized by Senate President Pro-Tem Patty Murray (D-WA), Schmitt stated:

To dismiss or table articles of impeachment against Secretary Mayorkas without a trial here today or in committee is an unprecedented move by Senator Schumer. Never before, in the history of our Republic, has the Senate dismissed or tabled articles of impeachment when the impeached individual was alive and did not resign.
As Senator Schumer said in 2020, 'A fair trial has witnesses. A fair trial has relevant documents as part of the record. A fair trial seeks truth — nothing more, nothing less. I will not assist Senator Schumer in setting our Constitution ablaze and bulldozing 200 years of precedent. Therefore, I object.

Some background on Schmitt's move:

Sen. Eric Schmitt scuttled a last-minute attempt by Senate leaders on a modest deal to structure the impeachment trial against Homeland Security Secretary Alejandro Mayorkas, sending the chamber toward a quick Democratic dismissal of the charges.
Most of the GOP conference preferred the pact, which would force Democrats to take several tough votes. But after Senate Republicans met on Wednesday afternoon to discuss the parameters of the agreement, which would have allowed several votes and debate, the Missouri Republican emerged unbowed to anything other than a full trial.
"I'm not going to participate in lighting the Constitution on fire and 200 years of precedent. Why would we negotiate away our constitutional duty?" he said. He also posted a video of Michael Corleone, the famous "Godfather" character, saying, "My offer is this: nothing."
...
Without a deal, Republicans won't get the votes on the motions to hold a trial or form a trial committee, said Minority Whip John Thune. Instead, Republicans will be able to force a few votes on points of order. Essentially, the proceedings will be essentially "unstructured," said Sen. Mike Braun (R-Ind.).

Procedural Wrangling

Schumer then raised a point of order challenging the constitutionality of Article I of the Impeachment, contending that it does not allege an impeachable offense and seeking to have it dismissed.

Article I charges a "willful and systemic refusal to comply with the law."

A vote was then held on Schumer's point of order. Pending the outcome of that vote, Senator Ted Cruz (R-TX) then moved to proceed to a closed session to allow for debate on Schumer's point of order, stating that Schumer's position is asking members of the Senate "to vote on political expediency," rather than via the process laid out in the Constitution. When Murray noted that they were not in debate, Cruz asked for a roll call vote on his motion. That vote failed 51-49 (along party lines).

Senator John Kennedy (R-LA) then made a motion to adjourn immediately until noon on Tuesday, April 30. That also resulted in a roll call vote, which, again, failed 51-49 along party lines.

Senate Minority Leader Mitch McConnell (R-KY) then rose to reiterate the purpose of an impeachment trial and moved to table Schumer's point of order. Resulting in a third roll call vote with the same vote breakdown.

Finally, a roll call vote was held on Schumer's point of order. Like the others, that vote resulted in a party-line split, with 51 Democrats voting in favor of the point of order and 48 Republicans voting against it, with Senator Lisa Murkowski (R-AK) voting "present." The result is that Article I of the impeachment was ruled unconstitutional and dismissed.

Schumer then moved for a similar point of order on Article II of the impeachment, which alleges "breach of the public trust."

Senator Mike Lee (R-UT) then rose and, in an impassioned speech, moved to proceed to closed session to allow for debate as to Article II. The roll call vote on Lee's motion also went down 51-49.

Lee was followed by Senator Rick Scott (R-FL), who moved, like Kennedy, to adjourn until noon on April 30. As with the vote on Kennedy's motion, Scott's motion was defeated in a 51-49 roll call vote.

Senator Roger Wicker (R-MI) then rose to make a parliamentary inquiry, asking, "Are we about to set precedent that the allegation of a felony is not a high crime and misdemeanor?" Wicker's inquiry was not taken up, but Kennedy then rose again to move to adjourn to May 1st. (At first, he said 2004, but then, amid chuckles, amended it to 2024). Kennedy then observed that a dismissal would be tantamount to taking the position that lying to Congress (a felony) is not a high crime and misdemeanor. Lo and behold, Kennedy's second motion was shot down 51-49.

Senator Roger Marshall (R-KS) then moved to adjourn until November 6, 2024, to "allow the American people" to have a say in it. As one might expect, this motion, too, was defeated 51-49.

GOP KS Sen Marshall: Madam President, I have a motion at the desk. Madam President before this body disrespects the Constitution any further before we endanger of a republic any more, before we harm the reputation of this body any more. I move to adjourn until 7 a.m. on November…
— Chad Pergram (@ChadPergram) April 17, 2024

Senator Dan Sullivan (R-AK) then rose to make a parliamentary inquiry — namely, whether there has been "a successfully invoked point of order to dispose of an Article of Impeachment prior to opening arguments by the House Managers." Murray confirmed that there has not been.

Kennedy then moved to go into executive session before establishing a "breathtaking precedent." Again, the motion failed 51-49.

Minority Whip John Thune (R-SD) then rose and moved to table Schumer's point of order (as to Article II). The motion went down 51-49.

Senator John Cornyn then made a parliamentary inquiry as to whether the actions taken Wednesday would amount to a precedent that would apply in all future impeachment hearings, including those as to a President of the United States. Murray confirmed that they would indeed establish impeachment precedent.

Finally, a vote was held on Schumer's second point of order (to dismiss Article II). That vote, like all the others, was a party-line split, with 51 Democrats voting in favor of it, 49 Republicans. The result? Article II of the impeachment was ruled unconstitutional and dismissed. Schumer then moved to adjourn, which, of course, passed...51-49.

And the impeachment of Alejandro Mayorkas went down without a trial.

Closing Argument

My takeaway from Wednesday afternoon's proceedings: I don't expect any of this happened without a coordinated Republican strategy ahead of time, but, reading between the lines, Schmitt's objection forced a straight up/down vote on dismissal of the articles without a trial, so it basically blows up the impeachment at the outset. And I suspect the point of that was to make the Senate Democrats look bad for not wanting to have a trial (or even make a pretense of it). In other words, the Republicans always knew this would never go anywhere due to the Senate majority, but rather than give the Democrats a chance to look like they played fair and gave the Republicans some say in it, they're just blowing it up upfront, so that they can point out that the Democrats are shredding the Constitution, or, as Schmitt put it, "setting our Constitution ablaze and bulldozing 200 years of precedent."

Further, I suspect the points made by Wicker and Kennedy regarding lying to Congress (a felony) not constituting a high crime and misdemeanor under the precedent the Democrats have now set by dismissing Article II of the impeachment without holding a trial will come back to bite the Democrats the next time there is a Republican in the White House with Republican appointees and Democrats in Congress look to wield the impeachment sword. Cornyn confirmed this with his final parliamentary inquiry. The Democrats have made their bed.