Top DHS lawyers call Mayorkas impeachment effort improper, unconstitutional

The Department of Homeland Security’s (DHS) top lawyers are urging lawmakers to avoid an “illegitimate, invalid, and dangerous” impeachment of Secretary Alejandro Mayorkas.

The letter, entered Tuesday into the record of the House Rules Committee as it forwarded the impeachment resolution to the House floor, attacks the GOP’s rationale for unseating Mayorkas.

“Passage of this Resolution by the House of Representatives would be unconstitutional. The effort to impeach Secretary Mayorkas represents a dramatic departure from over two centuries of established understanding and precedent about the meaning of the Impeachment Clause of the Constitution and the proper exercise of that extraordinary tool,” a trio of the DHS’s top lawyers wrote in the 38-page letter. 

“In addition to lacking any basis in the Constitution, the impeachment articles reflect a basic misrepresentation of key statutes governing immigration law.”

The articles of impeachment accuse Mayorkas of violating immigration law, primarily by failing to detain all migrants that enter the country — a standard that has never been met.

It also accuses Mayorkas of “breach of public trust.”  

Immigration law experts have expressed skepticism of the GOP claims, saying Mayorkas has carried out the Biden administration’s immigration policy and has not violated any laws. 

The DHS letter breaks that argument down in detail, arguing that “Secretary Mayorkas’s leadership has always followed the law in good faith, and any suggestion otherwise is false.” 

“At its core, the Article is nothing more than a simple list of criticisms of the policies of the current Administration. These assertions do not meet the Constitutional standard for impeachment. The Secretary has followed the law in good faith in each and every action that the Resolution cites as a purported ground for impeachment, whether related to asylum, detention, removals, parole processes, or any others. All of those decisions find ample support in existing provisions of the Immigration and Nationality Act,” the lawyers wrote in the letter.

“To the extent Congress wants to change the Administration’s policies, the Constitution prescribes a different path: passing legislation.”

The letter also levels criticism at the GOP’s breach of trust argument, calling it a “hodgepodge of claims.”

“That Article claims that the Secretary made false statements about ‘operational control’ or border security, that he inappropriately reversed Trump-era immigration policies, and that he failed to comply with unidentified Congressional subpoenas. These conclusory assertions are false, and the Resolution provides no support for them,” the DHS lawyers wrote.

“The Secretary has not made false statements about conditions at the border but rather transparently provided his opinions about border security. His reversal of certain earlier immigration policies is the result of a change of Administrations, not a breach of the public’s trust. And he has not failed to comply with subpoenas or other oversight. … It is the Committee, not the Secretary, that has departed from regular order by abandoning established standards and procedures that have characterized every relevant impeachment effort in this Nation’s history.”  

The letter comes as the House is expected to vote Tuesday on Mayorkas’s impeachment.

Republicans have little room for error because two House Republicans have said they will vote against impeachment. The GOP cannot afford another defection if Democrats are all present and vote against impeachment.