Mayorkas impeachmen trial: What to expect in the Senate

Written by on April 16, 2024

Homeland Security Secretary Alejandro Mayorkas (R) speaks during a joint press conference with Guatemala’s President Bernardo Arevalo (not in frame) at the Culture Palace in Guatemala City, on March 21, 2024. (Johan Ordonez/AFP via Getty Images)

(WASHINGTON) — After voting in February to impeach Homeland Security Secretary Alejandro Mayorkas over his handling of the southern border, proceedings are expected to head to the next stage on Tuesday, when the articles of impeachment are transmitted to the Senate.

One thing is clear: This is not going to look like the impeachments we’ve seen in the last few years since a full-scale trial on the Senate floor is not likely, according to senators and leadership aides — despite what many House and Senate Republicans want.

The House voted to impeach Mayorkas on Feb. 13 by a vote of 214-213 over what Republicans claimed was his failure to enforce border laws amid what they call a “crisis” of high illegal immigration, allegations the secretary denied as “baseless.”

The DHS has blasted the impeachment efforts.

“Without a shred of evidence or legitimate Constitutional grounds, and despite bipartisan opposition, House Republicans have falsely smeared a dedicated public servant who has spent more than 20 years enforcing our laws and serving our country,” DHS spokesperson Mia Ehrenberg said in a statement. “Secretary Mayorkas and the Department of Homeland Security will continue working every day to keep Americans safe.”

The House had originally planned to send the articles of impeachment to the Senate for consideration last week, but Speaker Mike Johnson delayed transmission in part at the urging of Senate Republicans, who hoped a delay would give the Senate more time to prepare and debate the merits of having a trial, which many Republicans want.

Despite that delay, chances of a full-scale Senate trial remain slim. Exactly how the impeachment proceedings will play out is still unclear — the Senate has the option to either dismiss the trial outright or to require a committee to hear it instead.

Senate Democrats are largely expected to move to dismiss — or table — a trial, but that would require every Senate Democrat to vote together to accomplish that, and Republicans will object.

Here’s how the proceedings are expected to play out:

House managers walk articles of impeachment to Senate

The next formal steps are expected to get underway at 2:15 p.m. Tuesday.

On Monday, in what’s called an “engrossment ceremony,” Johnson signed the articles, calling on the Senate to hold a trial.

On Tuesday, the articles will be ceremoniously walked across the Capitol, led by the House clerk and the House sergeant-at-arms and followed by the House impeachment managers. The articles will go from the House chamber through the Capitol rotunda to the doors of the Senate.

The House impeachment managers are: Homeland Security Committee Chairman Mark Green, Foreign Affairs Committee Chairman Michael McCaul, Reps. Andy Biggs, Ben Cline, Andrew Garbarino, Michael Guest, Harriet Hageman, Clay Higgins, Laurel Lee, August Pfluger and Marjorie Taylor Greene.

The sergeant-at-arms will then announce the House impeachment managers on the floor of the Senate, who — once received — will be escorted to the well of the Senate, in front of the dais.

The articles will then be read aloud and, once done, the manager who presents them will say: “The managers request that the Senate take order for the trial, the managers now request leave to withdraw.”

Senate President Pro Tempore Patty Murray, D-Wash., will then announce the Senate will notify the House when it is ready to proceed with the trial.

Murray will preside over the Senate trial. Chief Justice John Roberts is not required to preside because it is not the trial of a sitting president.

The House managers will then make a ceremonial walk back to the House.

Senators sworn in as jurors

Senate Majority Leader Chuck Schumer said senators will be sworn in as jurors on Wednesday.

“After the House impeachment managers present the articles of impeachment to the Senate, Senators will be sworn in as jurors in the trial the next day,” Schumer’s office said in a statement.

Once the Senate is back in session for the trial, the oath is administered to the Senate as a group. The senators rise from their desks and and raise their right hands in unison.

Murray will then read the oath: “Do you solemnly swear that in all things appertaining to the trial of the impeachment of Alejandro Mayorkas, secretary of the Department of Homeland Security, now pending you will do impartial justice according to the constitutions and laws so help you God?”

Senators then come to the dais in groups of four to sign the oath book.

Then the sergeant-at-arms will make the proclamation: “Hear ye, hear ye, hear ye, all persons are commanded to keep silent on pain of imprisonment while the House of Representatives is exhibiting to the Senate of the United States an article of impeachment against Alejandro Mayorkas, secretary of the Department of Homeland Security.”

The Senate then begins voting on the organizational rules of the trial.

This is not likely to be a trial like the previous ones; it will not consume weeks of floor time. However, Senate leaders have been tight-lipped about their precise plans.

How proceedings could play out

One possibility is that the Senate could move very quickly to dispense with the trial. In that scenario, Senate Democrats can make a motion to dismiss — a move that would take only 51 votes.

If the vote reaches that threshold, the trial would be tabled and that would be the end of the matter. Democrats control 51 seats in the Senate, so if they stick together, they can dismiss the trial without any GOP support if they so choose.

While senators have the authority to vote to dismiss the trial, don’t expect most Republicans to agree.

In a letter to Schumer on March 28, Johnson, along with the impeachment managers, called upon Schumer to “fulfill your constitutional obligation to hold this trial.”

“To table articles of impeachment without ever hearing a single argument or reviewing a piece of evidence would be a violation of our constitutional order and an affront to the American people whom we all serve,” they wrote.

Another option is that the Senate votes to send the trial to be heard by a committee.

When someone who is not president of the United States faces trial, the Senate has within its rules the ability to have a special committee of senators hear the whole of the trial instead of the entire Senate.

The committee is called a “trial committee” and it is usually convened via an organizing resolution.

The Senate gets to set its own rules for a trial, so in most impeachment trials, there’s a debate over an “organizing resolution” — a proposed set of rules governing the trial that the Senate must vote to approve. If the Senate were to try to kick this trial to a committee, instructions to do so would likely be in this organizing resolution.

That resolution would be brought up, debated and voted on. If it were approved, the articles would then be kicked to the committee and sent off the Senate floor. Leadership would appoint members (usually six Democrats and six Republicans) to sit on that committee.

House managers would then present their impeachment case to the committee. Lawyers for Mayorkas would have time to present counter arguments.

The committee would make footage of its hearings available to the public and to senators. At the end of the trial, they would present a full report and recommendation to the whole of the Senate. The whole Senate would then vote on whether or not to convict.

The last impeachment to be heard by a trial committee with the impeachment of federal judge Thomas Porteous in 2010.

A final option is that the Senate holds a full-scale trial.

Sources have signaled to ABC News that there will not be an impeachment trial like the ones we’ve come to know from impeachment proceedings of former President Donald Trump.

Though it’s unlikely that we’d see a weekslong trial on the floor of the Senate, it’s still technically possible.

If it does, the Senate would adopt an organizing resolution and then managers would present their arguments.

It would take a two-thirds vote of the Senate to convict Mayorkas.

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