Senate Republicans outraged at Democrats’ quick move to kill the impeachment of Alejandro N. Mayorkas without a trial warn that the precedent set could give rise to a nightmare scenario for Democrats in the future.
It would go something like this: Democrats in control of the House move to impeach and remove an out-of-control Republican president. Republicans who lead the Senate label the charges woefully flawed and well below the “high crimes and misdemeanors” standard established in the Constitution. They dispose of the counts without so much as a hint of a trial.
While names weren’t being named, it was lost on absolutely no one on Capitol Hill that the alignment of a Democratic House, a Republican Senate and a Republican president is at least conceivable next year, with the White House possibly occupied by the already twice-impeached Donald J. Trump and both chambers potentially under new management. Republicans urged Democrats to pay heed.
Democrats’ decision to dismiss the impeachment charges without an airing of the case “means the next time a president is impeached by the House, that a majority in the Senate of the same political party as the president could just refuse to try the case,” said Senator John Cornyn, Republican of Texas and one of two men seeking to be the party leader in the next Congress.
Democrats say it was Republicans who were abusing the once-rare and deadly serious process of impeachment by using it to try to remove an administration official over a policy disagreement on immigration and border security. The real mistake, they argue, would have been to treat the case Republicans brought against the homeland security secretary as legitimate, rather than a thinly veiled attempt to amplify border security as a political issue and create chaos in the Senate.
“If we start cheapening impeachment, which is what they’ve done by letting a policy issue become impeachment, there will be impeachment all the time,” Senator Chuck Schumer, Democrat of New York and the majority leader, said in an interview. “It will allow the House to tie up the Senate.”
While the Mayorkas case is now history, the ramifications will live on as the impeachment process continues to become increasingly politicized and more frequent. The Senate functions on precedent — or what could also be called the standing Senate rule of what goes around comes around.
History has shown that once one party in the Senate does something that aggrieves the other, the other party eagerly returns the favor as soon as it gets the chance. When Democrats in 2013 ended the 60-vote filibuster threshold on most federal judges by establishing a new precedent, Republicans squawked — then lowered it for Supreme Court justices as well four years later when it suited their political aims, and they pushed the first of three justices onto the court.
“Everything is precedent around here, regardless of what the constitutional rules call for,” Mr. Cornyn noted. “Usually once we establish a bad precedent, we then amplify it subsequently.”
This being the Senate, some of those arguing loudest against dismissing the Mayorkas case were among the 45 Republicans who tried unsuccessfully to win dismissal of articles of impeachment brought against Mr. Trump in 2021 after the Jan. 6 assault on the Capitol. The Republicans who fought dismissal on Wednesday contended that it was warranted in 2021 because Mr. Trump was no longer president and was no longer subject to the jurisdiction of a Senate trial.
At the time, five Republicans joined Democrats in beating back the dismissal effort. On Wednesday, those remaining in the Senate objected to Democrats doing exactly what they had opposed three years ago.
“I think Democrats are making a real mistake that establishes a terrible precedent,” said Senator Susan Collins, Republican of Maine. She said at minimum, the Senate should have heard from both the House impeachment managers and counsel for Mr. Mayorkas.
“When it comes to something as serious as impeachment, precedent really counts,” she said. “Who knows who is going to be in charge next year as far as Congress is concerned — or the presidency, for that matter.”
Democrats said, however, that the case against the secretary was “bogus,” to use Mr. Schumer’s term, and that the truly dangerous precedent would be to reward far-right House members who pursued Mr. Mayorkas over policy disputes with a full-blown Senate trial.
“I’m not worried about the precedent of tabling the impeachment; I am more concerned about the precedent of a totally frivolous political stunt, exploiting impeachment as a weapon of destruction,” said Senator Richard Blumenthal, Democrat of Connecticut. “I think the precedent here is misusing impeachment.”
As for Mr. Trump, Democrats noted that Senate Republicans had two previous opportunities to convict him on impeachment charges and passed up both, so they considered it highly unlikely that a Republican-controlled Senate would act differently in the event of a theoretical second Trump presidency.
“I feel very strongly that we’re doing exactly the right thing,” said Mr. Schumer, who kept Democrats united to rule that the two counts did not meet the constitutional threshold for an impeachment proceeding. “Conversely, if we didn’t do it, and we allowed this to happen, it would just totally demean the impeachment process.”
Frustrated Republicans, as they sought to force some semblance of a trial, objected to the Democratic position. They said at least one part of the charges — the assertion by House Republicans that Mr. Mayorkas had lied to Congress in saying that the border was secure — merited review by the full Senate and should not be swept away in a bit of procedural sleight of hand.
(The Republican allegation that Mr. Mayorkas lied is based on testimony he gave in 2022 in which he said his department had “operational control” over the border. The secretary has said he was referring to the Border Patrol’s standard of being able to “detect, respond and interdict” breaches in high-priority areas, but Republicans have held him to a far stricter definition from a 2006 statute that says “operational control” is the absence of any unlawful entries into the country.)
“It’s a pretty damning record, and that’s why I think we ought to have a trial,” said Senator John Thune of South Dakota, the No. 2 Republican who is also seeking the top job next year. He argued that senators should have been allowed the opportunity to weigh the merits of the case and hear the evidence, hinting that Democrats might not be happy should the roles be reversed.
“The precedent being set of not doing it is one that obviously could be applied in the future,” he said.
