Impeachable High Crimes and Misdemeanors: Not Limited to Criminal Offenses

 SUMMARY

Impeachment is the proper response to gross misconduct in office that does serious harm to the constitutional order. That standard is satisfied when a civil officer of the government violates his oath of office by failing to carry out the duties of his office or by acting in contravention of those duties—including when the official suspends, as Homeland Security Secretary Alejandro Mayorkas has, the laws he is charged with enforcing. The standard for impeachment is satisfied when the official abuses the powers of his office, including through reckless misconduct that erodes U.S. sovereignty and threatens the lives and property of U.S. citizens, as Mayorkas has done. The standard is met any time a senior federal officer betrays the public trust by making false statements to Congress and by withholding information from and misleading the public about the nature and effects of his actions, as Mayorkas has repeatedly done.

KEY TAKEAWAYS

1. Public officials may be impeached for gross misconduct in office—whether or not they have committed an indictable crime.
2. DHS Secretary Alejandro Mayorkas should be impeached because he has violated his oath of office, abused the powers of his office, and betrayed the public trust.
3. Impeaching Mayorkas would be completely consistent with Congress’s historical understanding and exercise of its impeachment power.

he drumbeat is building for the U.S. House of Representatives to take up articles of impeachment against Homeland Security Secretary Alejandro Mayorkas.¹

Steven G. Bradbury, “Impeaching Mayorkas: The House’s Duty,” The Daily Signal, February 15, 2023, https://www.dailysignal.com/2023/02/15​/impeaching-mayorkas-the-houses-duty/. A recent Special Report by Heritage Foundation analysts²

Hans A. von Spakovsky, Lora Ries, and Steven G. Bradbury, “The Case for Impeachment of Alejandro Nicholas Mayorkas Secretary of Homeland Security,” Heritage Foundation Special Report No. 266, February 6, 2023, https://www.heritage.org/immigration/report/the-case-impeachment-alejandro​-nicholas-mayorkas-secretary-homeland-security. lays out in detail three grounds for impeachment:

1. Mayorkas has violated his oath of office by refusing to enforce and repeatedly violating the laws he is sworn to uphold.
2. He has abused the powers of his office through the deliberate pursuit of policies that have precipitated a humanitarian and border catastrophe, that undermine the sovereignty of the United States, and that put the safety and security of the American people at risk.
3. He has betrayed the public trust by making false statements to Congress and purposely misleading the public about the nature and effects of his policies.

That Special Report shows that Secretary Mayorkas has assumed the power to suspend key provisions of the country’s immigration laws and is illegally releasing hundreds of thousands of unscreened aliens into all parts of the U.S. in reckless disregard of the enormous harm done to America’s communities. Unknown numbers of violent criminals, gang members, drug traffickers, human traffickers, and potential terrorists are being released into the country, and all regions of the U.S. have become flooded with deadly fentanyl from Mexico that is pouring over the open, unsecured border that Secretary Mayorkas has recklessly created through his actions.³

See Hans A. von Spakovsky, Lora Ries, and Steven G. Bradbury, “Impeaching Mayorkas Is a Must, He Violated His Oath and Committed ‘High Crimes and Misdemeanors,’” FoxNews.com, February 13, 2023, https://www.foxnews.com/opinion/impeaching-mayorkas-is-must-he-violated-his-oath​-committed-high-crimes-misdemeanors (accessed February 27, 2023). Also see Heritage Foundation Oversight Project and Center for Border Security and Immigration, “Tracking Movement of Illegal Aliens from NGOs to Interior of USA,” public memorandum, December 5, 2022, https://thf_media.s3​.amazonaws.com/2022/BorderNGOMemo.pdf.

As the Members of the House of Representatives contemplate their constitutional duty and consider how best to respond to the national crisis created by Mayorkas, it is worth examining again the purposes of impeachment and the historical meaning of the phrase “high Crimes and Misdemeanors” as used in Article II, Section 4 of the U.S. Constitution.⁴

U.S. Constitution, Article II, § 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Emphasis added.)

That examination reveals a settled understanding—beyond dispute—that impeachable offenses are not limited to prosecutable crimes. Rather, the Framers of the Constitution understood, and the House of Representatives has consistently concluded, that the impeachment power reaches all manner of gross misconduct in office that does serious harm to the U.S. political system or the U.S. constitutional order. The actions, policies, and statements of Secretary Mayorkas easily meet that standard.⁵

By Steven Bradbury, Distinguished Fellow, Executive Vice President’s Office

Steven G. Bradbury is a Distinguished Fellow in the Executive Vice President’s office at The Heritage Foundation.

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