Rep. Marjorie Taylor Greene (R-Ga.) and Rep. Andrew Garbarino (R-Bayport)...

Rep. Marjorie Taylor Greene (R-Ga.) and Rep. Andrew Garbarino (R-Bayport) at a hearing with the House Committee on Homeland Security on Capitol Hill in January. Credit: Getty Images / Anna Moneymaker

WASHINGTON — A potential U.S. Senate trial on the impeachment of Homeland Security Secretary Alejandro Mayorkas could include a key role by Republican Rep. Andrew Garbarino, a House impeachment manager tasked with presenting the case against the Biden Cabinet member.

Garbarino, a second-term House member from Bayport, was tapped by House Speaker Mike Johnson (R-La.) to serve on the 11-member team after the GOP-led House voted to impeach Mayorkas 214-213 on Feb. 13.

With the Democrat-led Senate calling it a political stunt, and some Senate Republicans also raising concerns about impeaching a secretary over policy issues, Mayorkas' impeachment is likely to be dismissed or overturned by the chamber.

The Senate reconvenes on Monday and the House returns Wednesday, but leaders in both chambers have yet to indicate when impeachment proceedings would begin. They face the prospect of a partial government shutdown if a spending deal is not reached by Friday.

The narrow party-line vote to impeach Mayorkas over the Biden administration’s handling of the influx of migrants arriving at the U.S. southern border came after an earlier vote to impeach him last month failed to get enough Republican votes to pass.

Garbarino, in a statement to Newsday, said he supported impeachment because “The catastrophic consequences of the open border have been felt here in New York."

He cited the fentanyl crisis that has led to a growing number of overdose deaths, recent cases of migrants "engaging in violent crime — including the recent assault against two NYPD officers," and the "strain" on state resources to shelter migrants.

The team of impeachment managers also includes Reps. Marjorie Taylor Greene (R-Ga.), Michael Guest (R-Miss.), Mark Green (R-Tenn.), Michael McCaul (R-Tx.), Andy Biggs (R-Ariz.), Clay Higgins (R-La.), Ben Cline (R-Va.), August Pfluger (R-Tx.), Harriet Hageman (R-Wy.) and Laurel Lee (R-Fla.).

Senate Majority Leader Chuck Schumer (D-N.Y.) in a statement called the impeachment effort a “sham,” saying it was only done “for Speaker Johnson to further appease [former President] Donald Trump.”

Schumer and other lawmakers have noted that Mayorkas and a bipartisan group of senators were in the process of negotiating a border security deal that would have boosted funding at the border and increased requirements for asylum-seekers, but Johnson and House Republican leaders declared it “dead on arrival” as Trump publicly called on Republican lawmakers to reject the election-year deal.

Next steps 

Schumer’s office in a statement said the “House impeachment managers will present the articles of impeachment to the Senate following” their return from recess. Schumer’s office has not provided a date for the delivery of the articles as Congress faces a deadline to pass spending packages before government funding for different agencies runs out on Friday and March 8.

The Senate is likely to put any impeachment proceedings on hold until the spending packages are passed, according to a report by the online news outlet Punchbowl News.

Once the articles of impeachment are delivered to the Senate, senators will be sworn in as jurors in the trial the next day, with Senate President Pro-Tempore Patty Murray (D-Wa.) presiding over the proceedings, according to Schumer’s office.

Unlike a presidential impeachment where the chief justice of the Supreme Court presides over the hearing, the U.S. Constitution does not specify who should preside over a Cabinet member’s trial, leaving the appointment up to the Senate.

It’s unclear if Mayorkas’ Senate trial will move forward immediately. Senate Democrats could file a motion to dismiss the charges, which would require a simple-majority vote, or they could refer the matter to Senate committees which would further delay a trial.

Schumer has not publicly indicated whether he would support either of the options, but Sen. Tim Kaine (D-Va.) told Politico in a recent interview: “I bet the preference is going to be to spend as little time on it as possible so we can focus on” the spending packages and voting on a recently passed bipartisan House tax bill.

Garbarino called on the Senate to undergo a full trial, stating "the Senate has a responsibility to hear the evidence during a thorough trial and make an informed decision."

The charges

The two articles of impeachment filed against Mayorkas by the Homeland Security Committee argue that he “willfully and systematically” refused to enforce existing immigration laws and that he “breached the public trust” by asserting publicly that the southern border is secure.

Mayorkas, in an interview with CNN days after the impeachment vote, defended his record, pointing to the bipartisan negotiations on border security that were occurring in the Senate before the impeachment vote.

“I was very privileged and honored to sit with a bipartisan group of senators to fashion legislative fixes that are overdue now for decades,” Mayorkas said. “It is in fact what the Republicans insisted upon — the bipartisan group of senators delivered, the question that everyone is asking is, was a solution actually desired, or do people want the problem as a tool for politics?”

Legal questions

Constitutional law scholars have argued the impeachment charges against Mayorkas do not rise to the Constitution’s “high crimes and misdemeanors” threshold required for a conviction.

Michael Dorf, a constitutional law professor at Cornell University, said in an interview “it’s been accepted since the founding, that you don't impeach an officer of the government over policy disagreements.”

“This is unprecedented in that what they're charging him with is not violating some obligation, but under-enforcing the law, when every administration, at least going back to President Reagan and probably earlier than that, has had to under-enforce the immigration law, because Congress does not provide the resources to fully enforce all of the immigration laws it has passed,” Dorf said.

Michael Gerhardt, a constitutional law professor at the University of North Carolina who testified before Congress as an expert during the impeachment proceedings for Trump and former President Bill Clinton in 1998, told Newsday the House established “a dangerous precedent” by impeaching Mayorkas “because it lowers the bar to impeachment by turning it into a vehicle for complaining about the policies of a president whose reelection they hope to prevent.”

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