[Congressional Record Volume 170, Number 24 (Friday, February 9, 2024)]
[Extensions of Remarks]
[Pages E130-E132]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




IMPEACHING ALEJANDRO NICHOLAS MAYORKAS, SECRETARY OF HOMELAND SECURITY, 
                    FOR HIGH CRIMES AND MISDEMEANORS

                                 ______
                                 

                               speech of

                        HON. BENNIE G. THOMPSON

                             of mississippi

                    in the house of representatives

                       Tuesday, February 6, 2024

  Mr. THOMPSON of Mississippi. Mr. Speaker, extreme MAGA Republicans 
have engaged in a cynical and unserious attempt to impeach Homeland 
Security Secretary Mayorkas. Their report to accompany H. Res. 863 
resorted to sloppy misrepresentations in an attempt to justify this 
baseless, political stunt.
  For example, the report misquoted Professor Frank Bowman, who 
testified before the Committee on Homeland Security on January 10, 
2024. Professor Bowman testified that the Constitution did not support 
the impeachment of Secretary Mayorkas over mere policy differences. The 
majority report, however, twists a passage of Professor Bowman's book 
on impeachment and uses it out of context to suggest policy differences 
were grounds for impeachment.
  Republicans also tried to misrepresent Professor Bowman's writings 
during the hearing, but they did not afford Professor Bowman an 
opportunity to explain his work. I submitted clarifying questions to 
Professor Bowman to supplement the hearing record, but the majority did 
not transmit those questions to Professor Bowman before the legislative 
report was filed in the House.
  I include in the Record Professor Bowman's responses to my questions 
to make the professor's thoughts on impeachment over policy differences 
abundantly clear, since the Republican majority cannot be bothered to 
conduct a proper investigation with a complete record.

     Committee on Homeland Security, U.S. House of Representatives


                  Responses to Supplemental Questions

  Frank O. Bowman III, University of Missouri Curators' Distinguished 
Professor Emeritus, Floyd R. Gibson Missouri Endowed Professor Emeritus

    (Academic titles provided for identification purposes only. The 
opinions expressed herein are those of the author, do not reflect those 
 of any other person or entity, and are not endorsed by the University 
                             of Missouri.)

       Question #1 from Mr. Thompson: Republicans have portrayed 
     your previous academic writing as confirming their position 
     that mere policy differences may be a ground for impeachment. 
     In particular, that ``displeasure with administration 
     personnel and policy'' may be sufficient to warrant 
     impeachment. Is that correct?
       I have never written that mere policy differences would be 
     an adequate ground for impeachment. To the contrary, I join 
     with the consensus view of constitutional scholars that 
     ordinary policy differences are not a proper ground for 
     impeachment. Indeed, this general principle is particularly 
     applicable to a disagreement on policy between a presidential 
     administration and a political party controlling only one 
     house of Congress, and that by the very narrowest of margins.
       The quotation to which the question alludes, one mentioned 
     by Chairman Green and Rep. Bishop, occurs in the final 
     paragraph of Chapter 4 of the second edition of my book, High 
     Crimes & Misdemeanors: A History of Impeachment for the Age 
     of Trump (Cambridge Univ. Press 2023). Both congressmen take 
     the snippet of text they quote entirely out of context.
       In the referenced section of Chapter 4, I discuss the only 
     prior impeachment of a U.S. cabinet officer, President 
     Ulysses Grant's Secretary of War, William Belknap. Prior to 
     the quoted passage, I explained why no cabinet officer before 
     or after Belknap has been impeached. The primary, and 
     obvious, reason is that, as I wrote, any cabinet officer 
     ``whose behavior veered anywhere near an impeachable zone'' 
     was simply removed by the President. Which is what happened 
     to Belknap. He took a bribe. When President Grant found out, 
     he fired Belknap. But the House, controlled by Democrats for 
     the first time since the Civil War, impeached the Secretary 
     anyway as a means of politically damaging President Grant and 
     by extension the Republicans in the upcoming 1876 election.
       In the final paragraph of Chapter 4, I was, of course, not 
     saying that mere ``displeasure'' with either a person or a 
     policy is a constitutionally acceptable ground for 
     impeachment. Rather, when a subordinate official has actually 
     committed ``treason, bribery, or other high crimes and 
     misdemeanors''

[[Page E131]]

     (as Secretary of War Belknap incontestably did), Congress 
     might elect to proceed with impeachment to signal its 
     displeasure.
       Secretary Mayorkas has not committed any impeachable 
     offense. Impeaching a cabinet officer innocent of ``treason, 
     bribery, or other high crimes and misdemeanors'' to indicate 
     displeasure with administration policy or the officer's 
     administration of that policy would be a profoundly anti-
     constitutional act.
       Question #2 from Mr. Thompson: In the past, you have 
     written that impeachable ``high crimes and misdemeanors'' can 
     be interpreted to include ``serious executive misconduct, 
     including . . . betrayal of the nation's foreign policy 
     interests'' such as when a president subordinates the 
     nation's interests to foreign interests. Republican Rep. 
     Guest suggested that you have written in the past about 
     foreign policy differences as grounds for the first 
     impeachment of President Trump--what you describe as Trump's 
     ``rolling destruction of American foreign policy''--and that 
     your past writing contradicts your testimony at the January 
     10, 2024, hearing. Are foreign policy differences an 
     impeachable offense, and how do foreign policy differences 
     differ from ordinary policy differences?
       I have written that one of the accepted historical 
     categories of impeachable conduct, in both the pre-1787 
     United Kingdom and in the United States, has been ``betrayal 
     of the nation's foreign policy interests.'' However, in 
     saying this, I was obviously not saying that ordinary policy 
     differences between a presidential administration and the 
     opposing political party become impeachable simply because 
     the subject matter of the disagreement is foreign, rather 
     than domestic, policy.
       To the contrary, long precedent establishes that, in the 
     U.S. impeachment context, ``betrayal of the nation's foreign 
     policy interests'' has had certain identifying features.
       First, for impeachment purposes, a nation's ``foreign 
     policy interests'' are not merely the transient preferences 
     of a political party or faction. Rather, they are enduring 
     interests about which there is a broad societal consensus, 
     ideally one embodied in statutes, treaties, the practice of 
     multiple presidential administrations, and (where applicable) 
     the views of a nation's diplomats, foreign policy experts or 
     professionals.
       Second, the word ``betrayal'' implies, not merely changing 
     policy or adopting policy views contrary to one's political 
     adversaries, but subverting the national interest for 
     illegitimate, often personal, motives.
       British impeachments that illustrate these features include 
     the following.
       In 1667, after an expensive and unnecessary war with the 
     Dutch, the Earl of Clarendon was impeached in part for 
     seeking payments from France to the British crown to evade 
     parliamentary controls on royal finance.
       In 1678, the Earl of Danby was impeached for soliciting--on 
     behalf of the English King Charles II--a bribe from Louis XIV 
     of France in return for English neutrality in the Franco-
     Dutch War.
       Both Clarendon and Danby's solicitations not only undercut 
     longstanding British foreign policy objectives and subjected 
     the British monarch to undue foreign influence, but were a 
     bald attempt to avoid a significant parliamentary constraint 
     on royal overreach--the requirement that the Crown obtain 
     ``supplies'' (i.e., funding in addition to the monarch's 
     private wealth) through the legislature.
       More relevant to the present case are the American 
     impeachments of Senator William Blount in 1797-98 and of 
     President Donald Trump in 2020.
       Sen. William Blount: Blount, then a U.S. senator, concocted 
     a scheme to enrich himself by giving Great Britain control of 
     the territories of Louisiana and Florida. Blount's scheme was 
     obviously contrary to contemporary U.S. foreign policy 
     interests inasmuch as the American government and populace 
     wanted to expand into Louisiana and Florida, or at the very 
     least to prevent Great Britain from assuming control over 
     those territories. In addition, the articles of impeachment 
     against Blount charged him with violations of the Neutrality 
     Act of 1794, and also with violation of the Treaty of 
     Friendship, Limits, and Navigation between the United States 
     and Spain (because his scheme involved stirring up Native 
     American tribes to attack Spanish officials and interests).
       Not only was Blount's scheme undeniably contrary to U.S. 
     foreign policy interests, and to multiple treaty obligations, 
     but it was a ``betrayal'' in the most obvious sense. Blount 
     tried to sell out the interests of his country for personal 
     financial gain.
       Although Blount was acquitted by the Senate, the historical 
     consensus is that the verdict turned on the decision that 
     senators are not ``civil officers'' subject to the 
     impeachment remedy under Article II, Section 4 of the 
     Constitution.
       President Donald Trump:
       President Trump's first impeachment involved two articles, 
     the first charging that Trump committed ``high crimes and 
     misdemeanors'' in relation to his scheme to coerce the 
     government of Ukraine into announcing investigations into 
     Trump's likely presidential opponent, Joe Biden, and the 
     second charging obstruction of Congress. The first article 
     was captioned ``Abuse of Power,'' but as I have written, it 
     ``braided together three themes . . . corruption, damage to 
     foreign policy interests, and injury to the democratic 
     process. As the first article of impeachment summarized the 
     matter:
       ``President Trump abused the powers of the Presidency by 
     ignoring and injuring national security and other vital 
     national interests to obtain an improper personal political 
     benefit. He has also betrayed the Nation by abusing his high 
     office to enlist a foreign power in corrupting democratic 
     elections.''
       The ``national security and other vital national 
     interests'' alluded to in the article were the interest of 
     the United States in supporting, militarily and 
     diplomatically, a country threatened, and indeed physically 
     invaded, by Russia, a longstanding geopolitical opponent of 
     the United States, together with the interest of the United 
     States in preventing Russian territorial expansion up to the 
     borders of the countries of the NATO alliance.
       These objectives had been endorsed as national security 
     interests of the United States over multiple presidential 
     administrations through repeated bipartisan approval of 
     legislation authorizing military and security aid to Ukraine. 
     They were also endorsed by the entire diplomatic and national 
     security apparatus of the U.S government before and during 
     the Trump Administration itself. For example, when Trump's 
     White House Office of Management and Budget (OMB) placed a 
     hold on congressionally mandated aid to Ukraine in the July 
     2019 as part of President Trump's scheme to coerce Ukraine, 
     every relevant agency of Trump's own administration except 
     OMB questioned the hold and supported military assistance to 
     Ukraine as being in the national security interest of the 
     United States.
       Thus, Trump's first impeachment precisely matches the 
     template for ``betrayal of the nation's foreign policy 
     interests'' described above.
       First, the foreign policy interests of the United States in 
     that case were enduring interests embraced by multiple 
     presidential administrations, endorsed by the foreign policy 
     professionals of the executive branch, and manifested in 
     bipartisan legislation enacted by multiple U.S. congresses.
       Second, and critically, the ``betrayal'' of U.S. interests 
     consisted of subverting the national interest for 
     illegitimate personal motives--securing a personal political 
     advantage over a potential political rival. In Trump's case, 
     the betrayal was doubly severe because it amounted to an 
     effort to use presidential power to corrupt the democratic 
     electoral process.
       Secretary Mayorkas: Nothing alleged against Secretary 
     Mayorkas meets the traditional criteria for impeachment based 
     on ``betrayal of the nation's foreign policy interests.'' The 
     most that can be said against him is that he has executed the 
     policy preferences of President Joe Biden in relation to 
     immigration and border control issues and that the political 
     party in control of the House of Representatives disapproves 
     of those policy preferences. There is no indication that the 
     Secretary's actions, or indeed the Biden Administration's 
     policy choices, are contrary to established national foreign 
     policy interests. To the contrary, U.S. policy regarding 
     immigration and border control has varied from administration 
     to administration and congress to congress as the challenges, 
     needs, and preferences of the country have varied. More 
     importantly, there is absolutely no indication that Secretary 
     Mayorkas has taken any official action for corrupt or 
     illegitimate personal motives.
       To repeat the central point, ordinary policy differences 
     between a presidential administration and the opposing 
     political party do not become impeachable simply because the 
     subject matter of the disagreement is foreign, rather than 
     domestic, policy.
       Question #3 from Mr. Thompson: Rep. Crane suggested that 
     Secretary Mayorkas has betrayed the Nation, and that betrayal 
     of the nation would be sufficient to warrant impeachment. Are 
     you aware of any evidence that Secretary Mayorkas has 
     betrayed the United States? And Rep. Crane further suggested 
     that you said ``betrayal of the Nation'' is a potential 
     ground for impeachment, whereas you actually said ``betrayal 
     of the nation's foreign policy interests'' is a ground for 
     impeachment. What precisely did you mean?
       I did not say in my testimony to the Committee or elsewhere 
     that that ``betrayal of the nation'' is a ground for 
     impeachment. I have agreed with Charles Black that one decent 
     definition of ``high crimes and misdemeanors'' that covers 
     most cases is offenses ``which are extremely serious, which 
     in some way corrupt or subvert the political and governmental 
     process, and which are plainly wrong in themselves to a 
     person of honor, or to a good citizen, regardless of words on 
     the statute books.'' Nothing alleged against Secretary 
     Mayorkas meets this general definition of impeachable 
     conduct.
       I have also written that one specific category of 
     impeachable ``high crimes and misdemeanors'' is ``betrayal of 
     the nation's foreign policy interests.'' In my previous 
     answer, I explain what is meant by that phrase for purposes 
     of impeachment and I demonstrate why Secretary Mayorkas' 
     conduct does not fall within it.
       Finally, I am aware of no evidence that Secretary Mayorkas 
     has betrayed the nation. To the contrary, based on the facts 
     of which I am aware, Secretary Mayorkas appears to be a 
     capable, dedicated public servant trying as best he can to 
     carry out the policy priorities of the President of the 
     United States and to manage the perennial and intractable 
     problems related to immigration and control of the U.S. 
     southern border.

[[Page E132]]

  

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