[Congressional Record Volume 170, Number 67 (Wednesday, April 17, 2024)]
[Senate]
[Pages S2807-S2822]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LEGISLATIVE SESSION
______
REFORMING INTELLIGENCE AND SECURING AMERICA ACT--Motion to Proceed--
Continued
The PRESIDENT pro tempore. The majority leader.
Mr. SCHUMER. For the information of Members, there are no further
votes today. I remind all Members that we have very serious business
ahead of us in the next few days, and we will keep you informed as to
schedule as things can get scheduled.
The PRESIDENT pro tempore. The Republican leader is recognized.
Mayorkas Impeachment
Mr. McCONNELL. Madam President, we set a very unfortunate precedent
here. This means the Senate can ignore, in effect, the House's
impeachment. It doesn't make any difference whether our friends on the
other side thought he should have been impeached or not. He was.
And by doing what we just did, we have, in effect, ignored the
directions of the House, which were to have a trial. We had no
evidence, no procedure.
This is a day that is not a proud day in the history of the Senate.
(Applause.)
The PRESIDENT pro tempore. The Senator from Utah.
Mr. LEE. Madam President, I ask unanimous consent to enter into a
colloquy with my Republican colleagues.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. LEE. Madam President, what we witnessed today is truly historic.
This has never occurred. Nothing like this has ever occurred.
Under article I, section 3, clause 6, we have been given a duty. We
have been given the sole exclusive power to try all impeachments--try
all impeachments--not some of them, not just those with which we happen
to agree, not just those we are happy that the House of Representatives
undertook to prosecute, but all.
The word ``try'' is also significant. It refers to the word
``trial.'' It is the same word. It is a proceeding in which the law and
the facts are presented to finders of fact--in front of judges--in
order to reach an ultimate disposition. In a criminal proceeding, it
would be an ultimate disposition culminating in a verdict of guilty or
not guilty.
We were precluded from doing that job today. We were precluded from
doing so in a way that is not only ahistoric and unprecedented but
counterconstitutional. Nothing could be further from the plain
structure, text, and history of the Constitution than that.
Let's look at the arguments that we would have heard, that we could
have heard, that we should have heard today had things unfolded as they
were supposed to, had things unfolded in a manner consistent with the
oath that we took first when we were sworn in as U.S. Senators. We were
all required to take the same oath to the Constitution when we did
that.
(Ms. BUTLER assumed the Chair.)
But also the oath that we took just a few hours ago in this very
Chamber in this very case to decide this case impartially.
What would we have heard? Well, first and foremost, regardless of
what you think about what a trial consists of or how different people
might cleverly define the term, a trial will always, at a minimum,
involve lawyers, involve lawyers. Unless the person is proceeding pro
se, you will always have lawyers there. At least one side will always
be represented by lawyers in 99.9 percent of all cases. Both sides
will. You will hear from lawyers.
[[Page S2808]]
We didn't hear that today. We didn't hear from the committee of
individuals appointed by the House of Representatives to be the House
impeachment managers or prosecutors. What else would you expect to
hear? Well, you would hear evidence. Evidence would be brought in.
Sometimes trials in the Senate involve bringing in evidence in a
documentary form.
Other times, you might have witnesses. We didn't have any witnesses,
we didn't have any documentary evidence, other than that which was
charged.
So let's talk about what was charged and what evidence we could have,
would have, and should have heard had we done our job today.
Well, the accusations in this impeachment trial, they fit into two
categories. Category one, Senate article I of the Articles of
Impeachment, article I alleges that Secretary Mayorkas repeatedly,
defiantly did the exact opposite of what Federal law requires; namely,
that under myriad circumstances, eight or nine different statutory
provisions that he violated, he was required to detain people whom he
did not detain.
But it is not just that he didn't do what the law required; he did
the exact opposite of that. Instead of holding them until such time as
they could be removed or alternatively adjudicated to have the status,
whether in the context of immigration parole or asylum or otherwise, he
just released them and, in many cases, gave them work permits.
We would have heard evidence about the fact that memoranda issued by
Secretary Mayorkas within the Department of Homeland Security didn't
just tolerate this result; they instructed this result. We would have
heard evidence about the fact that at the outset of the Biden
administration, Secretary Mayorkas, when asked what he would tell those
traveling through the caravans, those paying many thousands of dollars
per head--in some cases tens of thousands of dollars per head--to
international drug cartels. Instead of telling them, Don't do it, he
said, Maybe don't do it yet; give us a few weeks before we are ready to
receive you--showing intention, aforethought to facilitate the
violation of Federal law.
We would have heard evidence about how he instructed his own
department to violate those rules. We would have heard evidence about
how directly contrary to Federal law those things are and contrary to
his own oath and his own duty.
Now, as to article I, the Senate chose to dispose of this today by
doing something it has never done, in any context anywhere close to
this, with a point of order that said as follows.
The majority leader stood up, defiantly refusing to have the Senate
perform its obligations and called a point of order. He said: I raise a
point of order that impeachment article I does not allege conduct that
rises to the level of a high crime or misdemeanor as required under
article II, section 4 of the United States Constitution and is,
therefore, unconstitutional.
Now, let's talk about that for a minute. Now, had we been permitted
to have a trial--alternatively, had we been permitted to go into
executive session; alternatively, had we been permitted to go into
closed session, as several of us moved today--we would have been able
to hear arguments about this, about how wrong this is, because that is
what you do when you have a trial: You hear evidence; you hear
arguments from lawyers; and when someone makes a legal argument, as
Majority Leader Schumer just did, you can consider their implications
and, most importantly, consider whether or not the argument is right.
Because when we are sworn in, in a trial of impeachment, our job is
to serve as both finders of fact and adjudicators of law relevant to
this case. We were denied that opportunity.
So while we are exploring what we would have heard had we gone to
trial, had we done our job, let's also explore what would have happened
in a real trial had somebody made an actual motion and we had been
permitted to do our job.
But, look, first and foremost, this is patently absurd to argue that
a willful refusal to obey the law that one has a sworn solemn
obligation to perform is somehow not impeachable.
We don't have to look too far in order to find support for the
conclusion that this is an illegitimate, unwarranted, unsubstantiated
claim--one that is directly contrary to law.
In fact, we don't have to look further than President Biden's own
lawyer. The Solicitor General of the United States, who holds a special
position within our Federal Government, performs functions that many
people mistakenly associate with the Attorney General. But it is, in
fact, the Solicitor General who is the United States Government's chief
appellate advocate and chief advocate before all proceedings at the
U.S. Supreme Court.
There was an exchange in a case argued last term in the Supreme Court
of the United States called United States v. Texas. In that case, the
Supreme Court heard arguments from the State of Texas about whether or
not this administration's approach toward these same provisions of law
is acceptable, whether or not they could challenge them.
Now, unfortunately, the Supreme Court reached a conclusion--a
conclusion with which I strongly disagree. And the Supreme Court
concluded, ultimately, that the State of Texas lacks standing to
challenge Federal policy--Federal policy along the lines of what we are
discussing today, notwithstanding the fact that it is conduct that
inflicts substantial harm on the State of Texas and its residents.
But the important part that we should have been able to argue here
today is the exchange that occurred at oral argument between Justice
Kavanaugh and Elizabeth Prelogar, Solicitor General of the United
States, in her capacity as Solicitor General as the Biden
administration's chief appellate advocate and chief advocate before the
United States Supreme Court.
Justice Kavanaugh asked her a number of questions at oral argument,
and on page 50 of that argument transcript some of that discussion
ensues. He asks the following:
[I]f a new administration comes in and says we're not going
to enforce the environmental laws, we're not going to enforce
the labor laws, your position, I believe, is no state and no
individual and no business would have standing to challenge a
decision to, as a blanket matter, just not enforce those
laws, is that correct?
Here is what Solicitor General Prelogar says:
That's correct under this Court's precedent, but the
framers intended political checks in that circumstance. You
know, if--if an administration did something that extreme and
said we're just not going to enforce the law at all, then the
President would be held to account by the voters, and
Congress has tools at its disposal as well.
So this argument continues, it continues on to the next page, in
which Justice Kavanaugh says:
What are the exact tools that Congress has to make sure
that the laws are enforced . . .
And Solicitor General Prelogar answers:
Well, I think that Congress obviously has the power of the
purse.
And she goes on to explain how this is relevant. And then this goes
on until we get to page 53.
And then at page 53, Justice Kavanaugh jumps back in and says:
I think your position is, instead of judicial review,
Congress has to resort to shutting down the government or
impeachment or dramatic steps--
of some sort or another.
Solicitor General Prelogar responds by saying:
Well, I think that if those dramatic steps would be
warranted, it would be in the face of a dramatic abdication
of statutory responsibility by the executive.
She just acknowledged exactly what has happened here, and she
acknowledged that is exactly the moment at which the impeachment power
becomes very relevant.
Lest there be any doubt on that, this stuff was settled, not just in
1789 when we adopted the Constitution and when the Framers used the
language that they did, but remember, the Framers were not operating in
a vacuum. They were not writing on a blank slate. They were
incorporating legal terminology that had been in use for centuries.
In fact, Justice Story in his treatise on the Constitution discusses
this very kind of thing and explains in section 798 of his famed
treatise, written not so very long after the Constitution itself was
written, that we got this stuff from England, that the British knew
what impeachment meant, and they understood what would constitute a
high crime or misdemeanor.
[[Page S2809]]
In section 798, Justice Story acknowledges that there was precedent,
there was an understanding at the time of the founding that recognized
that you would have an impeachable offense if, among other things, a
Lord Admiral would have neglected the safeguard of the sea.
They didn't have a Homeland Security Secretary then, not in America,
not in Britain. But this is really analogous. This is the exact same
thing. Somebody who had a duty to do a certain thing under the law and
defiantly refused to do so.
Those are arguments we could have and would have and should have
heard today had we had an actual trial, had we been permitted even to
go into executive session, or even go into closed session.
Why closed session? We didn't want to have to do it in closed
session. But, you see, the standing rules of impeachment in this body
preclude us from having this very kind of debate.
So when Majority Leader Schumer made this argument, to the great
shock and surprise of all of us, we wanted to warn the body and have
this debate. He wouldn't let us do that. The Democrats voted us down.
So that is article I in a nutshell.
Article II of the Articles of Impeachment, what do those get to?
Well, those are interesting, because those deal with false statements--
knowingly false statements repeatedly made by Secretary Alejandro
Mayorkas to Congress--to Congress as it is performing its oversight
responsibilities.
He lied to Congress according to the allegations of the Articles of
Impeachment in article II.
To my great shock--look, he was dead wrong as to article I, but if he
was dead wrong as to article I, he was deader than a doornail--whatever
that means--ten times more dead as a doornail as to article II than he
was to article I.
Why is that? Well, because they allege in article II that Secretary
Mayorkas knowingly made false statements. Knowingly making false
statements is a felony offense. It is punishable as a crime, as a
felony Federal offense under, among other things, 18 USC section 1001.
It is routinely charged, prosecuted, and is the basis for lots of
convictions for a felony offense. You can go to prison for a very long
period of time for that.
Now, for Chuck Schumer to argue--
Mr. KENNEDY. Will the Senator yield for a question?
Mr. LEE. Yes.
Mr. KENNEDY. I just want to be able to be sure I understand, Senator.
I asked Senator Lee if he would yield to a question.
I thought I heard Senator Schumer argue today that lying to the U.S.
Congress was not a high crime or misdemeanor and, therefore, could not
be the basis for an Article of Impeachment.
Did I hear that correctly?
Mr. LEE. That is exactly what he said. That is exactly what he said
when he made this motion, because he stood up and he said: I raise a
point of order that impeachment article II does not allege conduct that
rises to a level of high crime or misdemeanor.
Mr. KENNEDY. So even though lying to the U.S. Congress is a felony
under the precedent that the majority leader and our Democratic
colleagues established, it is not a high crime or misdemeanor? Is that
what we did?
Mr. LEE. That is precisely what the precedent established today
stands for. That is--we have effectively--by this vote that the
Democrats forced through, not even allowing us to debate this--and this
is why I raised a point of order--or this is why I made a motion that
we go into closed session to discuss this, because we have now set a
precedent that effectively--very arguably effectively immunizes from
impeachment making a false statement to Congress.
Mr. KENNEDY. Well, may I ask one more?
Mr. LEE. Yes, please.
Mr. KENNEDY. Well, I am trying to follow the Senate majority leader's
logic. What do you have to do to get impeached now? I mean, a felony is
not sufficient. What is above a felony?
Mr. LEE. Well, let's see, obviously, spreading what they deem
misinformation on the internet might be a felony. I suppose at some
point--
Mr. KENNEDY. But it takes, as I understand it, Senator--you are a
legal scholar--it takes more than a felony now.
Mr. LEE. A high crime or misdemeanor.
Mr. KENNEDY. Yeah.
Mr. LEE. It takes more than a high crime or misdemeanor.
Mr. KENNEDY. Who is on first? What is on second? I don't understand
any of this, and I am very, very worried and would like your thoughts
or others' thoughts about the precedent that our Democratic colleagues,
in their haste to sweep this under the rug, may have established.
Ms. LUMMIS. Will the gentleman from Louisiana yield for an adjunct
question to his question?
Mr. KENNEDY. With pleasure.
Ms. LUMMIS. So the law says that lying to Congress is a felony. Since
we are no longer using impeachment as a means to address someone who is
lying to Congress, how does Congress prosecute or address someone who
deliberately lies to Congress now that the Senate has swept away,
through this precedential action today, the opportunity to use
impeachment for that purpose?
Thank you.
Mr. LEE. I would love to respond to that point briefly, if I could,
please. What we have done is to effectively immunize this against
impeachability--immunize making false statements.
And going back to the original question, I don't know. Maybe
aggravated, first-degree murder with heinous, atrocious, and cruel
conduct as aggravators--maybe that is still a high crime or
misdemeanor. That remains to be seen.
But keep in mind, particularly with the fact that they already set
aside article I--and they have already said that that is out of bounds,
as well, for impeachability. The Supreme Court has said pretty much
nobody has standing to address that. What are we left with?
And getting back to the question from Senator Lummis, this is a
phenomenally dangerous precedent to have set here, specifically with
regard to false statements, because what does that do to our oversight
hearings, where we rely, routinely, on testimony provided under oath by
Cabinet Secretaries and other administration officials? What does that
do? What incentive structure does that create? What perverse incentives
does that create for them to lie?
Mr. GRAHAM. Would the Senator yield?
Mr. LEE. Yes.
Mr. GRAHAM. Are you aware--here is the question: Are you aware of the
fact that President Clinton was impeached? And one of the charges
against him was lying under oath in a civil lawsuit. Are you aware of
that?
Mr. LEE. Yes.
Mr. GRAHAM. OK. So you can be impeached for lying under oath in a
civil lawsuit, but apparently you can't be impeached for lying to
Congress about how you do your job.
So here is what I--I will give Senator Schumer the benefit of the
doubt, Senator Kennedy. He is saying that the fact pattern here
apparently doesn't rise to the level of high crime or misdemeanor; that
it is a policy disagreement. We have taken a policy disagreement in the
House and tried to turn it into impeachment.
Well, here is a question for you, Senator Lee. Are you aware of the
fact that 2 days ago--2 days ago--Secretary Mayorkas was asked about
the parole of the man alleged to have killed Laken Riley, Mr. Ibarra:
Why was he paroled and how was he paroled?
Under the parole statute, 212(d)(5), there are two ways parole can be
granted: unique humanitarian need circumstances. Your mother is dying.
Something is going on bad. You need to get into the country on a
temporary basis. Or a special benefit to the United States--that means
you are a witness in, probably, a cartel trial. Those are the only two
reasons you can be paroled.
And 2 days ago--no, yesterday--Secretary Mayorkas said he did not
know why Mr. Ibarra was paroled. Which one of the two was it? This was
a question from Congressman Bishop. He said: I didn't know.
At the same time he said, I didn't know, I had the file, and it says:
Subject was paroled due to detention capacity at the Central Processing
Center in El Paso, TX. In the file, he was
[[Page S2810]]
paroled because they didn't have any space for him.
Senator Schumer, this is illegal. The Secretary of Homeland Security
cannot just add a condition to the statute. The statute doesn't allow
you to give parole because you are full. And the reason this man was
given parole is not because of the statutory requirements, but because
we had run out of space, because we have got more illegal immigrants
than we can handle.
And the rest is history. He gets paroled. He goes to New York. He
gets convicted of a crime. He goes to Georgia, and he is accused of
murdering this lady.
It seems to me that would be something we should argue over, as to
whether or not you should lose your job because you have got a
statutory requirement limiting your authority to parole people, and in
your own file, exhibit A, you paroled him because the place was full.
This happened 2 days ago. So this gives kangaroo courts a bad name.
This is a frigging joke.
We have a nation under siege. Madam President, 1.9 million people
have been paroled. Are you telling me they do an individual analysis on
all the people?
In November 2023, I asked him: Secretary Mayorkas, do you do a case-
by-case analysis?
Senator, we comply with the law.
So you are telling me that for all of the 240,000--the ones in front
of us--you determined that they meet the criteria of urgent
humanitarian need or significant public benefit?
And he said: Yes.
This was in November, under oath, to me when I questioned: I don't
believe you. I don't believe you are doing an individual analysis on
this stuff. You are doing blanket parole, and you are paper-whipping
this stuff.
It turns out he gave false testimony to the Congress. Whether he lied
or he just doesn't know what he is doing, I don't know. You should be
impeached either way. If you don't know what you are doing, you should
be kicked out because you don't know what you are doing.
But the man that we are talking about is the one charged with
murdering this young lady who was going on a jog. If that is not
important to the American people--to find out how that happened and
should somebody be held responsible--what the hell is?
You can talk about why we impeached Trump and Clinton? Was it
worthwhile? Did it matter? Was it all political?
You cannot say this is not important. To say that how he is doing his
job is not important to the American people--tell that to the Riley
family. This is not an academic debate.
The policies of this administration being carried out by Secretary
Mayorkas are illegal. The man charged with killing Laken Riley was
illegally released into this country by DHS. That should be something
we argue about in the Senate, as to whether or not you keep your job.
It has been swept under the rug.
There will be an election in November. This is the only chance you
have to get this right, to the American people. We had a chance today
to hold somebody accountable, finally, for all the rape and the murder
and the drugs. The largest loss of life in America is fentanyl coming
through the border, for young people. How many more people have to die,
be raped or murdered before somebody is held accountable?
We had a chance here, and our Democratic friends swept it under the
rug because they are more concerned about the November election than
protecting the American people, and this is a sad day for the Senate.
Mr. LEE. Who wouldn't be offended by the use of the term ``kangaroo
court.'' In fact, the entire marsupial world will be offended by this.
Mr. MARSHALL. If the gentleman will yield.
Mr. LEE. Yes.
Mr. MARSHALL. It certainly seems to me that, today, 51 of our friends
across the aisle voted to not have a trial. Make note of this: that
every person that voted to end that trial was a vote for an open
border. It was a vote to tell Laken Riley's family that the life of
their daughter didn't matter. It was a vote to tell the 250,000
families that lost a loved one to fentanyl: It doesn't matter.
But what struck me, as the clock struck midnight here and we lost
that vote, is I feel like the Senate was gutted, that we lost part of
our powers.
You know, in high school we were taught--in high school government,
we talked about checks and balances. And one of the checks and balances
that the legislative branch had on the executive branch was this
impeachment process.
And I want to ask my colleague from Texas: Why do I feel like it has
just been gutted right now--like the entire Senate--that this body has
been gutted of a power that we are never going to get back, that
impeachment going forward may mean nothing. Am I wrong?
Mr. CRUZ. I am sorry to say that my friend from Kansas is not wrong.
In the 237 years of our Nation's history, I don't know that there has
been a more shameful day in the U.S. Senate than today.
What we just witnessed was a travesty. It was a travesty to the U.S.
Constitution, and it was a travesty to the American people. And it is
important to understand why the Democrats did what they did.
We are here on the Senate floor right now, but I want the record to
reflect that I am going to do a very accurate count of the number of
Democrats who are with us. That would be zero, other than the Presiding
Officer, and somebody has to preside. Not a single Democrat Senator
chose to come to this floor and listen to one word of evidence.
When it comes to the Constitution, the Democrats concluded that Joe
Biden and Alejandro Mayorkas defying Federal law, ignoring the text of
the statute, deliberately releasing criminal illegal aliens over and
over and over again--that is just hunky-dory. You can't impeach him for
that. Every Democrat just voted.
By the way, every Cabinet member--guess what--you have just been
given a blank slate. Ignore the law. When Democrats are in charge of
the Senate, the entire Cabinet can ignore the law. It is no longer
impeachable in Democrat wonderland when a member of the executive
branch openly defies the law.
By the way, every Democrat just voted that way. They didn't hear one
word of argument. The majority leader didn't stand up and say: Here is
the reason why it is OK. No, he didn't present that argument.
They didn't read a brief. Nobody wrote a brief. They didn't care
enough to know what Senator Lee just laid out, that the Biden
Department of Justice went in front of the U.S. Supreme Court and said:
If the executive defies the law, the answer is impeachment.
The willingness of every Democrat to be blatantly hypocritical--just
last year, the Biden Justice Department said: No, no, no, no, no. You
can't sue in court when we, the Biden administration, defy the law. The
answer is impeachment.
And like three-card monte, every Senate Democrat said: No, no, no,
no, no. The answer is not impeachment. I don't know what it is.
Actually, I do know what it is. There is only one answer left, which
is that everyone who is unhappy about the open border shows up in
November. And, to use the phrase, throw the bums out.
Because if you are not willing to do your job--is there not one
Senator on that side of the aisle who cares enough to honor the
Constitution?
And, by the way, the second article they threw out said that lying to
Congress is not a high crime or misdemeanor. It is not impeachable.
Now, as the Senator from South Carolina pointed out, Bill Clinton was
impeached for lying under oath. And do you know what happened? He was
ultimately acquitted, but after a full trial, where they heard the
evidence, when the Senate did its job.
By the way, one of the impeachment managers was Senator Graham, who
presented that evidence right here on this floor.
And do you know what? Before Bill Clinton, there is a guy named
Walter Nixon. You may not know who Walter Nixon is. Walter Nixon was a
Federal judge who was convicted of perjury. From Mississippi, he was
convicted of perjury in front of a grand jury, and he was impeached.
And it went to the Senate, and the Senate convicted him and removed him
from the bench.
So do you want to know what the precedents were prior to today? You
commit a crime--lying under oath, perjury--it is a high crime or
misdemeanor that is impeachable. No
[[Page S2811]]
more, because understand the Democrats rule here. This is all about--
this is not about the Constitution. None of them care.
By the way, we repeatedly moved: Let's go into debate and hear the
other side of the argument--no.
Look, the famous three monkeys: Hear no evil, see no evil, speak no
evil. That is just evil, what they did. They don't want to know because
they don't care, because it is not about the Constitution. It is not
about the law. It is about political expedience.
But every bit as violent as what they did to the Constitution was
that it is even more offensive what they did to the American people.
Last year, 853 migrants died crossing illegally into this country.
That is almost three a day. You go down to the southern border. You go
down to Texas--which the Democrats don't bother to do because they
don't care about the people dying--and you see photograph after
photograph of the Texas farmers and ranchers finding dead bodies on
their property. Many of my colleagues who have been down there with me
have seen the elderly people the human traffickers have abandoned, have
seen the pregnant women the human traffickers have abandoned, and have
seen the infants and toddlers left to die. The Senate Democrats just
told the American people they don't give a damn about the bodies and
the people who have died the last 3\1/2\ years, and they don't give a
damn about the people who are going to die next week.
Next week, more migrants are going to die. But we brought 19 Senators
down to the border. We went out on a boat in the Rio Grande. We saw a
man floating dead in the water. Senator Lee was there. Senator Kennedy
was there. He had died that day. The Democrats just told the American
people they don't care.
When you go down to the border and you look at the children who have
been brutalized--just about all of us here are parents. I will tell
you, when you look in the eyes of a little girl or a little boy who has
been abused by traffickers and you see it--you see the pain. You see
the agony of children trapped in sex trafficking. The Democrats just
said they don't care. They won't hear the evidence. They don't care if
it is deliberate, and they don't care that it will happen next week,
that it will happen tomorrow. Tomorrow, there will be children
brutalized because of the Democrats' open border policies and not a one
of them care.
They don't care about the women who are repeatedly sexually
assaulted. Again, when you look at the eyes of these women coming over,
it is heartbreaking. And the Democrats just said: We don't care.
And they don't care about the more than 100,000 Americans who died
last year from drug overdoses, the highest in our Nation's history.
Seventy percent of that is from Chinese fentanyl coming across our
southern border. And the Democrats said: We don't want to hear about
it. We are not interested in the Americans dying.
You know what else they don't care about? They don't care about the
criminals who are being released day after day after day. The Biden
administration is releasing murderers and rapists and child molesters,
and every week we see a different story of somebody being killed,
somebody being raped, another child being assaulted by illegal
immigrants being released by Alejandro Mayorkas and Joe Biden.
How shocking that there wasn't one Democrat who said: You know,
massive human suffering matters.
We ought to hear the evidence. How shocking is it that there wasn't
one Democrat--one. There are 51 of them on that side. Not a single one
could screw up the courage to say: Let's do our job. Let's hear the
evidence.
How shocking is it that not a Democrat cares about the terrorists who
are streaming across our southern border? The nation of Iran has called
for jihad against America. Hamas has called for jihad against America.
Hezbollah has called for jihad against America. And Joe Biden and the
Democrats have put out a red carpet and said: If you want to murder
Americans, come across our southern border and we the Democrats will
welcome you.
Like many of us on this floor, I was in Washington, DC, on September
11, 2001. I remember the horror. I lost a good friend. Barbara Olson
was in the plane that crashed into the Pentagon.
I remember the smell of smoke and sulfur and burning. I remember the
agony, and I remember the national unity that came after 9/11, and
Democrats and Republicans came together. I don't know that I have ever
been more proud of a President than when President George W. Bush stood
on a pile of rubble with a bullhorn, talking to firefighters and New
Yorkers. And one of the men in the crowd called out and said: ``We
can't hear you.'' And he responded: Well, I can hear you. And soon the
whole world is going to hear you as well. We were as one.
Today, not a single Democrat was able to mount up the courage to tell
the majority leader: You know what, I don't want another 9/11 to
happen. The House impeached Alejandro Mayorkas, brought evidence of
releasing terrorist after terrorist after terrorist. We ought to hear
the evidence.
I believe today we have a greater risk of a major terrorist attack on
U.S. soil then at any point since September 11. And every Democrat just
told the American people it doesn't matter to them to hear the
evidence.
I appreciate my Republican colleagues who are here, who are willing
to hear the evidence, willing to engage, willing to stand up and defend
the American people. But you know what? The Democrats who aren't here,
they aren't here because you know who also is not here? If you look up
at the Gallery, the reporters are all gone. The couple of folks in the
back, I hope you all write. But the reporters are absent.
That is the Democrats' plan. What is fascinating? We are presenting
argument--many of us, particularly those of us on the Judiciary
Committee, but many of us have presented those arguments over and over
and over again in hearings--not a Democrat arguing from the other side.
It is an issue unlike any other issue I know of in politics.
Listen, if we are arguing about taxes as Republicans, we say: We can
cut taxes. It is good for the American people. Do you know what
Democrats do? They stand up with their talking points: No, tax the
rich. OK, fine. We have a debate.
When we are talking about just about every issue, the Democrats will
argue on the other side. They have their spin. What is fascinating--
where is Dick Durbin, the chairman of the Judiciary Committee, standing
up and saying: No. No, it is not right that migrants are dying every
day. No, it is not right that children are being assaulted every day.
No, it is not right that women are being sexually assaulted every day.
No, it is not right that they are releasing terrorists every day. They
are not there. Not a Democrat is there. Why? Because you can't defend
it.
I will tell you, South Texas for 100-plus years has been a Democrat
region of our State. It is turning red with the speed of a freight
locomotive because nobody can see the suffering that is unfolding and
defend it. And the Democrats, by their silence and by the complicity of
the press corps--they are counting on the press corps to write stories:
``Victory for the Democrats.'' Yes, they got rid of the impeachment
trial. That is the headline news.
Understand, they don't have a substantive defense. None of them
dispute a word we are saying. Not a single Democrat has stood up and
said: You know, it is wrong that Laken Riley would still be alive if
Joe Biden hadn't let her murderer go. They know it is right. The reason
they didn't want a trial is because they don't want the American people
to hear about it, and it is our obligation to make sure the American
people do.
Mr. LEE. Senator Ricketts is the former Governor of Nebraska. I would
love to get your perspective on this.
The PRESIDING OFFICER. (Ms. CORTEZ MASTO). The Senator from Nebraska.
Mr. RICKETTS. Thank you very much to the Senator from Utah for
organizing this.
My, my, my. What have our majority leader and the Democrats in the
Senate wrought?
They have overturned 227 years of precedence that my colleagues have
talked about: 21 previous impeachments, all scheduled for trial; 17
came to trial, and the ones that did not was because the person who was
to be impeached was either expelled or dismissed prior to the trial.
[[Page S2812]]
To my colleague from Texas's point about the media being complicit,
one of the headlines in Politico that I was told about said the trial
lasted only 3 hours.
There was no trial. There was no trial.
The majority leader decided that he could determine it was
unconstitutional and get every single one of his Democrats, along
partisan lines, to vote for it. He said it was unconstitutional, did
not rise to the level of high crimes and misdemeanors.
Let me briefly examine that.
Article I sent over to us by the House. I am just going to read the
title: ``Willful and Systematic Refusal to Comply With the Law.'' That
is article I.
Let me tell you about complying with the law. Prior to this
administration, the Trump administration had brought illegal crossings
down to a 45-year low. What we have seen since then is an explosion of
illegal crossings: over 1.7 in the first year of the Biden
administration, nearly 2.4 in the second, and nearly 2.5 in the third.
Now, if you count all the people who tried to cross the border
illegally or who crossed the border, including the ``got-aways,'' it is
9.4 million people--larger than the population of New York City--and
300,000 in just December alone. That is larger than our capital city in
Nebraska, Lincoln. The evidence is right there that we are not doing a
good job at the southern border.
And why would that be? Well, because Alejandro Mayorkas is complicit
in not following the law.
In a memorandum Mayorkas sent to Immigration and Customs Enforcement
officials in 2021, he said:
The fact an individual is a removable noncitizen--
Notice he doesn't even say ``illegal alien,'' which is what it says
in the law. He says:
The fact [that] an individual is a removable noncitizen
therefore should not alone be the basis [for] an enforcement
action against them.
He is basically saying that just because you broke the law doesn't
mean we have to enforce the law. That right there should tell you he is
willfully disregarding the law. Absolutely.
How about the case of parole where the law says that it is only
supposed to be used on a case-by-case basis in situations where the
person has an extreme humanitarian need or it is in the best interest
of our country? Under the Obama and the Trump administrations, it was
used an average of 5,600 times--paroled 5,600 foreigners in this
country between the Obama and Trump administrations on an annual basis.
Last year alone, Mayorkas paroled into this country 1.2 million--whole
classes of people--a clear abuse of the law.
Folks, when you see instances where the Secretary for Homeland
Security is not following the law, doesn't that raise the question:
Shouldn't we have a trial? Shouldn't we examine whether or not he
actually should be convicted of this?
And yet, as my colleagues have pointed out, not a single Democrat--a
partisan line--said: No, that is not willful disregard of the law.
Let's move on to article II. Article II--again, I am just going to
read the title of this--sent over, says ``Breach of Public Trust.''
Breach of public trust.
Well, what does that mean? How about misleading Congress, wouldn't
that be a breach of public trust?
On April 28, 2022, Mayorkas testified repeatedly in front of the
House Judiciary Committee that DHS possessed the operational control of
the southwest border in accordance with the statutory definition. But I
just told you how the number of people crossing the border had
exploded. My colleague from Texas did a great job talking about the
human suffering this created.
If we had been allowed to have a trial, we would have heard from
Border Patrol agents who would have come up and testified personally
that the border was not secure.
I have been down to that border as well four times. I have seen the
people coming across. That border is not secure. In the last trip down
there, there were mostly Hondurans, but there was a couple from Moldova
on the Russian border who had paid to get across our border because the
whole world knows it is open.
This is absolutely what we are talking about; that this is why we
have to hear the evidence to go and determine whether or not there is
guilt or innocence. And the Democrats have denied it, and it is to the
detriment of our Constitution and to our country that we are not being
allowed to have a trial, to examine the evidence, and to determine
whether or not Alejandro Mayorkas is guilty and whether or not he
should be impeached.
I think the few things that I have laid out here this afternoon go
exactly to we should examine the questions, and the Democrats chose not
to even ask the questions before they dismissed this entirely.
Thank you to my colleague from Utah for giving me the opportunity to
be able to address these issues.
Mr. LEE. Before he had his name changed legally--for purposes of this
Chamber--to the junior Senator from Missouri, Attorney General Eric
Schmitt was one of the Nation's leading legal minds engaged in this
problem, engaged in trying to address the lawlessness at our southern
border, brought on by the policies of this administration. I would like
to hear his perspective on what happened today.
Mr. SCHMITT. I thank the Senator.
Madam President, I will take this in two parts. I think it is
important for us to actually digest--for the folks here watching in the
Gallery or the press folks who are here or who have left--to really
understand what happened today, because what happened today wasn't some
disagreement about the number of amendments people might have on an
appropriations bill or whether or not some vehicle is going to be a
priority or not.
What was established today was a new precedent--something that had
never taken place in this Chamber in the history of our Republic.
What the Senate Democrats decided to do with a simple majority was to
bulldoze 200 years of precedent that said something very simple: that
this Chamber would honor our constitutional obligation and conduct a
trial to hear the evidence. There is no real debate. We were to hear
the evidence from witnesses, with counsel present. There is a whole
process--there is a whole procedure--that has been established, finely
wrought throughout the ages, that we were to honor--when we raised our
right hand when we get sworn in to honor--when we got sworn in today to
honor--as U.S. Senators. That is all gone now--maybe forever.
I don't see a circumstance now--you heard the parliamentary inquiries
asking if a precedent had ever been established for this or that. A
hundred years from now, when somebody else has Harry Truman's desk--if
I remember to carve my name in it before I die--somebody will have this
desk. I don't know that person's name. I don't know their background or
what their life experience will be, but they will know what happened
today. They will know that the U.S. Senate, under Chuck Schumer, who
will go down as one of the worst U.S. Senators in American history
because of his actions today--they will know that we just blew off an
important duty: to conduct a trial.
It wasn't, you know, an idea--and to paraphrase my friend from
Louisiana, it wasn't some, you know, ``gamer bro'' with a tweet. These
were Articles of Impeachment, voted on by the people's Representatives
in the House of Representatives, walked over here and delivered. So
Chuck Schumer and the Democrats who voted for that are going to have to
own that. And to paraphrase something the Senator from Kentucky said
just a few years ago: I think they are going to regret it, and I think
they are going to regret it sooner than they think.
So, having said that, what was this trial supposed to be about?
As the Senator from Utah mentioned, when I was attorney general in
Missouri, we brought the first lawsuit against the Biden administration
for their actions at the southern border when they decided to undo
``Remain in Mexico.'' We were successful for a while, but what came out
of that was a lot of what you might have read in article I of the
impeachments that were brought over. A lot of those were from--a lot of
those arguments were from that case.
As an interesting little side note, when we won--when we had an
injunction in place, actually, for the Biden administration to keep
this very important protection in place--they ignored it. We had to go
back in front of
[[Page S2813]]
a judge time and time again to get them to abide by the law.
But what we have found out from this administration and Secretary
Mayorkas specifically is they are willing--he himself is willing to
subvert the law, to believe that he is above the law, to lie and to
commit a felony that this Chamber now has said doesn't rise to the
level of a high crime and misdemeanor--forever. That is the precedent
forever.
The human toll of this lawlessness at the border that has been
overseen by Secretary Mayorkas is devastating. Thousands of people die
every month from fentanyl abuse or overdoses. We have a ticking time
bomb in this country with a national security threat. We don't know who
2 million people are; and 9 million people have come here illegally.
Most of them have been told: Please show up for a court date sometime
in the 2030s. That is not going to happen. But 2 million of them--we
don't know who they are; we don't know where they are from; we don't
know where they are at. We are seeing a record number of Chinese
nationals come across just in California alone.
People from all across the world are coming here because they know
our border is wide open, and it is not by accident. Whatever the
motivations are, Secretary Mayorkas's memo and instruction to his
employees is to ignore the law. The immigration law in this country,
the snapshot, is if somebody comes here illegally, they are detained,
and they are deported unless some adjudication exists, like an asylum
case is processed; but 9 out of 10 of those are bogus. That had been
the law of our country, the law of the land, for a very long time among
Republican and Democratic administrations but no longer, because
Secretary Mayorkas decided to instruct his employees to subvert that
law.
If you want to change it, come here. If you want to change a
``shall'' to a ``may,'' that is what we are supposed to do. That is
what the article I branch is supposed to do, just like the article I
branch here in the Senate is supposed to hold people accountable who
are in high positions of government. It is our remedy.
As the back-and-forth in that United States vs. Texas and Missouri
case from Justice Kavanaugh to the Solicitor General of the United
States indicated, what is the remedy here?
And the Department of Justice's own lawyer said: Well, they have the
remedy of impeachment.
But I guess we don't actually have that anymore.
So I know that, in these 24-hour news cycles, things move on quickly.
Tomorrow, we are going to be on, you know, FISA, and there is national
security stuff, and it will be easy, I think, for many to sort of wipe
today away, but it won't go away. It is a stain on this institution. It
diminishes this body. It is why I stood up to object to a ridiculous
idea that, somehow, we are supposed to negotiate away our
constitutional duty. That isn't up for grabs. That is our job.
Oh, thank you, Senator Schumer, for giving us a half hour to talk
about this.
No thanks. Not from me.
Now, would I do that on some amendment to an approps bill? Probably
not. But, when Senator Schumer wants to set our constitutional order on
fire, I will stand up and I will object, and I know many other people
share that point of view.
There is no structure to the arson you are committing.
So I appreciate the inquiry--or this back-and-forth we are having
with the Senator from Utah because, sadly, this is all we are left
with.
So many powers of individual Senators have been given away over the
years. This institution is no longer the world's greatest deliberative
body; it is Kabuki theater with fewer powers now individual Senators
have and fewer powers that we have been given by our Founders as an
institution. For what? For what? A couple of bad days? A couple of news
cycles?
Congratulations. Congratulations, Chuck Schumer. You are going to own
that, and every single Democrat who voted for it will too.
So the border crisis isn't going away. It still exists. The Senate
lost an opportunity to hear evidence to hold someone accountable today.
I thank the Senator.
Mr. LEE. No. Thank you. Excellent remarks. There are some days that
one wishes one could live over. This is a day that will live in infamy
and is a day that future generations will wish had gone differently.
We have got a friend and colleague--our friend and colleague, the
senior Senator from Wisconsin, has many titles in the Senate, titles of
distinction. He is the prince of plastics, the maven of manufacturing,
the connoisseur of cheese curds. He is also, among other things,
someone who has identified himself as a chancellor of charts showing
the profound depth of our border security crisis. He has been working
on this ever since he first became the chairman of the Homeland
Security Committee back in 2015. He has built on these charts, and he
has built on them in a way that has resulted in their catching fire.
You will now see politicians all over the country at every level of
government--and I mean every level of government--utilizing his charts
because they are the best in the business. Let's hear from him now.
Mr. JOHNSON. I thank my colleague from Utah, and I was not aware of
all of those titles, but I will accept them.
Madam President, if we would have had a trial--and it is a travesty
we haven't. There has been great damage done to our Constitution and to
this institution by our colleagues on the other side of the aisle
because they didn't want the American people to see this.
Now, I have described this chart--had we had a trial, this would have
been the irrefutable DNA evidence that proved the crime. There is no
way you can take a look at the history of illegal entry into this
country and not recognize that what has happened under the Biden
administration and under Secretary Mayorkas is nothing less than an
utter catastrophe.
Yesterday, I spent about 10, 15 minutes on the floor going through
the history of the cause and effect that this chart shows. But what I
really want to point out today is what the Democrats did not want us to
reveal, because what this chart shows is that this was purposeful; this
was willful. President Biden and Secretary Mayorkas and our Democratic
colleagues here in the Congress and in the Senate, they want an open
border. They caused this crisis. This didn't just happen. This was a
game plan that they implemented. They aided and abetted it. All the
damage, all the destruction, all the crimes that are a result of this--
they have aided and abetted it.
What this chart does show is that the lawlessness started back in
2012 by the Obama administration under the Deferred Action for
Childhood Arrivals. This took prosecutorial discretion, which is--
again, I am not a lawyer; I am not a prosecutor, but I believe that is
supposed to be applied on a case-by-case basis. President Obama took
prosecutorial discretion and granted it to hundreds of thousands of
people. That is what has sparked every surge in illegal immigration
since that point in time.
I used to have a chart that just showed unaccompanied children. Prior
to DACA, there were maybe 2,000, 3,000, 4,000 unaccompanied children
per year that our Federal Government had to account for and had to deal
with. In 2014, because of DACA, we encountered 69,000 unaccompanied
children--69,000. Even back then, President Obama, when his Department
of Homeland Security and his Customs and Border Patrol were dealing
with 2,200 illegal immigrants being encountered per day, he declared
that to be a humanitarian crisis--2,200 people a day.
By the way, I went down to McAllen, TX, with a bunch of Democratic
colleagues in February of 2015, during this surge, and people were
singing the praises of CBP, of their kind of skirting bureaucratic
rules and setting up a detention facility that would protect children.
They used chain-link fences. Again, we were singing their praises.
Democrats were singing the praises of the CBP. A few years later, when
President Trump had to deal with the crisis--again, sparked by the
unlawful DACA memorandum--all of a sudden, the Democrats were saying
they were kids in cages. Do you notice a double standard?
I won't go through all the history, but I will point out, with
President Trump, the reality of the situation was we were letting
children in. We
[[Page S2814]]
couldn't detain them. You had the Flores reinterpretation that said
that children, even accompanied by their parents, couldn't be detained.
People around the world noticed that, so they started coming. They
started creating fake families. Children were being sold--in testimony
from my committee, children were being sold for $81 to create a family.
A little boy was found abandoned in a field in 100-degree temperatures.
He had already been used. He created that family. The other people got
in, and they just left him there. The only identification was a phone
number written on his shoe.
President Biden and Secretary Mayorkas said they had to undo all of
President Trump's successful border security provisions because he said
those were inhumane. There is nothing humane about facilitating the
multibillion-dollar business model of some of the most evil people on
the planet--the human traffickers, the sex traffickers, the drug
traffickers. How many overdose deaths have we experienced throughout
America because of this open border policy? There is nothing humane
about that.
When President Trump faced his peak, there was a sharp, sharp rise
but a sharp fall. In May of 2019, almost 4,800 people entered this
country illegally. President Trump did something about it. He used what
the Supreme Court said in the 2018 decision is existing law that exuded
deference to the President. So even though that Presidential authority
has been weakened somewhat by the Flores reinterpretation, that
settlement, even with that weakened authority, President Trump took the
bull by the horns, instituted ``Remain in Mexico,'' safe third-world
countries, and had to threaten the President of Mexico with tariffs so
he would cooperate. But in 12 months, President Trump went from his
peak to his trough: A little more than 500 people a day entered this
country.
The interesting thing about this chart--that was, again, April of
2020. Why did the numbers go up? There is a pretty simple explanation.
That was amidst a Presidential campaign, and every Democrat
Presidential candidate pledged that they would end deportations, that
they would give free healthcare, and the world took notice. People
started coming in in anticipation of President Biden taking office, and
then once President Biden took office, the catastrophe began.
President Biden now he claims he doesn't have the authority. No, he
has all the authority that President Trump had to close the border.
President Biden and Secretary Mayorkas used that exact same authority
purposefully, willfully to open up the border. So President Biden
didn't need more laws, Secretary Mayorkas didn't need more laws to fix
this problem; they caused the problem. They have the authority.
We would have been happy to strengthen the authority, to overrule the
Flores reinterpretation. They weren't asking for that. All our
Democratic colleagues wanted was political cover. That is the truth.
So we went from a humanitarian crisis under Obama of 2,200 people a
day. Trump had almost 4,800 people a day, but he fixed it. President
Biden's record is more than 10,000 people a day in December of last
year--10,000 people a day. During his entire administration, he has
averaged 7,800 people entering this country illegally because he has
welcomed them. He has incentivized them. He wanted an open border. He
caused this problem.
Our Democrat colleagues would not even listen to evidence, would not
let the House managers make their case of the lawlessness, of the
willfulness, of the lying to Congress, because they didn't want the
American people to see this.
I have shown this chart to Secretary Mayorkas. I will show it to him
again tomorrow when he comes before our committee. The first time I
showed this a couple of years ago, it looked almost as bad.
I asked him: Secretary Mayorkas, I mean, don't you recognize this is
a crisis?
He sort of said we have a secure border. He wouldn't say it is a
crisis.
Well, would you at least admit it is a problem?
No, Senator; it is a challenge.
Now, I would view that as a lie.
I would have liked to have heard the evidence presented by the House
managers of other instances where Secretary Mayorkas lied to Congress,
which, again, as I thought was definitely pointed out by the Senator
from Louisiana--isn't that a felony? Doesn't impeachment only have to
be a misdemeanor?
So there is so much wrong in what our Democrat colleagues did today
by just summarily, cavalierly dismissing these charges. It is going to
come back to haunt our country.
My final point will be that this disaster--it is not a chart; it is
numbers. There are colors. But the real disaster is with the
individuals who have lost their lives, who have lost loved ones, the
children who have been raped, who have been caught in the crossfire of
the gang wars. That is the real challenge or that is the real
catastrophe. That is the real problem the Democrats today just swept
under the rug. It is a travesty that shouldn't happen. But we will
continue to prosecute this case right up until November.
Mr. LEE. I am grateful for those insights that we had from our friend
and colleague, the distinguished senior Senator from Wisconsin.
You know, when the senior Senator from Alabama joined the United
States Senate, it was a pleasure to get to know him. It has been a
pleasure to work with him ever since. In fact, I visited our southern
border within a few months after he arrived here.
I noticed in him a distinct concern not only for the welfare of the
residents of the State of Alabama and all other Americans but also a
genuine concern for those who have been human-trafficked into our
country by the drug cartels, with the tacit acquiescence and even the
affirmative blessing of this administration.
I, for one, am glad that Senator Tuberville was not the head coach at
the University of Miami when their football team played BYU in the late
summer of 1990. Had he been, that game might have turned out
differently. But I would love to get his thoughts on this matter.
Mr. TUBERVILLE. It was a pretty good game, by the way.
Mr. LEE. A very good game.
Mr. TUBERVILLE. Thank you to my colleague from Utah.
I am kind of amazed at what has happened today. It has been
categorized several ways, whether it is kangaroo court or three-ring
circus or organized grab-ass. I don't know how you look at it, to be
honest with you.
It is amazing what we sat here and watched. We all thought in the
last few weeks that there was a chance for an impeachment trial of
Secretary Mayorkas, but it only lasted a few hours--a historic event in
the eyes of every Senator, not just Republicans but also Democrats.
One thing I want to say is, has he faithfully executed his duties of
the United States Constitution, the one that we all put our hand on the
Bible and swore to do?
It was amazing to me how this all went down at the end of the day. It
really wasn't Secretary Mayorkas. He wasn't the only one on trial today
or would have gone on trial, impeachment trial; it would have been
every Democrat--every Democrat here in the Senate, every Democrat in
the House, and every Democrat who is running our executive branch--
because there has not been one person who has said anything since I
have been here, in 3\1/2\ years, like: We need to do something at the
border. Not one.
We have let in 10 million illegal aliens in the last 3 years. On that
data point alone, Secretary Mayorkas intentionally--intentionally--
failed to secure the border.
I personally asked him one day why he was not at least giving a fair
chance of closing the border. He says: Senator, we need more money.
Well, I looked it up, and his budget is 20 percent more than what
President Trump's Secretary of Homeland Security had--20 percent.
His job is homeland security. That is his entire job.
Senator Schumer and all the Democrats could have conducted this
impeachment trial today, and it would have never seen the light of day
after the trial because we would not have had the votes on our side to
impeach Secretary Mayorkas. So, instead, the impeachment process is
over. The media will stop covering it in a few days. We will be going
back to throwing millions of taxpayer dollars at blue
[[Page S2815]]
States so they can manage the surge of illegal aliens going to blue
cities all over the country.
Just last week, the Department of Homeland Security awarded another
$300 million to cities in support of illegal aliens. Today, the city of
Denver announced that they would shift $8 million from their law
enforcement to take care of illegal aliens. It is clear that the Biden
administration is more concerned with taking care of these illegals
than they are about protecting the citizens.
So I will ask again: Has Secretary Mayorkas fulfilled his oath of
duty before this body to protect and defend the country against all
threats, foreign and domestic? Is our border secure? The answer is
simple: He has not, and it is not.
Mayorkas has been derelict in this duty--derelict--and
confrontational in his duty to all of us when we have asked him
personally what he is doing at the southern border.
In voting against his impeachment, our Democrat colleagues are
basically lying to themselves. They are risking the lives of Americans.
Senator Schumer and Democrats can't say that they want to fix the
border while trying to save his job. Americans are dying at the hands,
every day, of what is going on at our southern border.
Every State is a border State now. It is not just Texas; it is not
Arizona and California--every State. My State of Alabama is being
overrun with illegal aliens.
The number of people crossing the border who are on the Terrorist
Watchlist is unprecedented. That is what scares me. If you listen to
our FBI Director, he said we have a major threat to our country, and he
said it is coming, but it doesn't seem like anybody is listening.
Nobody is listening who is in charge.
Just last week, it was reported that an Afghan on the FBI Terror
Watchlist has been in the United States for almost a year. He is a
member of a U.S.-designated terrorist group responsible for the deaths
of at least nine American soldiers and civilians in Afghanistan--nine.
ICE arrested him in San Antonio just last year in February.
Unfortunately, this known terrorist has been released on bond and is
now roaming the neighborhoods in the United States of America.
It isn't just terrorists; it is also fentanyl. We have had 100,000
people a year die in the last 3 years. The last time I looked, that is
300,000 people. It is a crime, what is going on.
Law enforcement officers in Alabama tell me that they had never heard
the word ``fentanyl'' until 3 years ago--not heard the word. It was
heroin. It was cocaine. It was meth. Now it is almost 100 percent
fentanyl, just in the last 3 years. That is a pretty good coincidence.
In February this past year, Secretary Mayorkas traveled to Austria to
speak to Chinese officials about counternarcotics efforts. Now, he
traveled to Austria to do that. Did he discuss the flood of Chinese
people coming into our country? Madam President, 22,000 Chinese
illegals have come into our country just in the last 5 months. Most of
these individuals are adult males. And I wonder where we get the idea
that there might be a big problem coming to America soon. Yet the media
tries to act like all the people who are coming here from China and all
these other countries are great people. Some of them probably are, but
most probably are not. They are coming here for different reasons.
This is not a border crisis; it has turned into a huge invasion. It
is a national security problem, and we are having it more and more each
day.
So I just want to say this: We have not done our duty here today. We
have failed the American people.
My phone rings constantly about protecting the sanctity of not just
Alabama but everybody in this country from what is happening at the
southern border. Nothing good is happening because of what has happened
from Secretary Mayorkas to the people who have opened these borders--
again, not just southern but also our northern border. That is getting
worse and worse.
We failed the American people today. Why? I don't know, but we don't
do our job.
We had a Republican majority when I first got here 3 years ago. We
brought the President of the United States on an impeachment trial, and
he was a Republican. We put him on trial in this very room.
This is all politics. We broke something today that has never been
done in the history of this school--excuse me. I am used to getting on
people when their phone is ringing in the classroom. But it has never
happened before. Now, we have set a precedent, and, unfortunately, it
will be a precedent probably that will be broken many times.
How is this body ever going to be able to hold anybody accountable
for anything that they have done wrong here in the Federal Government?
Mr. LEE. Thank you, Coach.
Another one of our colleagues who has been a longtime advocate of
secure borders and is tireless in her advocacy is our friend and
colleague the senior Senator from the State of Tennessee. I would love
to get her thoughts on what happened today.
Mrs. BLACKBURN. I thank the Senator from Utah so much for organizing
this.
Madam President, I think it is so important for the American people
to really understand what did happen here today. And what we saw happen
here today is a violation of our oath, the oath that we take that we
are going to abide by the Constitution.
Now, those who are watching this--and I would encourage all of my
colleagues among us to pull out that Constitution and read article I,
section 2, which lays out the process of impeachment for the House of
Representatives. And then section 3 of that Constitution lays out the
duty of the Senate in that Constitution.
Now, I have a poster up here from 2019. It is Chuck Schumer. This was
during the Trump impeachment in 2019. Now, Chuck Schumer, who is
currently the majority leader, basically made a full-time job of
talking about how the Senate had to do their constitutional duty to
hold a trial. That is all he talked about for days. The clips are all
over the internet.
One thing he repeatedly said:
We have a responsibility to let all the facts come out.
``A responsibility.''
Now, we have to say: What has changed between 2019, 2020, and today?
Well, of course, we know what changed for Chuck Schumer because he is
desperate to hold onto the majority in this Senate, and he did not want
some of the Senators who are highly contested in their races to have to
take a vote on the Mayorkas impeachment.
Why is that? It is because the No. 1 issue with the American people
is that open southern border.
And who is it that has regularly lied to this Chamber, to the House,
and to the American people about what is going on at the southern
border? It is Secretary Alejandro Mayorkas--repeatedly lied, repeatedly
stood before the American people, stood before us in hearings, in
committees and said the border is secure.
Anyone who is watching, anyone who has ever been to that border knows
the border is not secure. They know that, on the Mexico side of that
border, it is being run by the cartels. You can spend an hour with the
Border Patrol, and you will find out.
Last year, there were people from 170 different countries that came
to that southern border seeking entry. Not a one of them got here on
their own. They get flown to Mexico. They pay the cartels, and the
cartels bring them over. The cartels are making a fortune. We are
paying the price.
And we are paying this price because of the dereliction of duty
carried out by Secretary Mayorkas, the way he is not standing up for
the Border Patrol, the way he is not standing up for the American
people. That is an issue and, yes, a responsibility. Did we have that
responsibility? You bet we do.
And that is why we are here on this floor to talk about this, because
our border--when you look at the drugs, the fentanyl, that are coming
across that border and moving into communities across this country,
every State is a border State, every town a border town. Every single
family affected or worried about the consequences of the border,
thousands of Americans dead from fentanyl poisoning, other Americans
that have become angel parents because their children, their spouses
[[Page S2816]]
have been killed in auto accidents by criminal illegal aliens.
What they have done to this country by opening that border--and do
you know the sad thing about this? It is very intentional. This is
their border policy. They intend to do this.
So looking at the drugs, looking at the crime and the gangs, and
then, of course, looking at the human trafficking on Mayorkas's watch--
and this is something that is so important for the American people to
know. In Tennessee, we have several groups that work on human
trafficking and seek to rescue women and girls and children who are
being trafficked, sexually trafficked. The exploitation of these
children, we know that is driven by the cartels. The cartels have
turned human trafficking in this country from a $500-million-a-year
industry--over the last 3\1/2\ years, it has become $13 billion, with a
``b.'' People are being trafficked.
Indeed, children are being used as aides for these traffickers. They
are being recycled. And these precious children have their name--they
have the contact name and the phone number in indelible ink written on
their backs, written on their arms, because the cartel uses these
children to get cartel members across the border posing as families.
And, then, once that cartel member is in the United States, they turn
that child loose, and then the child gets sent back. That is
disgusting. But because of Biden and Mayorkas and the open border, that
is what is happening.
Now, even worse, we have an issue that Secretary Mayorkas claims he
knew nothing about, and it was the loss of 85,000 migrant children.
Now, we have got 400,000 migrant children who have been turned over to
the Federal Government under Secretary Mayorkas. Out of this, 85,000 of
those children cannot be accounted for. We have asked Secretary
Becerra; we have asked Secretary Mayorkas: Where are these children?
They do not know. They do not know if these 85,000 children are dead
or alive. They do not know if they have been attached to drug mules or
drug traffickers or if they have been put into gangs, labor crews.
What we did find out from some reporters is this. We found out that
some of these children were working in slaughterhouses, in the night.
That is what we found out. Oh, by the way, that was from a New York
Times reporter.
This situation at the southern border is a humanitarian crisis. The
trafficking of human beings is a crisis. Using human beings as chattel,
that is a crisis. Putting people into indentured servitude and slavery,
that is a crisis.
And who has lied about this repeatedly to the Senate and to the House
is Secretary Alejandro Mayorkas. And who voted for him? Every Democrat
on that side of the aisle who refused to let this trial come forward--
each and every one--you are responsible for this not coming to light.
It is a dereliction of your constitutional duty and a responsibility--
yes, it is a responsibility--that we, as Members, have to make certain
that the American people know what happened today.
Mr. LEE. Thank you, Senator Blackburn.
Another great mind that we benefit from in the Senate is our friend
and colleague, the junior Senator from Florida.
Before he became the Senator from Florida, Senator Scott was
previously Governor Scott, a Governor of one of the most heavily
populated States in America. And prior to that, he was famous in the
business world, personally employing hundreds of thousands of people.
So the Department of Homeland Security is an enormous organization.
Nobody understands how best to run an enormous organization and to do
so with exceptional skill better than Senator Scott, and nobody
understands better than him how the buck stops with the person running
that organization. We would love to hear from him now.
Mr. SCOTT of Florida. Madam President, I want to thank my colleague
from Utah for his commitment to the rule of law, his commitment to the
Constitution, all of his efforts today and every day that he has been
up here to make sure that the Senate follows the Constitution and
doesn't set precedents that don't make any sense. And today is a
horrible today.
I also want to thank my colleague from Wisconsin for being such a
voice on making sure that the public actually knows what is going on
here. The information he puts out, the charts he uses, the information
he has gives everybody an idea of what is actually going on.
But, unfortunately, today, Democrats' assault on American democracy
had a banner day. Democrats in the Senate said that impeachments by the
U.S. House of Representatives don't matter anymore. You don't have to
have a trial. They don't matter.
According to what Democrats did today, we don't need to hold
impeachment trials here in the Senate, ever. This is a horrible
precedent. It is not what the Constitution envisioned.
It doesn't matter if, for example, your Cabinet Secretary even
instructed your Agency to ignore the law and not execute the laws of
the United States. It doesn't matter if, by ordering an Agency to
ignore the laws of the United States, Americans are murdered. They are.
They have been.
It doesn't matter if, by ordering an Agency to ignore the laws of the
United States, deadly fentanyl pours into our communities and poisons
our children and grandchildren.
It doesn't matter if, by ordering an Agency to ignore the laws of the
United States, terrorists on the FBI Terrorist Watchlist and migrants
with known gang affiliations stream into our country to such an extent
that the FBI Director testified, sitting right next to Secretary
Mayorkas, before Congress that this is the most dangerous time in
America since 9/11.
Just stop and think about your family for a second. Think about
either your mom or your dad, your spouse, your brother or your sister,
a child or a grandchild, a niece or nephew. Just think of one of them.
Just pick one of them. You cherish and you love them. You can think
about wonderful things about them.
Now, for thousands of American families, that person that you are
thinking about today is dead. Let me say that again. For thousands of
American families, the person that you are thinking about today is
dead. They have been taken too soon by the deadly fentanyl crisis that
has ravaged our Nation because of the wide-open southern border.
I think every one of us knows some family that has been ripped apart
by the deadly fentanyl crisis. Everybody does. Some of us have been
impacted directly. Fentanyl is killing 70,000 people a year. That is
70,000 families who are torn apart because we have an open southern
border.
(Mr. OSSOFF assumed the Chair.)
This happened, in part, because instead of letting our brave Border
Patrol do their job and stop these deadly drugs, Secretary Mayorkas
intentionally is using them to let even more people illegally cross the
border and come into our country and get all sorts of nice services.
They get phones, they get lawyers, they get hotel rooms--all paid for
by the U.S. taxpayer.
Every victim of Secretary Mayorkas's order for his Agency has a name.
Just think about that family member.
I have heard a lot of heartbreaking stories in my home State. Florida
families are feeling the impact of this administration's lawless border
crisis every single day--deadly fentanyl, criminals, terrorists, human
traffickers. They pour across Biden's open border. This is all
intentional.
There are 1,145 children between 14 and 18 years old who died from
fentanyl in 2021. So that is like having a classroom of kids die every
week--every week.
In 2022, I heard from a mom in Kissimmee, just outside Orlando, where
her son, who was in the Air Force--and he had a bright future in the
Air Force--came to surprise her on Mother's Day weekend. He,
unfortunately, visited an old friend whom he didn't know had been
dealing drugs. The friend convinced the young man to take a Xanax,
which was unknowingly laced with fentanyl. The mom found him dead. He
came home to just surprise her for her birthday, and he is dead.
Put yourself in the position of that mom. What is she thinking about
today? What is she thinking about when she watches the Senate floor,
and every Democrat says: The guy who
[[Page S2817]]
made the decision to open the southern border will not be held
accountable.
So 26-year-old Ashley Dunn is another American we have lost to
fentanyl poisoning. Ashley's mother, Josephine Dunn, says their
daughter did not overdose but was poisoned by one-half of one Percocet
tablet that was counterfeit. According to Ms. Dunn, her daughter was
murdered by products made in Mexico that were welcomed into this
country by Mayorkas and his administration.
Today, Senate Democrats made certain that Secretary Mayorkas will
never have to answer. He is never going to answer for Ashley's death.
He is never going to have to answer for any of the other deaths.
But do you know what? He will know what he did. People will know too
much what he did. He will never, ever--he will never get away with
this.
America is a more dangerous place because Mayorkas and Biden have
allowed criminals, drugs, terrorists, and other dangerous people into
our communities, all over the country.
Real Americans with families are being killed. Real American families
are being torn apart by vicious crimes and deadly drugs because we have
a wide-open southern border.
If you go to the southern border on the other side, you have IDs
everywhere, because they don't want the Border Patrol that meets them
on our side to know who they are. Why would you do that?
Secretary Mayorkas is the first and only sitting Cabinet Secretary to
be impeached. He will always be known as the first sitting Cabinet
Secretary to be impeached, and now he is forever going to be blocked
from being acquitted of that charge.
I wonder how that makes him feel. He will never get that chance to be
acquitted because of what the Senate Democrats did today.
I still have a question for my Senate Democrat colleagues. Did you
silence Mayorkas today because Democrats are terrified of his record
and unable to defend him, or just because you don't trust him?
Whatever the answer is, I think that every reporter here and every
American needs to know this: Democrats put politics over the safety of
American families and the security of our great Nation today.
I fear the consequences of that unprecedented failure will be
devastating beyond our worst fears. I think it is going to take decades
to rid the criminals from this country. And, in the meantime, how many
people like Ashley are going to lose their life? How many people are
going to be raped? How many people are going to be put into slavery? I
hope to God it doesn't happen to your family.
Mr. LEE. I am grateful for the comments that have been made by so
many colleagues today in this colloquy and for the insights they have
shared. Each comes from a different State, bringing a different set of
perspectives to the table, a different set of political and
professional perspectives that help them shed light on this important
issue and provide insights and warnings about the rather grave
implications that we so cavalierly overlooked today--``we,'' meaning
the Senate as a whole, with 49 of us trying to stand in the way and
raise a word of warning about what we are doing and what implications
that might have for the future.
The warning signs are everywhere. Tragically, we have seen, just in
the last few days, with news breaking in recent hours, that the
consequences of our open-borders policy can touch all of us, with one
of our dear respected colleagues having lost a beloved staff member
within the last few days, having lost that staff member as a
consequence of the actions taken by an immigrant in this country who
was here unlawfully, who shouldn't have been here.
That is a troubling thing, but the human level has so many
ramifications. There are so many thousands of families, so many
hundreds of thousands, and, in fact, so many millions and, in fact,
tens--depending on how you slice it, hundreds--of millions of Americans
who have been impacted in real, meaningful ways by the open-borders
policy that has been so prominently featured by these Articles of
Impeachment.
Over three decades ago, I spent 2 years along the U.S.-Mexico border,
down in the McAllen, TX, region. I was there as a missionary. And, as a
missionary, one lives and works among people of all backgrounds. I
spent a lot of time with people of modest means. And, in my case, I
spent most of my time with people of such humble means that I never
quite witnessed in the United States--conditions that I didn't know
existed on any widespread basis in the United States, including some
people with dirt floors and no indoor plumbing.
But in countless cases--those were a little bit more rare, but they
exist or, at least, they existed in the early 1990s. Even though those
were more rare--those extreme cases--almost all the people I interacted
with on a day-to-day basis were people of very humble means. They were
living paycheck to paycheck, just trying to get by. And many of these
people were themselves recent immigrants. Some, I suspect, were here
legally. Others, I suspect, were here illegally. It wasn't standard
practice at the time for missionaries talking to people to find out
their immigration status. We were there for different reasons. You get
to know people. You get to know their backgrounds. You get to know
their concerns.
One of the things that stands out from my memories of those 2 years
is that, as I interacted with these people and learned their customs
and learned their language--most of them didn't speak English. Some who
didn't speak English had themselves lived in the United States most or
all of their lives. In fact, there were some people, especially in the
older generations, where these families had been in Texas for a very
long time--for generations. And some of those older generations of
people were raised speaking largely, if not exclusively, Spanish.
But regardless of their immigration background or whether their
family had been in Texas for generations or for only days or weeks, and
whether they came legally or illegally, something I learned about them
was that there is no one who fears uncontrolled waves of illegal
immigration in quite the same way, to quite the same degree, as recent
immigrants, especially recent immigrants of humble means living on or
near the U.S.-Mexico border. You see, because it is their schools, it
is their jobs, it is their neighborhoods, their homes, their children,
their families who are most directly affected by these uncontrolled
waves of illegal immigration, because it is those things that are at
their doorstep.
They know that every one of those things are placed in grave jeopardy
every time the floodgates open and people pour across our border into
the United States without legal authority to be here. Every single time
that happens, that has adverse consequences.
We have talked a lot about the more obvious and more newsworthy, more
news-covered, implications of open borders, with situations like Laken
Riley hitting the news. But we don't always talk about how it affects
other people in more mundane, more pedestrian ways.
I think we have to be mindful of and, really, watch out for the
tendency of those of us who are privileged enough to serve in this body
to otherize immigrants, to otherize anyone with a Hispanic surname, to
otherize anyone by, among other things, assuming that those groups of
people speak monolithically or that we speak for them, insofar as we
are seen as advocating a position that is tolerant of or even eager to
embrace open borders. It is not the full picture, and it is one of the
more blatantly awful otherizations that we bring about in our society.
It is assuming that someone with a Hispanic surname, someone who may be
a recent immigrant themselves would necessarily want open borders. It
is simply not true, and it speaks profound ignorance to the plight of
these individuals when we claim that they speak monolithically,
especially insofar as we are suggesting, even indirectly, that they are
for open borders just because of their last name or their first
language or how recently they arrived in the United States or where
they live in the United States relative to the border.
Getting back to the bigger picture here into what specifically
happened today, when I think about the 13--
[[Page S2818]]
going on 13\1/2\--years that I have spent in the U.S. Senate, I don't
think I can remember another day when something of such profoundly
disastrous consequences was done in this body to shatter norms, rules,
precedents, legal traditions and, in this case, constitutional
principles quite like this decision here today did.
I remember, just before Thanksgiving in 2013, I had been in the
Senate not yet 3 years, just days before Thanksgiving, just before we
broke for the Thanksgiving recess, when a group of my colleagues, all
of one particular party, decided to nuke the executive filibuster--
decided to break the rules of the Senate in order to change the rules
of the Senate, not by changing the rules themselves, because changing
the rules themselves takes 67 votes, but, instead, by a simple majority
vote. They created new precedent to undercut and flip the meaning of
one of the Senate rules: getting rid of the cloture rule with regard to
the Executive Calendar.
I spoke to a lot of people after that happened, people of both
political parties, including some of both political parties even within
this body, who serve in this body, who expressed regret over that day
and concerns for where it could lead. But particularly I heard from
people not serving in this body, people from all walks of life,
including people of all political persuasions, who acknowledged the
profound consequences that could have and would eventually have on the
United States Senate because, again, it involves a rather shameless,
cynical maneuver whereby the Senate broke the rules of the Senate in
order to change the rules of the Senate without actually changing the
rules, pretending that the rules said A, not B, when, in fact, they
said B, not A.
I think it may have been Abraham Lincoln who once said that--he asked
rhetorically, if you count a dog's tail as a leg, how many legs does
the dog have? Whenever he asked this to any individual, they would tend
to say, understandably, accepting the framework of his hypothetical,
that that would be five legs. He would respond by saying: No, it is not
five legs. Even if you call the tail of a dog a leg, it is still not a
leg.
That is what we did when we nuked the executive filibuster on that
fateful day in November 2013.
In countless ways, what happened today was far worse than that
because what was at stake today were not just the rules, traditions,
precedents, and norms of this body--rules, precedents, traditions, and
norms that, I would add here, have at no moment in our nearly 2\1/2\
century existence countenanced a result like what we achieved today.
That is to say, we never had something like this, where we had Articles
of Impeachment passed by the House of Representatives and transmitted
to the United States Senate at a moment when the person impeached was
neither dead, nor a person who had left the office that person held,
nor a person ineligible for impeachment, meaning a Member of the House
or Senate. Members of the House or Senate can be expelled by their
respective body by a two-thirds supermajority vote, but they are not
subject to impeachment per se.
If we carve out those narrow, rare exceptions where Articles of
Impeachment have been cast in a way that was patently wrong, where
subject matter jurisdiction in this body was lacking either at the time
the articles were passed or between the time they were passed at the
House and the time they arrived in the Senate, we have what I think can
fairly be characterized as essentially a perfect record--at least a
consistent record--that we at least held a trial.
We at least held the bare bones of a trial in which we had arguments
presented by lawyers--at a minimum, by lawyers representing the House
of Representatives. They are known as impeachment managers and
sometimes described colloquially as House prosecutors. We at least
heard arguments by them. Normally, that involves a presentation of
evidence by them, by the House impeachment managers. Normally, it
involves both sides having lawyers--not just the House impeachment
managers but also defense counsel representing the impeached
individual. Normally, there has been evidence presented and arguments
made about why the Articles of Impeachment either were or were not
meritorious.
In every one of those circumstances, with the narrow exceptions that
I described as the sole exceptions, there has been at least some
finding on at least some of those articles in every single case
culminating in a verdict--a verdict of guilty or not guilty. That by
itself is a precedent and a norm and a custom and a tradition and a set
of rules that we overlooked today and that we have run roughshod right
over.
But there is something much more at stake, something much more
concerning about this that I find so troubling, and that is that under
article I, section 3, clause 6, the Senate is given the sole power and
with it the sacred responsibility and duty to try all impeachments.
As I just described, in every circumstance where there wasn't some
jurisdictional defect--and by that, I mean a bona fide subject matter
jurisdictional defect such that we lacked jurisdiction to move
forward--we have proceeded and reached some kind of a verdict in every
one of those cases. But not today.
Mr. President, I had been concerned for weeks and I heard rumors for
weeks that what was going to happen today was that the majority leader
was going to approach these articles with a certain degree of cavalier
indifference and offer up a motion to table.
I immediately became convinced after looking at the rules and
studying the precedent on this that a motion to table would be
inappropriate here. It would be inappropriate because, for the same
reasons I just explained, we have never done that, never done anything
close to that.
The closest precedent for something like that was so far off course
that it couldn't even be relied on. I recall the only precedent that
even sounded like the same thing was, in fact, very different. During
the trial over the impeachment of President Andrew Johnson, one Senator
had made a particular motion to do a particular thing during that
trial, and another Senator later moved to table that motion. There was
no motion to table any Articles of Impeachment.
In any event, I became convinced after studying this that a motion to
table would be without precedent and contrary to everything I thought I
knew about our role constitutionally and otherwise to conduct
impeachment trials.
I also became convinced that this would be bad precedent in that it
would set a certain precedent suggesting that it is OK, that if the
party occupying the majority position at the United States Senate
didn't want to conduct a trial, that it didn't have to; it could just
sweep them aside.
As I say, channeling the immortal words of Rush and the song
``Freewill,'' if you choose not to decide, you still have made a
choice. You made a bad one if you choose to just set aside the
impeachment articles without rendering a verdict of guilty or not
guilty, whether pursuant to a motion to table or otherwise. A motion to
table would be an especially bad basis--an especially bad strategy and
bad mode for disposing of or otherwise addressing Articles of
Impeachment.
It is important in this context to remember that the United States
Senate has exactly three states of being. We exist at any given moment
in our capacity as legislators in legislative session; secondly, in
executive session, where we consider Presidential nominations and also
on occasion treaties for ratification--both executive functions carried
out under our Executive Calendar. Our third state of being exists in
this context where we are to operate as a Court of Impeachment.
It is solely in our capacity as Senators sitting in a Court of
Impeachment that we are administered a second separate oath, different
from the oath that we all take each time we are elected or reelected to
the Senate--different capacity. It is a capacity that requires us to
decide the case and to do so on the merits of the case.
It is also unique in that it is the only mode in which there is a
solid expectation, unblemished until today, that if we do, in fact,
have Articles of Impeachment over which we have subject matter
jurisdiction, that the case hasn't been rendered moot--there is an
expectation, backed up by history, tradition, precedent, and the text
of the
[[Page S2819]]
Constitution, that we will do the job; that, in fact, according to
these precedents, up until today, we will reach a verdict of guilty or
not guilty by the time we are done.
You see, those things don't exist in the other two states of being.
In our legislative calendar, there is no expectation or tradition or
precedent or implication from the text of the Constitution that we will
affirmatively act upon and ultimately dispose of every piece of
legislation presented to the United States Senate. We don't do that. We
have never taken that approach. If we did, it would grind the place to
a halt. I don't think it would physically be possible.
Nor has that ever been the expectation on the Executive Calendar.
Sure, we tend eventually to get to most of them, but there is an
understanding that unless or until such time as we confirm a particular
nominee, that nominee is not confirmed, such that if we get to the end
of the road, the end of that Congress, the end, even, of a session, if
that person is to be confirmed, that person is to be renominated first
and then considered by the Senate. But even then, there is no guarantee
as to any final vote disposing of that nomination.
This is different in the context of an impeachment where we sit as a
Court of Impeachment. In so doing, we become two things. In any trial--
in an ordinary court, there are two functions that a trial involves.
You have to have finders of fact--that is a role typically played by a
jury in our system, both in civil cases and in criminal cases--and you
have to have judges of legal issues. Typically, those are performed by
a judge. In some cases--most commonly, if the parties agree to have the
issues of fact decided by a judge rather than a jury, then you can have
the whole thing, the issues of fact and the issues of law, decided by a
judge.
We serve both functions. We are finders of fact and judges of the law
relevant to the impeachment case before us. I think that is the whole
reason why we are given a separate oath for that. We don't take a
separate oath every time we bring up a bill or get a Presidential
nomination or every time we are asked to consider a treaty for
ratification, but we do take a separate oath every time we receive
Articles of Impeachment. It is not just because these things are more
rare than bills as they are introduced or nominations as they are
received or treaties presented to us for potential ratification; it is
because it is a sacred responsibility in which there is an expectation,
backed up by centuries of tradition, custom, precedent, and
understanding of our constitutional text, that we will dispose of the
case.
We will dispose of it in a way that culminates in a finding of guilty
or not guilty except in these rare instances where we lack subject
matter jurisdiction most commonly because the case has been rendered
moot, which it is not in this instance.
The particular way in which we went about this today really was crazy
and impossible to defend--absolutely impossible to defend on its
merits.
Remember, there were two articles in these impeachment charges.
Article I alleged that in eight or nine different instances in which
Secretary Mayorkas had an affirmative legal duty to detain illegal
immigrants pending adjudication of either their asylum claims or of
their argument that they might be entitled to some other form of
relief, including immigration parole, the Secretary of Homeland
Security had an affirmative duty to detain them while those decisions
were pending.
Eight or nine different statutes required that, eight or nine
different statutes he deliberately violated. He did the opposite of
what the statute required, and by doing that, he invited and
facilitated an invasion at our southern border that is unprecedented in
American history. That has been dangerous. That has resulted in all
kinds of heinous crimes being committed--loss of life, loss of
innocence, loss of property--many, many harms occurring as a result of
this, occurring as a result of his deliberate decision not only not to
do the job he was hired to do and that he swore an oath to perform well
but to do the exact opposite of what the law required.
I mentioned a little while ago the writings of Justice Story, Justice
Joseph Story, one of our early Supreme Court Justices a couple of
centuries ago. He was familiar with the Constitution at a time closer
to the Founding and also very familiar with the English legal
antecedents on which the Constitution was predicated, with the legal
terminology incorporated from English law into the American
constitutional system.
And in his great treatise on the Constitution, in section 798, he
explained a few things about impeachable offenses. And he said in
section 798:
In examining the parliamentary history of impeachments, it
will be found, that many offences, not easily definable by
law, and many of a purely political character, have been
deemed high crimes and misdemeanors worthy of this
extraordinary remedy.
This extraordinary remedy, of course, referring to impeachment. It
then recites a litany of things that would qualify for this. And,
again, he just noted, they don't necessarily have to be easily
definable by law when they are of a political nature, but he identified
some of those things that had been established through English legal
precedent--English parliamentary precedent--as worthy of impeachment
qualifying as high crimes and misdemeanors.
Among other things, he identified what he referred to as ``attempts
to subvert the fundamental laws''--attempts to subvert the fundamental
laws. Those could have broad application in all sorts of areas, but I
can think of few laws more fundamental to our Republic, to our Federal
legal system than our fundamental laws governing who may enter this
country and under what circumstances.
He went on to identify a number of other things that fit this
definition, adding to it, among other things, by saying the one thing
in particular that would meet the definition of ``high crimes and
misdemeanors'' and would thus be impeachable would be an instance in
which a lord admiral may have neglected the safeguard of the sea.
So some on the other side of the aisle have argued that, well, really
what Secretary Mayorkas did was to just not do as good of a job as he
should have and could have in enforcing the law, and that can't be a
basis for impeachment, they argue.
Some of them will invoke the line of reasoning that says
maladministration--in other words, not doing your job well--isn't a
valid basis for an impeachable offense. I am not at all sure that that
argument, even stated in the abstract, is accurate. In fact, I tend to
think that it is not because the Constitution itself assigns that job
to this branch of government--to the House as it assesses whether to
charge something as impeachable and to the Senate as it assesses
whether an impeachment passed and presented by the House warrants
conviction, removal from office.
That really is our job, and as Justice Story noted, it includes
offenses of a political character, regardless of whether they would
amount to independently prosecutable criminal offenses in a criminal
court of law sense of that word.
But in any event, even if you buy into that reason, there are those
scholars who believe that. I seem to recall Professor Alan Dershowitz,
a respected Harvard law professor from whom we have heard in past
impeachment proceedings. I believe that he believes in this approach.
Even under Professor Dershowitz's approach, he is someone for whom I
have great respect, even where I disagree with him.
Even if you were to accept that premise, this isn't just that. This
goes far beyond just maladministration. It is not just that Secretary
Mayorkas didn't do as good of a job as he could have and should have
and we wish he would have, it is that he willfully subverted what the
law required and did the exact opposite of what the law required. That
is impeachable.
It has got to be impeachable, and yet the majority leader stood up
today, and he said: I raise a point of order that impeachment article
I--again, impeachment article I is the part that deals with Secretary
Mayorkas's decision to do the exact opposite of what the law requires.
The majority leader continued: Impeachment article I does not allege
conduct that rises to the level of a high crime or misdemeanor as
required in article II, section 4, of the United States Constitution
and is therefore unconstitutional.
[[Page S2820]]
Really, I don't know how he gets there. He can't get there except by
sheer force, and the way you do something by sheer force here is you
produce a simple majority of votes from Senators declaring the
impeachment equivalent of defining the tail of a dog to be a leg.
What I found even more stunning, was when--as stunning as that first
move was and as disappointing as it was that a simple majority of
United States Senators, all from the same political party, I would add,
not my own--he somehow managed to outdo that one by later making the
same point of order with respect to article II.
Arguing that, you know, he said: I raise a point of order that
impeachment article II does not allege conduct that rises to the level
of a high crime or misdemeanor as required under article II, section 4,
of the United States Constitution and is therefore unconstitutional.
Let's remember what article II was about. Article II charged
Secretary Mayorkas with knowingly making false statements to Congress
as Congress was carrying out its oversight responsibilities with him
testifying, often under oath, to Congress.
Now, unfortunately, we never got to hear any evidence on this.
Therefore, we weren't presented with the opportunity to make a final
determination on this, but we instead had the majority simply roll
right over all of us by just declaring, ipse dixit, it is because it
is. It is because we say it is; that it is not an impeachable offense,
even if, as has been alleged and as the House impeachment managers--the
House prosecutors we sometimes call them--were denied the opportunity
to try to prove that he knowingly made false statements to Congress. To
say that that is not impeachable is breathtakingly frightening.
We have now established a precedent in the United States Senate that
if you occupy a high position of trust within the United States
Government, a Cabinet member in this instance, and you knowingly,
willfully make false statements to Congress as Congress has tried to
get to the truth about what you are doing in your job and whether or
not you are faithfully executing, implementing, and enforcing the law,
that lying to Congress in that sense, even under oath, isn't an
impeachable offense.
That precedent could suggest that we now are effectively immunized
from impeachment, doing that very thing. How are we to conduct adequate
oversight, if even the theoretical threat, the theoretical,
hypothetical, potential threat of impeachment isn't on the table?
That severely weakens the fabric of our Republic. It certainly
weakens the ability of the United States Senate to push back on abuses
by and within a coordinate branch of government. You know, when James
Madison expressed in the Federalist Papers, among other places in
Federalist 51, the government was sort of an experiment; it is an
exhibit; it is a display of human nature--there and in other Federalist
Papers, he explains things like the fact that as he continued in
Federalist 51, that if we as human beings were angels, we wouldn't need
government; if we had access to angels to run our government, we
wouldn't need all these rules to govern those responsible for
government, but, alas, we are not angels. We don't have access to
angels to run our government, so we need rules.
Madison was also a big believer in the fact that because we are not
angels, we don't have access to angels to run our government, we do
need these rules. You have got to set up a system in which power can be
made to check power, and you set up each branch with its own set of
incentives to guard against abuses in power.
I have wondered over time, as I have seen the United States Senate
gradually but very steadily over many decades voluntarily relinquishing
its power--much of it started with our work on the legislative calendar
starting in earnest really in the 1930s, continuing to the present day.
We have gradually, steadily been outsourcing a lot of our lawmaking
power to unelected, unaccountable bureaucrats--pass all sorts of laws
saying, essentially, we shall have good law with respect to issue x and
we hereby delegate to Department or Commission or Agency or functionary
y the power to promulgate rules carrying the force of generally
applicable Federal law as to issue x.
Little by little, the American people lose control over their own
government as this happens. Little by little, you start to see that
this diminishes the overall accountability of the U.S. Government. And
when Agency or Department y promulgates a particular rule carrying the
force of generally applicable Federal law, people understandably,
predictably, very consistently come to us to complain, saying: This is
killing us. This rule made by unelected, unaccountable bureaucrats is
now going to shut down my business. I am going to be deprived of life,
liberty, or property, or some combination of the three. Whether I
choose to comply or not, it is going to harm me in material ways.
And, yet, you know, Article I, Section 1, Clause 1, says that all
legislative powers herein granted shall be vested in the Congress of
the United States, which shall consist of a Senate and a House of
Representatives.
Article I, Section 7, makes abundantly clear what Article I, section
1 sets up, which is to say: You cannot make a Federal law without the
assent of both the House of Representatives and the Senate on the same
bill. They have got to the pass the same bill text and then present it
to the Chief Executive--the President of the United States--for
signature, veto, or acquiescence.
Unless you follow that formula of Article I, Section 7, you are not
supposed to be able to make a Federal law.
One of the more influential political philosophers on the founding
generation was Charles de Montesquieu, who observed that the lawmaking
power is itself nondelegable; that the task of lawmaking involves the
power to make law, not other lawmakers, because as we see to this very
day, when these things happen, when people come back to complain to us
that the administrative regulation carrying the force of generally
applicable Federal law, when it causes problems, people come and
complain to us. And then Members of Congress, predictably and
foreseeably, beat their chest. And they say: Oh, yes, those barbarians
over at Agency, Commission, Department y. We didn't mean to authorize
this. We just said make good law as to issue x; we didn't say to make
bad law.
And then, predictably, Senators, the Representatives, say something
like the following: You know what I am going to do for you,
Constituent? I am going to write them a harshly worded letter. That is
what I am going to do--as if that were our job we were sworn in to do
were to write harshly worded letters.
It is not that, of course. It is to make laws, not other lawmakers.
You know, I keep these two stacks of documents behind my desk. One
stack is small. It is usually a few inches, no more than a foot or so,
consists of the laws passed by Congress in the preceding year. It is
just, you know, a few thousand pages long.
The other stack is 13 feet tall. During a typical year, it will reach
about 100,000 pages stacked up--even on very thin paper, double-sided,
small print--about 13 feet tall, consists of last year's Federal
registry, the annual cumulative index of these Federal regulations as
they are promulgated, as they are initially released for notice and
comment and, later, as they are finalized.
Those rules carry the force of generally applicable Federal law.
Failure to abide by those can shut down your business, can result in
enormous fines. In many cases can result in your imprisonment if you
don't follow them. And yet they are not enacted themselves through the
formula prescribed by Article I, Section 7. No.
Because in that instance, we have authorized the making, not of laws
but of other lawmakers, not ourselves. And those other lawmakers to
whom we have given this assignment, while, perhaps, however well-
educated and well-intentioned, wise, specialized, well-trained they
might be, they don't stand accountable to the American people, ever.
Their name will never appear on a ballot. In fact, their name will
stand, essentially, as a secret to nearly every American, including
those who will stand accountable to those laws, who may lose life,
liberty, and property as a result of those things.
[[Page S2821]]
(Ms. HASSAN assumes the Chair.)
That is not right. We all know deep down that is not right. We know
that every time we are presented with one of these complaints by our
constituents--and we all have them. In my office, it is in nearly
constant refrain. And yet they often precipitate the predictable
harshly worded letter and not a lot else.
In other instances, they might culminate in the filing of a
resolution of disapproval under the Congressional Review Act. As fun as
those can be--as they do give us, at least, an opportunity to debate
them--those are privileged resolutions. If you follow the rules of a
Congressional Review Act, you can pretty much always get one of those
voted on. You can, at least, have an opportunity to present those here
in the U.S. Senate and to vote up or down as to whether or not you want
to disapprove of the regulation in question.
Ultimately, however, those prove dissatisfying from a constitutional
standpoint in the sense that, with very narrow exceptions, they don't
really do any good because nearly any administration whose bureaucratic
structures will promulgate the administrative rule in question will
like, for policy reasons and political reasons, the policy choice
embodied in those regulations. And, consequently, the President whose
administration promulgated that regulation being challenged under the
CRA resolution of disapproval will almost always veto any resolution of
disapproval passed by both Houses of Congress. It is very rare that
that doesn't happen.
With only one exception I can think of from a few decades ago, the
only time that works--other than that one exception that I am thinking
of--occurs when you have a holdover, when you have a new administration
and you have regulations that have been promulgated toward the tail end
of the previous administration. We had a number of those when President
Trump took office following President Obama's time in office where
regulations from the Obama era were becoming ripe for CRA resolutions
of disapproval, and we were able to get them passed by both Houses of
Congress and then signed by President Trump.
Those circumstances are pretty rare. In every other circumstance, the
voters of this great country, those subject to these administrative
regulations that are, in fact, laws, those things leave us without
redress. It is one of the reasons why I have long advocated for us to
pass a measure called the REINS Act.
If a genie appeared to me and said: You can pass any one bill now
pending in front of the U.S. Congress, it would be the REINS Act. Why?
Well, because the REINS Act would require us, by statute, to do what I
believe the Constitution already requires, what it, in fact, does
contemplate, which is: It is fine for administrative regulations to be
promulgated, to be proposed. But unless or until they are affirmatively
enacted into law by both Houses of Congress and then signed into law or
acquiesced to by the sitting President, or in the event of a veto, that
veto is overridden by two-thirds of both Houses of Congress, then it
can take effect. Short of that, no dice. You don't get a law.
These do have far-reaching effects, including the fact that, as a
Member of the Judiciary Committee, I and a few of my colleagues tried
to figure out a few years ago how many criminal offenses are on the
books. How many different provisions of Federal law prescribe criminal
penalties that can result in a criminal conviction?
We asked this question of the Congressional Research Service, the
entity to which we turn regularly in order to get answers to questions
like those. The answer came back to us in a way that I found absolutely
stunning. The answer that came back to us from the Congressional
Research Service--very talented people at the Congressional Service who
were very good at answering these questions. They did a good job doing
it, and in the end, they gave us the answer that it was possible to
achieve. They said: The answer is unknown and unknowable, but we know
that it stands at at least 300,000 separately defined criminal offenses
on the books.
Now, this does not mean that on 300,000-plus occasions both Houses of
Congress passed into law separate statute defining a criminal offense
with criminal penalties. No. In many, many of these instances--one of
the reasons why the number is so difficult to tie down is because a lot
of these are defined administratively.
So that is one area in which the U.S. Senate has been deliberately
shirking its responsibilities and handing them off to somebody else,
refusing to do the job that we have been given to do. So that is on the
legislative calendar.
We have done that time and time again. Also on the executive calendar
where we have changed the law so as to limit--changed the law or, in
some cases, adopted standing orders that have been embraced in
subsequent iterations of the Senate limiting the number of Presidential
nominees requiring confirmation.
So we have narrowed our playing field there, too, shirking our
responsibility. Even as the size of the Federal Government has
increased inexorably, we have narrowed our job. And now we have seen it
done again today in our third state of being, in our third category
where we operate as a Court of Impeachment.
Even here, where our job is really limited, we have one job in this
area: to conduct impeachment trials. There are a thousand ways you can
conduct an impeachment trial. You can conduct an impeachment trial with
the whole Senate. You can specialize the impeachment trial so that it
is heard in the first instance by a select committee with Members of
both political parties who hear the evidence and then, after doing
that, submit the whole matter for a final vote to the whole Senate.
You can hear evidence through individual witnesses. You can receive
evidence in documentary form. There are a thousand different ways to
conduct a trial, some of which allow the trial to be conducted pretty
quickly, others might take more time. But there are a thousand ways we
can do it.
And, here, as with the other two states of being--first on the
legislative calendar and then on the Executive Calendar--now as we sit
as a Court of Impeachment, we have narrowed our work again, shirking
our responsibilities again, again declining to perform our
constitutional duties.
This is shameful. I am embarrassed that we as a Senate seem so
enamored with the idea that we can't do the things given to us.
What is especially troubling about this is that, you know, we are, in
fact, a government of limited enumerated powers.
Our job is not to, as some people put it, run the country. Our job is
not to make law on any matter that we think appropriate or significant.
Our job is not just to enact legislation in any area where we think it
might redound in one way or another to the net benefit of the American
people. No. We are supposed to be a government of limited, enumerated
powers, charged with a few basic things.
We are in charge of a uniform system of weights and measures, a
system of immigration and nationality laws, regulating trade or
commerce between the several States with foreign nations and with
Indian Tribes. We are in charge of declaring war; establishing and
regulating an Army and a Navy; coming up with rules governing State
militias, which we now describe and refer to as the National Guard;
coining money and regulating the value thereof; coming up with
bankruptcy laws; postal roads; post offices; regulating in some
instances Federal land to be used for some military purpose; regulating
what we now call the District of Columbia; adopting rules governing the
regulation and disposal of territory and of other property owned by the
United States.
One of my favorite powers of Congress involves granting letters of
marque and reprisal. ``Marque'' in this instance is spelled M-A-R-Q-U-
E. We haven't done one of those in over a century. I hope we will
sometime. I think we should. A letter of marque and reprisal is
basically a hall pass issued by Congress that allows those acting
pursuant to it to engage in acts of piracy on the high seas, with
impunity offered by the United States if they are able to make it back
with whatever loot they take into the United States and then divide the
spoils and share in the spoils with the United States Government.
That is about it. There are a few other powers of Congress here and
[[Page S2822]]
there, but that is the lion's share of what the Federal Government can
do.
Of course, we occupy the most significant, prominent, dominant, and
dangerous power within that because we are the lawmaking branch. We
make the laws.
The executive branch enforces the laws we make, deferring to our
policies and enforcing the policies that we enact.
The judicial branch, headed by the Supreme Court, interprets them--
not just in the abstract but interprets them in a way so as to be able
to resolve disputes properly brought before the jurisdiction of the
courts--disputes over the meaning of Federal law.
So we have the most dangerous, prominent, dominant position. It makes
sense that the Founding Fathers entrusted that role only to us because
we happen to be the branch of government most accountable to the people
at the most regular intervals. You can fire all 435 Members of the
House every 2 years. You can fire one-third of the Members of this Body
every 2 years. It is one of the reasons why you know the Founding
Fathers considered the power that we wield the most dangerous, because
they made us subject to the most frequent and regular and direct kinds
of guarantees of accountability--that is, through elections.
So now we have somebody who has been impeached because a law that we
passed that he was charged with enforcing and administering and
implementing and executing--didn't do his job, although it falls on us
to decide that.
We have myriad instances in which that violation of the law can't be
adjudicated in court, such as this case we referred to earlier, the
United States v. Texas, where a majority of the Supreme Court of the
United States--I guess, by the way, a brilliant dissent by Justice
Alito--concluded that the State of Texas didn't have standing to
address violations of law, deviations from law by Secretary Mayorkas
and the Biden administration.
So if not us, who? There are countless instances that the courts
can't do it. The executive branch isn't going to check the executive
branch. The buck stops with us. It is our job to do this, and today, we
failed. We didn't just fail in the sense that we tried to do it and we
didn't; the majority of us, unfortunately, tried not to, went out of
our way to define our role as something that it is not, to define the
law as saying something other than what it, in fact, says so that we
can shirk our responsibilities once again. Shame on us. Shame on those
Members of this body who voted to do that today.
I wonder what future generations will say about this. I wonder how
many ways in which future generations will suffer from what we did
today.
I hope they will take this as a lesson in what not to do and soon
depart from this awful precedent because otherwise this will lead to
the shedding of tears and worse.
We are told that the Senate is apparently just too busy to conduct an
impeachment trial, just as we are about to be told that the Senate is
too busy to require the Federal Government to get a warrant before
searching the private communications of the American people
incidentally collected and stored in the FISA 702 databases. Too busy
to do those things, but I think we are about to be told that it is not
too busy to send even more money to Ukraine, where we have already sent
$113 billion--not too busy to do that; not too busy to expand FISA
without adding a warrant requirement; but just way too busy,
apparently, to do what the Senate and only the Senate can do and what
under the Constitution we must do.
Like the ghost of Christmas future in Charles Dickens' ``A Christmas
Carol,'' I hope that as we examine our future and what today's action
portends about the future of the United States and of the United States
Senate, I hope we can choose to depart from this course. While I fear
that our past will prove to be our prologue, I sure hope we won't
solidify and more deeply entrench this unwise, indefensible move that
we took today.
But I am glad we have had a chance today to set the record straight,
to make an adequate record of what really happened, and that while a
majority--a bare, slim majority--chose to excuse the inexcusable today,
some of us--nearly half of us tried to stand in front of that train and
stop it. I hope this will prove to be an aberration. Let's all pray
that it does.
Madam President, I yield the floor.
Mr. SCHUMER. Madam President.
The PRESIDING OFFICER. The majority leader.
____________________