Mr. Speaker, extreme MAGA Republicans have engaged in a cynical and unserious attempt to impeach Homeland Security Secretary Mayorkas. Their report to accompany H. Res. 863 resorted to sloppy misrepresentations in an attempt to justify…
Mr. Speaker, extreme MAGA Republicans have engaged in a cynical and unserious attempt to impeach Homeland Security Secretary Mayorkas. Their report to accompany H. Res. 863 resorted to sloppy misrepresentations in an attempt to justify this baseless, political stunt.
For example, the report misquoted Professor Frank Bowman, who testified before the Committee on Homeland Security on January 10, 2024. Professor Bowman testified that the Constitution did not support the impeachment of Secretary Mayorkas over mere policy differences. The majority report, however, twists a passage of Professor Bowman's book on impeachment and uses it out of context to suggest policy differences were grounds for impeachment.
Republicans also tried to misrepresent Professor Bowman's writings during the hearing, but they did not afford Professor Bowman an opportunity to explain his work. I submitted clarifying questions to Professor Bowman to supplement the hearing record, but the majority did not transmit those questions to Professor Bowman before the legislative report was filed in the House.
I include in the Record Professor Bowman's responses to my questions to make the professor's thoughts on impeachment over policy differences abundantly clear, since the Republican majority cannot be bothered to conduct a proper investigation with a complete record.
Committee on Homeland Security, U.S. House of Representatives
Responses to Supplemental Questions
Frank O. Bowman III, University of Missouri Curators' Distinguished Professor Emeritus, Floyd R. Gibson Missouri Endowed Professor Emeritus
(Academic titles provided for identification purposes only. The opinions expressed herein are those of the author, do not reflect those of any other person or entity, and are not endorsed by the University
of Missouri.)
Question #1 from Mr. Thompson: Republicans have portrayed
your previous academic writing as confirming their position
that mere policy differences may be a ground for impeachment.
In particular, that ``displeasure with administration
personnel and policy'' may be sufficient to warrant
impeachment. Is that correct?
I have never written that mere policy differences would be
an adequate ground for impeachment. To the contrary, I join
with the consensus view of constitutional scholars that
ordinary policy differences are not a proper ground for
impeachment. Indeed, this general principle is particularly
applicable to a disagreement on policy between a presidential
administration and a political party controlling only one
house of Congress, and that by the very narrowest of margins.
The quotation to which the question alludes, one mentioned
by Chairman Green and Rep. Bishop, occurs in the final
paragraph of Chapter 4 of the second edition of my book, High
Crimes & Misdemeanors: A History of Impeachment for the Age
of Trump (Cambridge Univ. Press 2023). Both congressmen take
the snippet of text they quote entirely out of context.
In the referenced section of Chapter 4, I discuss the only
prior impeachment of a U.S. cabinet officer, President
Ulysses Grant's Secretary of War, William Belknap. Prior to
the quoted passage, I explained why no cabinet officer before
or after Belknap has been impeached. The primary, and
obvious, reason is that, as I wrote, any cabinet officer
``whose behavior veered anywhere near an impeachable zone''
was simply removed by the President. Which is what happened
to Belknap. He took a bribe. When President Grant found out,
he fired Belknap. But the House, controlled by Democrats for
the first time since the Civil War, impeached the Secretary
anyway as a means of politically damaging President Grant and
by extension the Republicans in the upcoming 1876 election.
In the final paragraph of Chapter 4, I was, of course, not
saying that mere ``displeasure'' with either a person or a
policy is a constitutionally acceptable ground for
impeachment. Rather, when a subordinate official has actually
committed ``treason, bribery, or other high crimes and
misdemeanors''
(as Secretary of War Belknap incontestably did), Congress
might elect to proceed with impeachment to signal its
displeasure.
Secretary Mayorkas has not committed any impeachable
offense. Impeaching a cabinet officer innocent of ``treason,
bribery, or other high crimes and misdemeanors'' to indicate
displeasure with administration policy or the officer's
administration of that policy would be a profoundly anti-
constitutional act.
Question #2 from Mr. Thompson: In the past, you have
written that impeachable ``high crimes and misdemeanors'' can
be interpreted to include ``serious executive misconduct,
including . . . betrayal of the nation's foreign policy
interests'' such as when a president subordinates the
nation's interests to foreign interests. Republican Rep.
Guest suggested that you have written in the past about
foreign policy differences as grounds for the first
impeachment of President Trump--what you describe as Trump's
``rolling destruction of American foreign policy''--and that
your past writing contradicts your testimony at the January
10, 2024, hearing. Are foreign policy differences an
impeachable offense, and how do foreign policy differences
differ from ordinary policy differences?
I have written that one of the accepted historical
categories of impeachable conduct, in both the pre-1787
United Kingdom and in the United States, has been ``betrayal
of the nation's foreign policy interests.'' However, in
saying this, I was obviously not saying that ordinary policy
differences between a presidential administration and the
opposing political party become impeachable simply because
the subject matter of the disagreement is foreign, rather
than domestic, policy.
To the contrary, long precedent establishes that, in the
U.S. impeachment context, ``betrayal of the nation's foreign
policy interests'' has had certain identifying features.
First, for impeachment purposes, a nation's ``foreign
policy interests'' are not merely the transient preferences
of a political party or faction. Rather, they are enduring
interests about which there is a broad societal consensus,
ideally one embodied in statutes, treaties, the practice of
multiple presidential administrations, and (where applicable)
the views of a nation's diplomats, foreign policy experts or
professionals.
Second, the word ``betrayal'' implies, not merely changing
policy or adopting policy views contrary to one's political
adversaries, but subverting the national interest for
illegitimate, often personal, motives.
British impeachments that illustrate these features include
the following.
In 1667, after an expensive and unnecessary war with the
Dutch, the Earl of Clarendon was impeached in part for
seeking payments from France to the British crown to evade
parliamentary controls on royal finance.
In 1678, the Earl of Danby was impeached for soliciting--on
behalf of the English King Charles II--a bribe from Louis XIV
of France in return for English neutrality in the Franco-
Dutch War.
Both Clarendon and Danby's solicitations not only undercut
longstanding British foreign policy objectives and subjected
the British monarch to undue foreign influence, but were a
bald attempt to avoid a significant parliamentary constraint
on royal overreach--the requirement that the Crown obtain
``supplies'' (i.e., funding in addition to the monarch's
private wealth) through the legislature.
More relevant to the present case are the American
impeachments of Senator William Blount in 1797-98 and of
President Donald Trump in 2020.
Sen. William Blount: Blount, then a U.S. senator, concocted
a scheme to enrich himself by giving Great Britain control of
the territories of Louisiana and Florida. Blount's scheme was
obviously contrary to contemporary U.S. foreign policy
interests inasmuch as the American government and populace
wanted to expand into Louisiana and Florida, or at the very
least to prevent Great Britain from assuming control over
those territories. In addition, the articles of impeachment
against Blount charged him with violations of the Neutrality
Act of 1794, and also with violation of the Treaty of
Friendship, Limits, and Navigation between the United States
and Spain (because his scheme involved stirring up Native
American tribes to attack Spanish officials and interests).
Not only was Blount's scheme undeniably contrary to U.S.
foreign policy interests, and to multiple treaty obligations,
but it was a ``betrayal'' in the most obvious sense. Blount
tried to sell out the interests of his country for personal
financial gain.
Although Blount was acquitted by the Senate, the historical
consensus is that the verdict turned on the decision that
senators are not ``civil officers'' subject to the
impeachment remedy under Article II, Section 4 of the
Constitution.
President Donald Trump:
President Trump's first impeachment involved two articles,
the first charging that Trump committed ``high crimes and
misdemeanors'' in relation to his scheme to coerce the
government of Ukraine into announcing investigations into
Trump's likely presidential opponent, Joe Biden, and the
second charging obstruction of Congress. The first article
was captioned ``Abuse of Power,'' but as I have written, it
``braided together three themes . . . corruption, damage to
foreign policy interests, and injury to the democratic
process. As the first article of impeachment summarized the
matter:
``President Trump abused the powers of the Presidency by
ignoring and injuring national security and other vital
national interests to obtain an improper personal political
benefit. He has also betrayed the Nation by abusing his high
office to enlist a foreign power in corrupting democratic
elections.''
The ``national security and other vital national
interests'' alluded to in the article were the interest of
the United States in supporting, militarily and
diplomatically, a country threatened, and indeed physically
invaded, by Russia, a longstanding geopolitical opponent of
the United States, together with the interest of the United
States in preventing Russian territorial expansion up to the
borders of the countries of the NATO alliance.
These objectives had been endorsed as national security
interests of the United States over multiple presidential
administrations through repeated bipartisan approval of
legislation authorizing military and security aid to Ukraine.
They were also endorsed by the entire diplomatic and national
security apparatus of the U.S government before and during
the Trump Administration itself. For example, when Trump's
White House Office of Management and Budget (OMB) placed a
hold on congressionally mandated aid to Ukraine in the July
2019 as part of President Trump's scheme to coerce Ukraine,
every relevant agency of Trump's own administration except
OMB questioned the hold and supported military assistance to
Ukraine as being in the national security interest of the
United States.
Thus, Trump's first impeachment precisely matches the
template for ``betrayal of the nation's foreign policy
interests'' described above.
First, the foreign policy interests of the United States in
that case were enduring interests embraced by multiple
presidential administrations, endorsed by the foreign policy
professionals of the executive branch, and manifested in
bipartisan legislation enacted by multiple U.S. congresses.
Second, and critically, the ``betrayal'' of U.S. interests
consisted of subverting the national interest for
illegitimate personal motives--securing a personal political
advantage over a potential political rival. In Trump's case,
the betrayal was doubly severe because it amounted to an
effort to use presidential power to corrupt the democratic
electoral process.
Secretary Mayorkas: Nothing alleged against Secretary
Mayorkas meets the traditional criteria for impeachment based
on ``betrayal of the nation's foreign policy interests.'' The
most that can be said against him is that he has executed the
policy preferences of President Joe Biden in relation to
immigration and border control issues and that the political
party in control of the House of Representatives disapproves
of those policy preferences. There is no indication that the
Secretary's actions, or indeed the Biden Administration's
policy choices, are contrary to established national foreign
policy interests. To the contrary, U.S. policy regarding
immigration and border control has varied from administration
to administration and congress to congress as the challenges,
needs, and preferences of the country have varied. More
importantly, there is absolutely no indication that Secretary
Mayorkas has taken any official action for corrupt or
illegitimate personal motives.
To repeat the central point, ordinary policy differences
between a presidential administration and the opposing
political party do not become impeachable simply because the
subject matter of the disagreement is foreign, rather than
domestic, policy.
Question #3 from Mr. Thompson: Rep. Crane suggested that
Secretary Mayorkas has betrayed the Nation, and that betrayal
of the nation would be sufficient to warrant impeachment. Are
you aware of any evidence that Secretary Mayorkas has
betrayed the United States? And Rep. Crane further suggested
that you said ``betrayal of the Nation'' is a potential
ground for impeachment, whereas you actually said ``betrayal
of the nation's foreign policy interests'' is a ground for
impeachment. What precisely did you mean?
I did not say in my testimony to the Committee or elsewhere
that that ``betrayal of the nation'' is a ground for
impeachment. I have agreed with Charles Black that one decent
definition of ``high crimes and misdemeanors'' that covers
most cases is offenses ``which are extremely serious, which
in some way corrupt or subvert the political and governmental
process, and which are plainly wrong in themselves to a
person of honor, or to a good citizen, regardless of words on
the statute books.'' Nothing alleged against Secretary
Mayorkas meets this general definition of impeachable
conduct.
I have also written that one specific category of
impeachable ``high crimes and misdemeanors'' is ``betrayal of
the nation's foreign policy interests.'' In my previous
answer, I explain what is meant by that phrase for purposes
of impeachment and I demonstrate why Secretary Mayorkas'
conduct does not fall within it.
Finally, I am aware of no evidence that Secretary Mayorkas
has betrayed the nation. To the contrary, based on the facts
of which I am aware, Secretary Mayorkas appears to be a
capable, dedicated public servant trying as best he can to
carry out the policy priorities of the President of the
United States and to manage the perennial and intractable
problems related to immigration and control of the U.S.
southern border.