Key Questions Linger Leading Up to Senate Vote on Mayorkas Impeachment Trial

All eyes are on the Senate, where in just days, lawmakers will decide whether to proceed with a trial on the conviction and removal of Alejandro Mayorkas as President Joe Biden’s top border official.

Mayorkas was not only the first secretary at the Department of Homeland Security to be impeached by the House on Feb. 15 but also the first Cabinet official to be indicted by the House in 150 years.

Many questions remain in the lead-up to the Thursday proceedings, including if Democrats have the votes to potentially avoid going to trial altogether and if Republicans intend to rally together.

Will Mayorkas face a trial?

House managers in the case will deliver the two articles of impeachment to the upper chamber on Wednesday, nearly two months since the lower chamber impeached Mayorkas.

Senate procedures dictate that the upper chamber meet the day after articles have been delivered. Senators would then be sworn in as jurors, and an impeachment trial would follow, with representatives serving as the prosecution.

The Democratic-controlled Senate has floated dismissing the articles, which has not been done in more than 20 impeachment hearings in the body’s history. It could also move to launch a trial committee and refer the articles to that panel.

To move on tabling the trial, Democrats would only need a simple 51-vote majority. However, it would require that Democrats do not defect.

Democrats hold 48 of the 100 Senate seats and Republicans 49 seats. The remaining three members are independents who caucus with the Democrats, which comes out to a 51-49 majority.

Sen. Patty Murray (D-WA) will preside over any potential trial as Senate President Pro Tempore.

Lora Ries, the former acting DHS deputy chief of staff who now oversees the conservative Heritage Foundation’s border security and immigration center, said the Senate is obligated to consider what has been brought before them and ought to vote to have a trial.

“Senators have a constitutional duty to hold a real impeachment trial, publicly examine the evidence, and act in the best interests of their constituents,” said Ries. “Voting to table or dismiss is a violation of that duty, an endorsement of the border crisis Mayorkas has created, and would further his cover-up.”

Will any Democrats or Republicans break with their party?

It is possible but unlikely given that some Republicans who originally dissented did so before the Feb. 15 House vote and may since have had a change of heart seeing as how the House got impeachment through.

Senate Majority Leader Chuck Schumer (D-NY) told members in a “Dear Colleague” letter sent last Friday that confirmed the Senate would receive the articles Wednesday when Mayorkas is also scheduled to appear on Capitol Hill for a pair of congressional hearings related to the DHS budget.

To date, the exact number of Republicans who are opposed to impeachment remains unclear. Sen. Kevin Cramer (R-ND) said in February that impeaching Mayorkas was “the dumbest exercise and use of time.”

In January, Sen. Mitt Romney (R-UT) said he had not seen the constitutional standard met to move forward with removing Mayorkas from office.

“From what I can tell, he’s carrying out the policies of his boss, the president, for which you don’t impeach the secretary,” Romney said.

Other centrist Republicans, including Sen. Susan Collins (ME) and Lisa Murkowski (AK), will also be votes to watch given that they have not supported impeachment.

Moderate Democrats facing difficult reelections in November could lean more to the middle and vote to hold a trial in hopes of appealing to voters who are concerned about the border crisis. Republicans could also force tough votes on pretrial points of order.

The House impeached Mayorkas on charges of refusing to enforce the law and a breach of public trust. More than 8 million non-U.S. citizens have been encountered attempting to enter the United States in the three years since Biden took office, the highest figure in any three-year period.

Republicans in the House are also upping the pressure on colleagues in the Senate, and Heritage Action, the advocacy arm of Heritage Foundation, told the Washington Examiner on Monday that it will target any Senate Republican who is on the fence.

Will Mayorkas lose his job?

Mayorkas is very unlikely to be convicted in the Senate, which would require a two-thirds majority vote and therefore significant Democratic support.

The White House has backed Mayorkas during the impeachment proceedings, and Biden’s Cabinet secretary has shown no indication he’s willing to step down.

Mayorkas has fired back many times at lawmakers in public settings who have called for him to resign or asked if he would step down if impeached.

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In a House Judiciary Committee hearing on July 26, 2023, Mayorkas said he would not resign and was “incredibly proud of the work that is being done at the Department of Homeland Security.”

DHS did not respond to a request for comment on the secretary’s plans for the near future though the department has stated in the past that he remains focused on his job.