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Constitutional scholar says GOP charges against Mayorkas don't meet impeachment bar


The House Homeland Security Committee made history this week. In a strict party-line vote, Republicans moved to advance articles of impeachment against Secretary Alejandro Mayorkas for his handling of the U.S. southern border. Only one cabinet secretary has ever been impeached before in U.S. history. To talk about the context for these proceedings, we've reached constitutional scholar and law professor Philip Bobbitt of Columbia University. Good to have you here.

PHILIP BOBBITT: Nice to be with you.

SHAPIRO: What's the actual constitutional standard for impeaching a cabinet secretary?

BOBBITT: Well, it's the same standard for all civil officers. It's treason, bribery or other high crimes and misdemeanors - that is to say, treason, which can only occur during wartime, bribery, which is the taking of a benefit for some civil or governmental act, and some constitutional crime, not an ordinary crime, that is of the magnitude of treason or bribery.

SHAPIRO: I understand the founders considered adding the word maladministration to that list, but James Madison persuaded them not to. What does it mean that the bar is higher?

BOBBITT: In this case, treason and bribery had been agreed to by the convention, and one of the delegates, George Mason, suggested that that was too narrow. It was Mason who proposed maladministration. Madison objected, and so he said maladministration simply amounted to giving the Congress the power to remove the president over policy differences. Mason saw this, and he immediately agrees. And then after that, we get the terms other high crimes and misdemeanors.

SHAPIRO: So the intent of the founders is clear. The bar is high. And when we look at the articles of impeachment against Mayorkas, they accuse him of, quote, "willful and systemic refusal to comply with the law" in enforcing border policy as well as, quote, "breach of public trust." Do you think Republicans have cleared the bar? Have they made the case?

BOBBITT: No. I think they've moved the bar. (Laughter) What they have done is to take discretionary acts by an executive official, acts with which they disagree and with whose consequences they expressed some alarm, and made that into a constitutional crime.

SHAPIRO: Well, as I mentioned, there has only been one other impeachment of a cabinet secretary in history. This was against President Ulysses S. Grant's war secretary, William Belknap, in 1876. When you compare and contrast these two episodes, what do you think that chapter of U.S. history can tell us about this one?

BOBBITT: Well, it's an interesting case for two reasons. First of all, Belknap had clearly taken extensive bribes. Belknap had admitted this. He went to the president. He resigned, but the Congress went ahead with the impeachment, and that's the second interesting point. Belknap was acquitted probably because he was no longer a civil officer, and we know this from the people who spoke about this in the Senate trial.

SHAPIRO: And when you compare the evidence in that case to the evidence that Republicans have laid out in this one?

BOBBITT: The flaw here isn't evidentiary. The flaw is the charge. The Homeland Security Committee has not charged a constitutional offense, so the fact that they are distressed and enraged by the Secretary's actions doesn't really attach to the impeachment clause.

SHAPIRO: We're living in a moment where impeachment has become much more common. Former President Donald Trump was impeached twice. House Republicans may even go on to try to impeach President Biden. Are there consequences to this tool being used more often?

BOBBITT: Not necessarily. If you had a constitutional crime of the magnitude with which Donald Trump was charged, then it should be charged and tried as frequently as it occurs. It's not the frequency per se. It's the use of impeachment as a political stunt.

SHAPIRO: But isn't a political stunt in the eye of the beholder?

BOBBITT: I hope not.

SHAPIRO: Well, go on. As a constitutional scholar, tell me why you characterize this as a political stunt.

BOBBITT: Because the law is quite clear. It's not always clear. Sometimes there are hard cases. But when the law is clear, we expect our public officials to obey it, even if it presents a temporary outcome with which they find disagreeable.

SHAPIRO: That's Columbia law professor Philip Bobbitt. He co-authored an updated edition of the classic legal text, "Impeachment: A Handbook." Thank you so much for talking with us.

BOBBITT: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
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