Category: Mark Green

GOP’s ‘dereliction of duty’ impeachment argument gets skeptical reviews 

Posted on (Updated by Rebecca Beitsch

Republicans eager to impeach a Biden administration official have rallied around a new phrase to justify the rarely used move, accusing President Biden and Homeland Security Secretary Alejandro Mayorkas of “dereliction of duty.” 

The term, borrowed from the military, allows a court martial to punish service members who fail to obey orders or carry out their duties. 

But experts say the GOP’s basis for removing either man from office is an odd fit for impeachment, which requires demonstrating high crimes or misdemeanors. 

“It sounds quasi-official — it has a sort of military ring to it. But it's not as though high crimes and misdemeanors and dereliction of duty go together. … It's not traditionally one of the impeachment concepts that you would find in the panoply of presidential mistakes,” said Claire Finkelstein, a law professor at the University of Pennsylvania who specializes in national security law and democratic governance.  

“They're looking for a phrase that will kind of draw people in because it sounds semi-official, but will not actually require them to say something true and correct, like, ‘The President has actually done such and such,’” she added. 

The impeachment resolution for Biden introduced by Rep. Lauren Boebert (R-Colo.) accuses Biden of dereliction of duty and abuses of power in connection with how he has handled the border. 

“Since his first day in office, President Biden has trampled on the Constitution through his dereliction of duty under Article 2, to take care that the laws be faithfully executed. Instead of enforcing our immigration laws, he has lawlessly ignored them,” Boebert said on the House floor this month before Republicans voted to refer the measure to committee.  

Each of the four impeachment resolutions targeting Mayorkas similarly accuses him of violating his oath of office by failing to enforce immigration laws. 

The House Homeland Security Committee, which has been tasked with an investigation that would be used as the basis for any impeachment effort undertaken by House Judiciary, likewise kicked off its five-step plan with a phase dedicated to reviewing dereliction of duty. 

“The blatant disregard for the Constitution of the United States, which states that the United States Congress passes the laws and the executive branch executes those laws, is just scratching the surface to the harm Secretary Mayorkas’s dereliction of duty has done to our country,” said Mark Green (R-Tenn.), the committee's chairman, in a press conference earlier this month kicking off the formal investigation. 

“Mayorkas’s dereliction of duty has placed the safety of Americans’ second to his own personal agenda," Green added.

For Democrats, the GOP complaints over how the administration is applying — or failing to apply — the laws passed by Congress show the underlying dispute is a policy matter and therefore insufficient grounds for impeachment. 

“Dereliction of duty is something that they have created out of whole cloth,” said Rep. Dan Goldman (D-N.Y.), who served as a lead counsel to Democrats in the first impeachment of former President Trump before being elected to Congress. 

“It has never been a grounds for impeachment. It is not a high crime and misdemeanor, and it is essentially arguing that they don't like the way that President Biden and Secretary Mayorkas have been handling their jobs, which, unfortunately for them, is the consequence of elections,” Goldman said. 

Impeachment proceedings have been used four times for a president and once for a cabinet secretary. 

There are different interpretations of what constitutes a high crime or misdemeanor, and Finkelstein said while impeachment can be used for “bad acts that are not criminal, very often the impeachment charges could also be charged as crimes.” 

“President Biden and Secretary Mayorkas haven't violated the law. And I suspect that members of the GOP and Congress know that full well, and so they don't want to use any term that suggests that there may be a legal violation here. And so they're using this sort of made-up term that has a quasi-military frame to sound vaguely official, but it's really nothing that corresponds to what we would understand from the history of impeachment as a high crime and misdemeanor as the framers would have conceived,” she said. 

The dereliction of duty argument has taken a greater focus in recent weeks amid waning numbers of people arriving at the border. Earlier this year, many in the GOP argued that Mayorkas failed to follow a law that requires perfection at the border to achieve “operational control.” 

Republicans have become more focused on arguing that Biden officials have violated immigration laws, particularly those dealing with detaining and releasing migrants that arrive at the border. 

They also see a wave of fentanyl deaths as a failure to secure the border, though the vast majority of fentanyl that enters the U.S. is believed to come through ports of entry. 

The Department of Homeland Security has argued Mayorkas has acted within his authority because the U.S. simply doesn't have the capacity to detain every person that seeks to enter the country, while parole laws allow DHS to permit some migrants to enter the U.S. while they await a determination in immigration court as to securing a more permanent legal status. The department has repeatedly encouraged Congress to take action to update immigration laws. 

The White House, meanwhile, dismissed Boebert’s resolution as “staging baseless political stunts.”  

“What you would need in order to move forward with impeachment is some finding that they have violated the law,” Goldman said. 

“So the notion that he’s violated his oath of office is just simply saying that he in their view is not following the law, but what it amounts to without any evidence — and they have none — is just a disagreement about how we're dealing with the influx of migrants into this country who are largely escaping completely devastated governments [and] catastrophic situations,” he said, adding that the Biden administration has tried to deal with that “in a humane way.” 

When asked about the legal underpinnings of dereliction of duty by The Hill, Green pointed to the statutes governing the military and the Uniform Code of Military Justice (UCMJ). 

“The United States is not secure. His job is to secure the United States. He's failed. That's a dereliction of his duty,” Green said, noting the oath he took when entering West Point. 

“Mayorkas’s oath is the same, right? It's not to the geography of America. It's not to the flag. It’s to the Constitution, the idea of America and to the way the Constitution orchestrates how the government is to work.”  

The roots in the Uniform Code of Military Justice could be problematic for making a case. 

“Neither Biden nor Mayorkas are subject to the UCMJ because they’re both civilians,” Finkelstein said. “Dereliction of duty as a military term does not apply to the Secretary of Homeland Security, nor does it apply to the president.” 

Impatience, however, is growing among some in the Republican Party.  

Lawmakers have introduced 11 impeachment resolutions for various Biden administration officials in the past two months. 

“I would hope that it would be this year — and very soon,” Boebert told reporters last week.  

Rep. Adam Schiff (D-Calif.), who served as an impeachment manager for Trump’s first impeachment, dismissed the efforts as another example of Republicans “dragging down the institution of Congress.” 

“I am concerned that as they always do, they use a process that is properly applied as a precedent to abuse the process. But this is all about ingratiating yourself among MAGA members and Trump followers and it's disgraceful,” he said. 

“It’s consuming the time of Congress to keep going through these right-wing exercises designed to gain Trump's favor.” 

House GOP inches closer to Mayorkas impeachment amid discord in conference

Posted on (Updated by Rebecca Beitsch

House Republicans inched closer this week toward impeaching Homeland Security Secretary Alejandro Mayorkas, officially launching an investigation that would serve as the basis for any inquiry.

But conservative supporters of the effort still face enormous hurdles, including a reluctance of leadership to take such a drastic step and the continued opposition from more moderate lawmakers in the GOP conference — barriers that even the loudest Mayorkas critics have been forced to acknowledge. 

On Wednesday, Republicans on the House Homeland Security Committee said they would review Mayorkas’s performance through a five-phase plan, which Chairman Mark Green (R-Tenn.) said could be completed in a matter of 11 or 12 weeks.

“His policies have resulted in a humanitarian crisis this country has never seen,” Green said at a press conference.  

“Today's hearing will begin the process of digging into all of the details. The cause and effect of Alejandro Mayorkas’s dereliction of duty. I hope the American people will listen intently. I hope the press will report this, honestly. I hope the president of the United States, the commander in chief charged with the security and protection of this country, will listen. He can't possibly know of all of these failures of Mayorkas and have not fired him already.”

It’s a process that faces a complex path in the House — and one that’s already highlighted several layers of division within the GOP conference. Not only is there discord between impeachment supporters and opponents, but there’s also growing tension among Mayorkas’s most vocal critics, all of whom seem to want to play a prominent role in the effort to oust him. 

“We don't have the votes,” Rep. Matt Gaetz (R-Fla.) said Tuesday. Asked what would change the minds of the Republican opponents, he offered a biting criticism of his centrist colleagues.  

“An embrace of logic and reason,” he said.  

Green’s presser was followed by a hearing titled “Open Borders, Closed Case: Secretary Mayorkas’ Dereliction of Duty on the Border Crisis.”

Democrats argued the hearing’s name alone shows Republicans have already reached a conclusion on whether to take the dramatic step of impeaching a cabinet secretary — an action not seen since the 1870s.

“You may have a difference of opinion as to how the United States should process our asylum applicants. But the notion that that difference of a policy opinion would be the basis for a quote unquote, ‘case closed’ that Secretary Mayorkas is violating his duty, is preposterous and it is not any basis for impeachment,” said Rep. Dan Goldman (D-N.Y.), who before entering Congress worked as lead counsel for the first impeachment inquiry against former President Trump.

The move, six months into GOP leadership of the House, follows wrangling within the conference over how speedily to pursue the topic.

While a slew of lawmakers introduced impeachment resolutions days after the contentious vote to give the gavel to House Speaker Kevin McCarthy (R-Calif.), the most recent effort was offered by Rep. Marjorie Taylor Greene (R-Ga.), a sign of discontent among those eager to speed ahead.

It also comes as border numbers have dropped in the weeks following the May lifting of a policy that allowed the U.S. to quickly deny entry to would-be asylum seekers, bucking widespread predictions of a surge of migrants. The repeal of that policy, however, was paired with the reintroduction of consequences for those caught wrongly crossing the border.

“The number of Border Patrol encounters have plummeted by 70 percent since the Biden administration ended Title 42 last month. The number of overall border encounters have dropped by 50 percent in that time, due in large part to [Homeland Security's] hard work under Secretary Mayorkas’s leadership,” ranking member Bennie Thompson (D-Miss.) said during the hearing.

“Calling a hearing and saying ‘case closed’ before you’ve heard any testimony is not legitimate oversight. ... It’s about House Republican leadership catering to its most extreme MAGA members, who want to impeach someone — anyone at all. It’s about trying to make good on GOP backroom deals to elect a Speaker, raise the debt ceiling and stave off a mutiny in the Republican ranks.”

The House Homeland Security Committee doesn’t have the power to ignite an impeachment inquiry. That task falls to the House Judiciary Committee.

Green has cast the investigation as an effort that will be handed off to the other panel and ultimately brought to fruition by Judiciary Chairman Jim Jordan (R-Ohio). 

The firebrand Georgia congresswoman, however, offered her impeachment resolution with a tweet that included an emoji of a slice of cake, a reference to earlier comments that the debt ceiling package would be more appealing if it included “dessert” like an impeachment of Mayorkas or FBI Director Christopher Wray. 

The move was a reflection of impatience from some in the GOP, even as McCarthy has largely stuck to comments he made while visiting the border late last year stressing the need to investigate. 

“I know people are very frustrated with [Mayorkas],” McCarthy told CNN last month, but added that any impeachment process shouldn’t be pursued “for political reasons.”

Rep. Andy Biggs (R-Ariz.), former head of the far-right Freedom Caucus, suggested the Speaker is moving closer toward backing the impeachment effort. 

"McCarthy has loosened up on that. Whereas quite some time ago he was a no, now he’s kinda saying — kinda saying — yes,” Biggs said. Other reluctant Republicans are also shifting, he said. 

“There are people who were an absolute ‘no’ on it even a few weeks ago, and now told me that they're moveable,” he said. “There's probably two or three people that I'm trying to work on, see if I can move them my way. And if those two or three come along, I think then we're ready to go.”

Green sidestepped questions over whether the caucus would be able to secure the votes to impeach Mayorkas. 

“I would say it’s intuitively obvious to the casual observer, that Republicans are individualists and we think independently, we’re not robots being told by a Speaker how to vote,” he said in a nod to the standstill on the House floor led by a group of far-right members who stalled a vote on a GOP bill on gas stoves as a way to voice frustration with McCarthy's handling of the debt ceiling. 

“And so, there are many people with differences of opinions about this. And, you know, I'm in a leadership position, and from my leadership position, the direction of our committee is to get to the facts.”

The Department of Homeland Security has pushed back on GOP arguments and has largely blamed Congress for issues at the border.

“The immigration system has been terribly broken and outdated for decades. That is something about which everyone agrees, and it is my hope that they take that problem, and they fix it once and for all. In the meantime, within a broken system, we are doing everything that we can to increase its efficiency, to provide humanitarian relief when the law permits and to also deliver an enforcement consequence when the law dictates,” Mayorkas said earlier this year during an appearance on MSNBC.

“That is exactly what we are doing, and as far as I am concerned, I will continue to do that with tremendous pride with the people with whom I work."  

Green said his five-point plan includes investigations into cartels as well as the financial cost associated with migration.

“The guy has got to go,” Green said.

“We're going to hold him accountable. And if the president picks another guy that does this kind of stuff, we'll do what we have to do there too.”

Greene vs Green: silencing sparks round of GOP infighting

Posted on (Updated by Rebecca Beitsch

Comments from Rep. Marjorie Taylor Greene (R-Ga.) this week again presented a challenge to GOP leadership after she was silenced Wednesday following an exchange with Homeland Security Secretary Alejandro Mayorkas whom she accused of being a liar.

Greene’s comments pushed Democrats on the House Homeland Security Committee to move to take down her words, a ruling that blocks a lawmaker from being recognized to speak during a hearing. 

Chair Mark Green (R-Tenn.) agreed the speech violated House rules by attacking someone’s character, appearing not to immediately realize a move to “take down” her comments versus striking them from the record would terminate her right to speak again. 

Greene on Thursday called the decision unfair, particularly because a series of Republican lawmakers had spent their time accusing Mayorkas of being dishonest before Congress. It’s a claim Democrats have dismissed as a weak argument the GOP is exploring ahead of a possible impeachment of the secretary.

“I think it's not fair. Especially our Chair, Mark Green, and others, were also accusing Secretary Mayorkas of lying, calling him a liar. Congressman Green also called him incompetent. These are all impugning his character also, which is what they claimed were the rules,” she said in response to a question from The Hill. 

“I think silencing me was extremely unfair. And I think it showed weakness from Republicans on the committee.”

Two separate comments from Greene on Wednesday brought proceedings to a roughly 20-minute halt. 

She first accused Rep. Eric Swalwell (D-Calif.) of cheating on his wife with a Chinese spy — a charge the California lawmaker vehemently denied and a comment Democrats also challenged, which Republicans on the panel shot down in a party-line vote.

Minutes later, she called Mayorkas a liar while accusing the secretary of failing to work to stem the flow of fentanyl into the U.S.

“You’re a liar. You are letting this go on, and the numbers prove it,” she said.

Green, speaking with The Hill on Wednesday after the hearing, said while other members made similar comments about Mayorkas, they were more carefully tailored.

“Well, you just attack the problem. You don't attack the person. Note that I said Mayorkas lied to Congress. I didn't say Mayorkas was a liar. No one objected to me saying, ‘You gave false testimony.’ Or, ‘You lied,’ but they would object if I said, ‘You're a liar.’ Because that's attacking the person as opposed to what he did or said. So that's the subtle difference,” he said.

The chair ended Wednesday’s hearing with a call for greater civility, saying, “We do need to dial the rhetoric down in the country and apparently in the committee.”

On Thursday morning, the Georgia lawmaker said she planned to speak to Green on the floor — a conversation she later said changed little.

“He basically said that we have two different styles. And so we have a disagreement still about what took place yesterday. But you know, I'm still new to committees,” Greene said, nodding to her last session in Congress where she was removed from her posts. 

“So I'll make sure that I'm making sure I'm following the rules, which I do believe is important, but at the same time, I'm still going to keep pushing.”

According to reporting from CNN, sources close to Green said he privately reprimanded Greene and would contemplate asking Speaker Kevin McCarthy (R-Calif.) to remove her from the panel if something similar happened again.

But Greene dismissed that possibility, noting that she had spoken with McCarthy. 

“Speaker McCarthy's never going to let that happen,” she said, adding that “he agreed with me.” 

Reached for comment Thursday, a spokeswoman for the committee said, “Chairman Green looks forward to Congresswoman Greene’s full participation in the plethora of upcoming committee activities to get answers for the American people on the Mayorkas border crisis.”

McCarthy’s office did not immediately respond to a request for comment.

Democrats on Thursday cast the episode as another example of Republicans elevating the Trump-aligned MAGA (Make America Great Again) wing of the party.

"The extreme MAGA Republicans are showing the American people who they are. They're not even trying to hide their extremism. And Exhibit A is Marjorie Taylor Greene. She is totally out of control. But they don't care. The leadership apparently supports Marjorie Taylor Greene,” House Minority Leader Hakeem Jeffries (D-N.Y.) said at a press conference.

“The rank-and-file Republicans apparently support Marjorie Taylor Greene. She's allowed to lie. She's allowed to debase the institution.”

Rep. Dan Goldman (D-N.Y.), who served as a staffer to Democrats during former President Trump’s first impeachment, said Republicans have done little to demonstrate that Mayorkas lied under oath — the underlying charge of their questions.

GOP lawmakers have for months asked Mayorkas whether he has operational control of the border, looking for any inconsistencies in his statements. They point to a 2006 law that defines operational control as the prevention of all unlawful entries, a standard of perfection that has never been met.

“They seem to be trying to create some sort of record of him making false statements under oath, but their own statements undermine those accusations, and there's no basis for them to proceed with impeachment,” he told The Hill Wednesday.

“I frankly was very disappointed with the tenor of the entire hearing. And the ad hominem insults and attacks on the secretary is just a shameful demonstration of a lack of respect for a cabinet official.”

Heated GOP grilling of Mayorkas leads to pledge to ‘dial the rhetoric down’

Posted on (Updated by Rebecca Beitsch

Republicans gave a preview Wednesday of a still materializing impeachment case against Homeland Security Secretary Alejandro Mayorkas, zeroing in on a 2006 law that requires a standard of perfection at the border.

But what started as a fiery hearing filled with attacks on Mayorkas ended with promises to tone down the rhetoric and move towards civility in the House Homeland Security Committee — a panel with numerous members who have pledged to remove the secretary from office.

The GOP on Wednesday repeatedly referenced the Secure Fence Act of 2006, a law that defines operational control as achieved when there is not a single unlawful entry of either migrants or drugs at the border. 

Chair Mark Green (R-Tenn.) and other Republicans played numerous clips of Mayorkas previously answering questions about whether he has maintained operational control of the border — a tactic that comes after Green reportedly told donors at a fundraiser to “get the popcorn” ready ahead of the hearing.

Green rattled off a series of policies rolled out under the Biden administration, including the rescission of some Trump-era policies, though the current administration has alienated immigration advocates by retaining others. 

“You have not secured our borders, Mr. Secretary, and I believe you've done so intentionally. There is no other explanation for the systematic dismantling and transformation of our border,” he said. 

Several Republicans on the committee, including Green, leveled a series of accusations against Mayorkas, using their full five minutes for speeches, without asking questions of Mayorkas or allowing him to respond.

“I have no interest in asking the secretary any questions because he obfuscates and lies,” said  Rep. Clay Higgins (R-La.) after arguing Mayorkas had “failed your country.”

Rep. Bennie Thompson (D-Miss.), the top Democrat on the committee, defended Mayorkas, pointing to reporting from The New York Times about Green’s comments to donors.

“I was dismayed to see that speaking to a group of campaign contributors last week about today's hearing the Chairman said, and I quote, ‘Get the popcorn. It's going to be fun.’ I think that tells Americans all they need to know about the Republican agenda here,” Thompson said.

“They don't want solutions to homeland security challenges. They want to make a headline or photo opp. They want a political wedge issue and something to talk to their deep-pocketed donors about more than they want to work together to get things done.”

Green later said the article misquoted him. He did not specify how but detailed he has no power to impeach Mayorkas, noting such a move would fall to the House Judiciary Committee and that his role is limited to oversight.

Republicans used much of the hearing to dissect Mayorkas’s previous statements on operational control of the border.

Mayorkas has repeatedly maintained he has control of the border, but the GOP has seized on prior comments from Border Patrol Chief Raúl Ortiz who answered “no” when asked if the department was meeting the high standard set under the Secure Fence Act.

It was a line Green said “told the truth” about the situation at the border.

Mayorkas on Wednesday said he was previously cut off by lawmakers from giving nuance to earlier answers, arguing the law leaves much discretion to the secretary in determining how to manage the border while the standard itself has never been met.

“The Secure Fence Act provides that operational control means that not a single individual crosses the border illegally. And it's for that reason that prior secretaries and myself have said that under that definition, no administration has had operational control,” Mayorkas said.

“As I have testified under oath multiple times, we use a lens of reasonableness in defining operational control. Are we maximizing the resources that we have to deliver the most effective results? And under that definition, we are doing so very much to gain operational control.”

Democrats took turns defending Mayorkas.

Rep. Donald Payne (D-N.J.) accused Republicans of having “such short memories … with respect to the situation at the Southern border.” Rep. Sheila Jackson Lee (D-Texas) rattled off a list of Trump-era policies, including family separation, prompting Mayorkas to say they not only failed to achieve operational control but “disobeyed our values as a country.”

Thompson turned to the archives, citing comments from GOP lawmakers from when the Secure Fence Act was first passed, citing concerns over the standard it set, including Rep. Michael McCaul (R-Texas), a member of the committee who worked on the legislation.

“When you put this number as a metric in the definition of operational control, you make it impossible to achieve operational control. Perfection shouldn't be the enemy of the good,” McCaul said at the time, according to a portion of the transcript read aloud by Thompson.

Republicans, however, took issue with Mayorakas’s explanation, arguing the secretary has no right to interpret the laws passed by Congress.

“Congress set an objective in law. You haven't pursued it,” said Rep. Dan Bishop (R-N.C.).  “Who are you to displace the legal definition of operational control by this Congress in favor of pursuing one of your own invention?”

Rep. Daniel Goldman (D-N.Y.), who played a central role in the impeachment of then-President Trump, later pounced on Bishop’s phrasing.

“I have a little experience with impeachment and I can tell you, as well as everybody else, that there is no grounds for impeachment based on a policy dispute. And there is absolutely nothing that I've seen here today that amounts to a false statement under oath,” he said.

“In fact, Mr. Bishop, my colleague, in referencing operational control and that standard, stated himself that it is an objective. It is the objective of the Department of Homeland Security to have operational control and, as you pointed out, that is to allow no unlawful entry into this country. That, of course, is an impossible standard.”

Other Republicans sought to hold Mayorkas accountable with other methods.

One lawmaker brought a series of charts with multiple questions. Two others brought guests to the hearing, including parents of children that had died of a fentanyl overdose and the family of victims who died after a man carrying migrants crashed into their car while seeking to evade police in a high-speed chase. 

The committee’s proceedings came to an almost 20-minute standstill following comments from Rep. Marjorie Taylor Greene (R-Ga.) accusing Mayorkas of lying.

Green agreed to a motion from Democrats to take down her words, ultimately resulting in the loss of her speaking privileges during the hearing.

It was a complex turn of events given that many Republicans at prior points in the hearing accused Mayorkas of being dishonest before Congress, though none, as Greene did, labeled him a liar.

Still, the hearing ended on a tone much different from how it started, with Thompson and Green both speaking to the need to maintain decorum during proceedings.

Thompson said the two men had "sidebarred" about the language used, noting other nations keep tabs on Congressional proceedings — “our adversaries look at us,” he warned.

“You and I pledge that going forward, we'll make every effort to get back to the civility that this committee has been known for,” Thompson said.

Green echoed that in his own closing remarks.

“I agree with the former chairman, now ranking member, that we disagree on a lot of policies. We really do. And we don't have to despise someone because they disagree with us. We don't have to disparage someone because they disagree with us,” Green said. 

“And we do need to dial the rhetoric down in the country and apparently in the committee.”