When I represented then-President Donald Trump in his first impeachment case, many Republicans praised me for demonstrating that the Constitution permits impeachment only for “treason, bribery, and other high crimes or misdemeanors.” Trump had not been charged with any of those offenses, but rather with vague allegations of abuse of power and obstruction of Congress. The Senate voted to acquit Trump of the unconstitutional charges brought by Democrats. Republicans applauded that result.
Now many of the same Republicans are seeking to impeach Secretary of Homeland Security Alejandro Mayorkas on equally vague and unconstitutional grounds. Whatever else Mayorkas may or may not have done, he has not committed bribery, treason, or high crimes and misdemeanors. Testifying to his opinion that the borders are secure is a far cry from perjury. Nor is failure to enforce laws a crime. Indeed, most Republicans do not even claim that his actions or inactions meet these daunting constitutional standards, but they are prepared to apply a double standard based on partisan considerations.
Double standards are anathema to justice under our Constitution. There must be one Constitution for all, regardless of party affiliation. If Republicans want to amend the Constitution, let them try, but neither the Republicans nor the Democrats have the right to redefine constitutional standards on an ad hoc basis in order to serve their partisan interests.
So, let’s hear from some principled Republicans who may dislike what Mayorkas is doing but who understand that they have previously voted for a standard that has not come close to being met.
The philosopher La Rochefoucauld said that “Hypocrisy is the tribute that vice pays to virtue.” It is also the currency of politics in present-day Washington. But it is wrong regardless of which side promotes it.
Congress has the power to issue a statement condemning Mayorkas, just as it had the power to issue a statement condemning Trump. But the extraordinary power of impeachment should be reserved for constitutionally impeachable offences and not invoked simply because one party has the votes to do so.
In the Federalist Papers, Alexander Hamilton warned that the “greatest danger” regarding the power to impeach would be if it were “regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
We experienced that danger when President Clinton was impeached by Republicans and when Trump was impeached by Democrats. Now we are seeing it play out once again with Republicans in control of the House of Representatives.
Hopefully there will be enough principled Republicans to prevent this abuse of the Constitution. But even if not, our system of checks and balances — which requires a two-thirds vote for conviction by the Senate — will prevent Mayorkas’s unconstitutional removal. Even if Mayorkas remains in office, a House vote to impeach him would add to the dangerous precedents established by previous partisan abuses of the impeachment provision.
The time has come, indeed it is overdue, for members of Congress who claim to be originalists when it comes to constitutional interpretation to recognize that the Framers explicitly refused to allow impeachment and removal for “maladministration” or other such vague abuses of duty. It is the voters who are allocated the power to vote against those who fail at governance.
Just because the Democrats were hypocritical when they impeached Trump on nonconstitutional grounds does not give Republicans the right to do the same. Two wrongs make a fight, not a right. And the real losers are the American people, who count on Congress to uphold the Constitution, especially in areas of impeachment, where the courts have taken a hands-off view.
We live in an age in which partisanship too often trumps principle, and in which noble ends are thought to justify ignoble means. There is a reasonable dispute about how to achieve border security. I may agree with some Republicans who are critical of the current administration’s border policies and who place the blame on Mayorkas. But these criticisms — whether one agrees or disagrees with them — do not justify distorting the Constitution.
It is particularly essential in an age of partisan division that the nonpartisan principles of our Constitution be scrupulously obeyed. So I urge principled Republicans who care about the Constitution to oppose those in their party who are seeking to impeach and remove Mayorkas based on nonconstitutional accusations.
Alan Dershowitz, professor emeritus at Harvard Law School, is the author of numerous books, including his latest, “War Against the Jews: How to End Hamas Barbarism.” He is also the host of The Dershow on Rumble. Follow him @AlanDersh.