Media
The Articles of Impeachment and Investigative Reports
Event Summary
The Center for Immigration Studies hosted a panel to discuss the history and impact of the impeachment of Secretary of Homeland Security Alejandro Mayorkas. Should he have been impeached? Why was he impeached? What are the consequences of the U.S. Senate’s refusal to either hold a trial itself or to appoint an impeachment trial committee to take and consider evidence?
The panel featured Rep. Mark Green (R-TN), Chairman of the House Homeland Security Committee, who guided the impeachment resolution through the Committee and to ultimate passage by the House. The panel also included George Fishman, the Center’s senior legal fellow who took a leave of absence to work on the impeachment inquiry as Special Counsel for the Committee on Homeland Security and Paul Taylor, the former Chief Counsel of the House Judiciary Committee’s Subcommittee on the Constitution, who also served as Special Counsel for the Committee on Homeland Security to work on the impeachment inquiry.
Participants
Representative Mark Green, MD (R-TN), Chairman, House Committee on Homeland Security.
George Fishman, Senior Legal Fellow, Center for Immigration Studies, former Special Counsel for the Committee on Homeland Security, former Chief Counsel of the Judiciary Committee’s subcommittee with jurisdiction over immigration.
Paul Taylor, former Special Counsel for the Committee on Homeland Security, former Chief Counsel of the Judiciary Committee’s Subcommittee on the Constitution.
Mark Krikorian, Executive Director, Center for Immigration Studies.
Date and Location
May 1, 2024
Rayburn House Office Building, Room 2237
MARK KRIKORIAN: Good morning. My name is Mark Krikorian, executive director of the Center for Immigration Studies.
The House approved an impeachment resolution back in February. Those articles of impeachment were delivered to the Senate last month, the middle – mid-April. And the Senate, instead of holding a hearing where they would air the issues, they simply basically buried it, spiked it, and so there was no opportunity for a full public airing of the enormous case that the House Homeland Security staff and chairman had made about why this impeachment was necessary – that it was not just some, you know, fly-by-night political hackery; it was actually extraordinarily well-documented. And so as a kind of second best, we figured a panel discussion in lieu of a Senate trial isn’t – you know, it’s not even second best, it may be third best, but it is – it’s an opportunity for the people involved to actually air some of this evidence about why Senator – about why Secretary Mayorkas did, in fact, deserve – warrant impeachment.
So we have here the central figures. Chairman Mark Green, congressman, is the chairman of the House Homeland Security Committee and was the motive force behind this. The chairman’s a West Point grad and physician; served in Iraq and Afghanistan; has – represents Tennessee’s Seventh District, which is a big part of middle Tennessee, including the western parts of Nashville.
And he’s – after the congressman gives remarks, we have two of the staff people who were very intimately involved in this. First is Paul Taylor, who was chief counsel for the House Subcommittee on the Constitution, which is relevant to this, obviously. And also, George Fishman of the Center, who took a leave of absence and the two of them worked with the staff in actually putting together the articles and the report for the impeachment.
So we’re going to start, obviously, with Chairman Green, then Paul and George, and then after that we’ll take questions. And if you have questions and if you’re not in our live studio audience, you can email them to [email protected]. If you’re watching this on a recording you missed your chance, but if you’re watching the livestream, [email protected]. And after the presentations, we will go through some of those questions and ask the panelists. So, Congressman, the floor is yours.
REPRESENTATIVE MARK GREEN (R-TN): Well, thank you. And I got to thank CIS for, you know, putting this panel together. I think you’re right, it’s plan C or D. (Laughter.) It would have been great for the Senate to actually hear the arguments for the case prior to dismissing it, but we recognize their action was a political action and a political decision, and unfortunately they did what they did.
I have to thank you, too, for loaning us George. He and Paul have been instrumental in the construction of this. You know, a lot of times you see something that’s wrong, you know it’s wrong, you can’t quite articulate it, and these guys helped us understand how best to articulate what we knew was clearly wrong actions, harmful actions to our country that needed to be addressed. And both of these guys were the firepower behind the construction of the argument, and so thank you for loaning him to us.
You know, how we – how we got here. When this president took office, he hired a secretary. And that secretary, by taking the oath to defend the Constitution, owned some very specific responsibilities, one of which was to secure our southwest border. And it’s very interesting what the laws passed by the Congress say. And that’s really critical here to determining what a high crime and misdemeanor is and getting into the weeds of all this, is to understand that at the hundred-thousand-foot level Congress has said: Your responsibility if you step into this role is to secure our border. And we all know that has been a(n) abysmal failure. But they immediately did away with I think it’s 89 – the numbers get debated, but I think the best number is 89 policies of the former administration that were a part of securing the border, that the then-sitting leadership in the organization said these work. And they had made campaign promises along the campaign trail to open the border, to create catch and release, and so they did away with policies that effectively secured the border.
They created an open border, and people tested it. And as people tested it, they phoned home. And then they created a migration crisis by opening the border and creating an incredible pull factor, or incentive, that drove people from 160 nations to come to our border and walk across and come into the United States and be released. And you know, our adversaries – and I use the term “adversary” about the drug cartels purposefully – took advantage of this situation and they created schemes to facilitate this mass wave of migration. Our enemies took advantage of this open border to disrupt our nation and to put our nation at risk through things like China bringing fentanyl into the United States purposefully to harm the country, all because of the open border. The mass migration came. The cartels profited to the tune of 13 (billion dollars) to $15 billion a year, putting money into the hands of people who absolutely hate our country and have done nothing but harm, killing Americans, creating crime nexuses that will be decades cleaning up. And the detriment to our communities, the detriment to our states all across the country – we use the term all the time about every state’s a border state, every city’s a border city. I mean, it’s absolutely true. And it’s because of those policies that were done away with.
But then they went a step further. They took the laws that we’ve written by Congress and purposefully subverted those laws and ignored those laws, creating policies and structures to facilitate the catch-and-release program to get as many people into the country as they humanly possibly could, because that was their intention all along. And those policies and the subversion of the laws, the ignorance of the laws, the ignoring of the laws further worsened the situation, to the extent of telling in a memorandum the personnel in – the employees of DHS to not follow the laws passed by Congress – our laws were pretty clear – and very interestingly, the INA says “shall” detain, says things like this, for example, with people they confirm have felony convictions in other countries, that isn’t a reason to not send someone back, to detain them and send them back, when the law clearly says that it is.
And so at the higher and more deeper level to a guy who at 17 took the oath to defend the Constitution, at a higher level, a more, I think, offensive thing is just disregard for the Constitution. You know, our Founders were brilliant when they – when they took the ideas of Montesquieu and Locke and said: You know, if we concentrate power into the hands of just a few people, we will create a tyranny. If we want freedom, we’ll spread power out. And so they created three separate, coequal branches of government, one that writes the laws and one that executes the laws. And on impeachment after impeachment in the past, on hearings oversighting the executive branch from Iran-Contra to way back, these experts provided examples of where even the Democrats said you don’t get to pick and choose which laws you’re going to enforce, executive branch; you have to – you have to follow the Constitution and execute those laws.
And from a granular level, what is a high crime and misdemeanor for me? Well, a lawless Cabinet secretary who completely disregards the laws passed by a coequal branch of government, subverts those laws, that, to me, is a high crime and a misdemeanor.
The Founders were at least clear on this point: The executive branch doesn’t get to just totally disregard the laws passed by Congress. That tears at the foundation of the nation. It tears at the Constitution, the document that we swear an oath to defend. I’ve always been fascinated by something, and I think it was Mark Milley who actually made this point in a speech where I was listening to him promote someone. He said, you know, we don’t take an oath to the people. We don’t take an oath to defend the flag. We don’t take an oath to defend the terrain. We take an oath to defend the Constitution. And that’s the same exact oath that Alejandro Mayorkas took, and completely and totally disregarded. And having a lawless Cabinet secretary who gets to pick and choose which laws they want, I’m sorry, that’s a road to concentrating power into the hands of fewer and fewer people, and a road to tyranny, and it’s unacceptable to me. And that’s why we went forward with this. But we got here because they did what they did, resulted in the crisis, and then they doubled down on the policies of catch and release and the violation of the laws passed by this body. And that can’t be accepted.
I’m sure I’ll have more to add as we dig deeper into the panel discussion today, but I want to turn it over – let you turn it over to some experts who brought a lot of history and a lot of legal prowess to this discussion.
MR. KRIKORIAN: Thank you. Thank you, Chairman Green.
Paul?
PAUL TAYLOR: Yeah. Thank you. Thank you, Mr. Chairman. It was a pleasure to work with Chairman Green and his staff. It was an absolute pleasure. I learned a lot, and hopefully I can explain in a relatively short period of time what we learned during this impeachment investigation and prosecution.
Take a step back, try to give you the essentials of the narrative as I understand it. Let’s go back to the Constitution. They’re drafting the Constitution. They wanted to create an impeachment clause to remove high executive officials because they knew the criminal law was not adequate to remove bad actors. So at the Constitutional Convention there was a debate what standard should govern high executive officials being able to remain in office. The phrase “maladministration” was thrown out there, but Madison objected to that. He said, you know, we don’t want a standard where it’s just where you can remove someone just for being a clumsy administrator; we want to go to what was proposed next, which was the phrase “high crimes and misdemeanors.” Now, that may seem vague to some people today, but at the time it was imported into the Constitution because it had a clear history of application in England for over a hundred years. That was the phrase, “high crimes and misdemeanors.” Now, that was, ultimately, the standard put into the Constitution.
Now, what does that mean? A “high crime” – and I think – although there’s some debate on this whether “high” modifies “misdemeanor” as well; I think it does. A “high…misdemeanor,” what is that? It was understood to mean not a petty crime as we understand it today, but a misconduct in your demeanor in high office. A “high…misdemeanor” was misdemeaning yourself in your conducting of a high office. And that’s really the central part of the impeachment claim against Mayorkas.
Fast forward. That becomes part of the Constitution. The first Congress. James Madison is elected to the first Congress. There is debate on whether to create a Department of Foreign Affairs, which ultimately became the State Department. There is objection on the House floor. Let’s not create this department, people say, because there could be bad actors. There could be really bad people that have a lot of power in this department. And James Madison says: No, wait a minute. Relax. We can go ahead and create this department because we have the power of impeachment, and we can remove through impeachment “unworthy men” – his phrase – who may occupy this office; you know, not referring to the president, but to some “unworthy men” that might be appointed to these positions.
So what we have here – and Joseph Story was one of the first great commentators on the Constitution. He wrote a treatise that describes some of the major precedents under high crimes and misdemeanors in England, which included multiple examples, for example, of admirals in England who failed to control their borders at sea, opening them up to invasion, opened them up to harm. These were all considered impeachable offenses for their neglect of duty.
So fast forward today to the case of Secretary Mayorkas. Now, there are two things that make this impeachment unique, I think, in constitutional history. The first is the subject of the violations involved federal statutes that explicitly deny prosecutorial discretion to high executive officials. They say – for example, 8 USC § 1226(c) – if a border agent comes across an illegal alien and through their database check or otherwise they’re determined to have been convicted of an aggravated felony – which is defined in the statute as things like murder, sex trafficking, drugs – you shall detain that person. Doesn’t mean you have to go around and find these people in the weeds, but insofar as you encounter them you must detain them.
So the secretary, in the face of that statute, on September 30th, 2021, issues a memo. And it’s got his signature on it, and it’s all publicly available. So much of this impeachment is also unique because parts of it were, like, almost giftwrapped with a bow and sent to Congress, because this is public information. These are policies they were proud of. This is not a matter of having to subpoena people and dig up information about what you hid or didn’t hide from Congress. You know, in Watergate it was, you know, the abuse of power in that way. In, you know, the first Trump impeachment it was contempt of Congress. This was all in the open and fully litigated. So this September 30th, 2021, memo that Mayorkas sends out says: The decision how to exercise prosecutorial discretion can be complicated and requires investigative work. Our personnel should not rely on the fact of conviction or the result of a database search alone. That is an absolute hundred-and-eighty-degree violation of the requirements of the federal statute.
This was litigated. Texas – United States v. Texas, Texas says this is, obviously, an unconstitutional order to his entire staff to violate federal law. And the lower court agrees, and it goes up to the Fifth Circuit Court of Appeal(s). And the Fifth Circuit Court of Appeals agrees that this is a clear violation of the law. And then it goes up to the Supreme Court and things get interesting. The Supreme Court takes the case, and the decision says – the majority decision, which was this kind of mixed group of Kavanaugh, Roberts, and the three liberal justices – and they say, well, wait a minute here; this sounds like an issue to us of whether there’s too much or too little enforcement on the part of the administration. We don’t think – this was the five-person majority – that this is an issue that we should decide ourselves as the judicial branch; we think this is a decision for Congress.
Now, they leave open how Congress should handle this. They list a variety of tools that Congress has. But the important point is that during the oral argument in that case – the oral argument in a case is when the justices and the litigants much more openly discuss the practical ramifications of what their decision might be. Justices don’t want to be blindsided by some consequence of their decision that they didn’t fully explore. So during the oral argument, you’ll see a lot more blunt questions and blunt answers. And what happens at the oral argument is the solicitor general of the United States, who is charged with articulating the Biden administration’s official policy position, she’s arguing to the Court that they should not – there should be no jurisdiction in this case; they shouldn’t even answer the question. And this is what Justice Kavanaugh says to the solicitor general of the United States during the oral argument: I think your position is instead of judicial review Congress has to resort to shutting down the government or impeachment or dramatic steps if some administration comes in and says we’re not going to enforce laws, or at least not going to enforce the laws to the degree that Congress by law has said the law should be enforced. That’s 8 USC § 1226(c). And that’s forcing – I mean, I understand your position, but it’s forcing Congress to take dramatic steps, I think. And the solicitor general responds: Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive – which is exactly what an unconstitutional order to your entire staff to violate a clear federal statute is.
So that was the quid pro quo. That was the quid pro quo: Court, if you deny jurisdiction here and you don’t answer this question, we will take our chances with impeachment. Now, notice Kavanaugh just flags impeachment and shutting down the government. Well, of course, shutting down the government is no solution here, because if you deny funds to the administration they won’t have any funds to implement the law. And if you give them more funds, you’ll just be wasting money because they’ve demonstrated that they’re not going to enforce the law. So the only practical remedy here is impeachment. And in fact, the concurring justices all agreed. They said of course the states have suffered vast harm. Their health-care costs have gone up. The crime rates have gone up. Of course there is harm.
So that left the Senate as the sole source of relief after the House passed the impeachment articles over to the Senate. You would think that the senators would understand that they have a unique responsibility to defend the interests of the states. They are unique in our federal system for being elected statewide, so they do have a special obligation to the states. They are no longer elected by state legislatures, but they’re still elected statewide. The fact that so many senators voted for Schumer’s proposition that somehow this was an unconstitutional move by the House is really outrageous in the sense of they’re violating their duty to their own state interests.
So if you really look at what Schumer said, he said, well, this was unconstitutional on the part of the House. Well, he couldn’t have meant that it was unconstitutional for the House to consider articles of impeachment; that’s in the Constitution. The Constitution requires the Senate to evaluate through a trial and the admission of evidence whether or not this was a constitutional or unconstitutional impeachable offense, did it rise to that level or not. So when Senator Schumer says we’re going to vote to dismiss this right away because he thinks it’s unconstitutional, that is like the Queen of Hearts in “Alice in Wonderland” who said: Verdict first, trial later. But it’s much worse. He ended up saying: Verdict first, no trial ever. Much worse than the Queen of Hearts. And the entire point of the process was for the senators to hear the evidence as to whether or not this was an impeachable offense, and he denied even that most minimal step, effectively negating the impeachment clause, writing it out of the Constitution, leaving it now just to voters to decide whether or not the senators who supported that principle – or lack of principle – might be punished at the ballot box.
Do I have any more time, or should I just move it on to George?
MR. KRIKORIAN: Why don’t we move on to George, and then –
MR. TAYLOR: I’ll move on to George.
MR. KRIKORIAN: – I have some questions and other people will, and so we’ll have a back and forth. George?
GEORGE FISHMAN: Thank you so much, Mark. And Chairman Green, it was such a privilege to cap off my congressional career working for you and the American people on the impeachment proceeds, and I just thank you so much.
REP. GREEN: Yeah. Thanks for being –
MR. FISHMAN: I was actually involved in two impeachments in my career as a congressional staffer, President Bill Clinton and DHS Secretary Mayorkas. Upon evaluation, I consider the Mayorkas impeachment the more compelling. One involved what the meaning of “is” is. The second involved what the meaning of American sovereignty is and what the point is of Congress passing laws if the executive branch chooses to flout them.
As Paul indicated, the catalyst for the House’s extraordinary action was a decision by the Supreme Court last June. The decision, U.S. v. Texas, dramatically altered the balance of power between the executive branch, Congress, and the states in instances where the executive branch chooses to less than fully execute the immigration laws of the nation. The decision left the House with little choice but to impeach Alejandro Mayorkas, at least should it desire to preserve its constitutional prerogatives and protect the states from the disastrous consequences of Secretary Mayorkas’ willful and systemic refusal to comply with federal immigration law.
As Chairman Green’s committee report on the impeachment noted, the Supreme Court agreed to hear a case involving the very same unilateral suspensions of the federal immigration laws by Secretary Mayorkas that are at issue in this impeachment: mandatory detention of criminal aliens and other aliens in the U.S. unlawfully in certain instances. The Fifth Circuit concluded that Mayorkas’ actions had every indication of being a general policy that is so extreme as to amount to an abdication of statutory responsibility, and that the replacement of Congress’ statutory mandates is plainly outside the bounds of the powers conferred by the Immigration and Nationality Act.
Secretary Mayorkas’ actions and beliefs have disturbing parallels to those alleged in the congressional investigation of the Reagan administration’s so-called Iran-Contra affair. Two congressional committees – one House, one Senate – took part in the investigation, finding that certain administration officials displayed disdain for constitutional processes and the legislative branch. When Congress disagreed with these officials’ deeply-held beliefs, they allegedly decided to ignore the duly enacted laws passed by Congress. The committees concluded the common ingredients of the policies were secrecy, deception, and disdain for the law. A small group of senior officials believed that they alone knew what was right. In the Iran-Contra affair, officials viewed the law not as setting boundaries for their actions but raising impediments to their goals. When the goals and the law collided, the law gave way.
The committees went on: Former officials lectured us that a rightful cause justified any means, and that Congress is to blame for passing laws that run counter to administration policy. What might be aptly – what may aptly be called the cabal of the zealots was in charge. Government officials must observe the law even when they disagree with it. These were the Democrat-led committees investigating the Reagan administration. Independent counsel Lawrence Walsh, who did the criminal side of it, concluded that the crimes committed in Iran-Contra were motivated by the desire of persons in high office to pursue controversial policies and goals, even when the pursuit of those policies and goals was restricted by statutes or the constitutional system of checks and balances.
Secretary Mayorkas has apparently come to the conclusion that he and his cabal of the zealots alone know what is right, alone have a monopoly on the truth. DHS detention, they’ve decided, is morally inexcusable, and the law has to give way to mass release by any means necessary – especially because Congress is to blame for passing mandatory detention laws in the first place. I’m frankly surprised the secretary hasn’t chained himself to a building at Columbia University yet. (Laughter.)
To those who say Mayorkas was just carrying out orders, let me quote independent counsel Walsh: “When a president chooses to skirt the laws or to circumvent them, it is incumbent upon his subordinates to resist, not join in. Their oath and fealty are to the Constitution and the rule of law, not to the man temporarily occupying the Oval Office.”
Paul has very well explained the basis of the impeachment in the U.S. versus Texas decision. I should just raise a few points which were raised in opposition to the impeachment during markup on the House floor, things of that nature.
A lot has been made of the fact that Justice Kavanaugh’s opinion itself does not actually contain the word “impeachment.” Representative Glenn Ivey argued at the markup that, “The chairman and others have made the point that the only remedy available is impeachment. That’s not what Kavanaugh wrote. He does not mention impeachment. The articles of impeachment rely on Justice Alito’s language. He’s the sole dissenter in this case.” However, Justice Kavanaugh clearly understood impeachment to be one of the arrows that his decision left in Congress’ quiver. Paul has explained what happened at oral argument, and Secretary (sic; President) Biden’s solicitor general saying that dramatic abdication of statutory responsibility, that could warrant impeachment. Senator Schumer justified his unprecedented and irresponsible dismissal of the House articles by claiming they’re (un)constitutional. He might have first checked with President Biden’s solicitor general as to that view.
It's not even accurate to say that Justice Kavanaugh’s opinion itself doesn’t touch on impeachment. In the – in the opinion, immediately after writing, for example, Congress possesses an array of tools to address executive branch misdeeds, he referred to two Supreme Court cases and two specific pages in those Supreme Court cases. Well, what did those decisions say? The first, a 1997 decision, Raines versus Byrd, on the page referenced by Kavanaugh it said: “The Tenure of Office Act provided that an official whose appointment to an executive branch office requiring confirmation by the Senate could not be removed without the consent of the Senate. In 1868, President Johnson removed his secretary of war. Within a week, the House of Representatives impeached Johnson. One of the principal charges against him was that his removal violated the Tenure of Office Act.” That was the page specifically referenced in Justice Kavanaugh’s opinion. In the other opinion, from 1993, the Court, on the page referenced by Kavanaugh, stated that: “We hardly need to note that an agency’s decision to ignore congressional expectations may expose it to grave political consequences.” And what is more grave than impeachment?
Columbia University Professor Philip Bobbitt has argued that the Republicans misread Justice Alito – that he wasn’t embracing impeachment as an alternative; he was trying to hold it back. Bobbitt also said it’s a travesty – the impeachment – because it completely turns Alito’s opinion on its head. He is not coming out for interbranch warfare. Professor Bobbitt totally missed the point. Of course Justice Alito was not coming out in favor of interbranch warfare. Rather, he said ruefully that the Court now says that no party injured by this policy is allowed to challenge it in court. So in the terrible situation into which Justice Alito believed Kavanaugh’s opinion had placed Congress and the states, quote/unquote, “disruptive measures” such as impeachment were the, quote/unquote, “only limit” on the power of a president to disobey the law. In Representative Dan Bishop’s paraphrasing of Alito, “I don’t think this is a wise decision to make, but that is the decision the majority made. And if you want the law to be followed, you’re going to have to impeach somebody.” That’s where Justice Alito was.
Justice Kavanaugh put the House in the position of having to bring impeachment proceedings. That was quite a June swoon for the Kavanaugh Court. Justin Driver, a law professor at the University of Chicago Law School, has written or wrote before Kavanaugh’s confirmation that a dominant narrative of the Supreme Court during the last five decades has been the apostasy of Republican-appointed justices. Kavanaugh’s confirmation would almost certainly spell the end of that storyline and cement a generation of GOP constitutional orthodoxy. Well, reports of the death of the apostasy story have been greatly exaggerated. As David Savage wrote in the L.A. Times: “The crucial battle these days within the Supreme Court are among its six conservatives, not between them and the three liberals. The outcomes in close cases now turn most often on one justice, Brett Kavanaugh. Twice, Kavanaugh played a key role in upholding Biden’s immigration policies against lawsuits brought by Texas Republicans.” And that is what brought impeachment to the House floor.
Thanks.
MR. KRIKORIAN: Thank you, George.
We had a bunch of questions. I want to direct the first one I guess to anybody, but start with you, Chairman Green. Somebody sent in a question: Why wasn’t Mayorkas’ repeated examples of perjury referred to prosecution so as to counter the claims that there were not impeachable offenses? Is that something you guys had considered or not? I’m not –
REP. GREEN: Yeah. I mean, we considered that. We considered contempt of Congress. But it was really beyond that. This rose to the level of impeachment, so we went – and that’s Article II of the impeachment articles, you know, breaching of trust to the American people and breaching of trust the obligations to Congress. And it goes beyond just the false statements; it goes to disregard for the oversight responsibility of Congress where we would subpoena – I think there were 14 subpoenas that are still unsatisfied from the department. So it’s beyond just the dishonesty; it’s a complete disregard for this branch of government.
MR. KRIKORIAN: And this is sort of a lawyer’s question, a follow-up on that: Was the House Homeland Security Committee or the House as a whole in a position to recommend prosecution for perjury? I don’t –
MR. TAYLOR: Well, I’d say one thing about that. Well, who would enforce that law? The Biden administration –
MR. KRIKORIAN: No, no, I understand that. But I mean, in order to make the argument that, yes, there’s actually a criminal side to this as well as the maladministration side.
MR. TAYLOR: I mean, my view on that is there are a lot of steps that you theoretically could have taken to dot every I and cross every T, but it would have been a waste of time in the sense that you would – you would see the inevitable conclusion of this. And in the meantime, you would be retaining in office someone who has clearly ordered his staff to violate the law. So there’s a – there’s practical wisdom that has to be brought to bear on which button you push and when, based on the circumstances.
MR. KRIKORIAN: Right, right. OK. Interesting.
And I had a question, again for anybody but start with you, Chairman Green. Doesn’t – the way this ended up being killed in the Senate, doesn’t that, you know, point to a certain institutional dysfunction? Because when the Framers set up the system of checks and balances, their assumption was that the various branches would be jealous of their prerogatives. Well, is Congress really jealous of its prerogatives anymore?
REP. GREEN: I think that’s a very fair question, you know, and I mentioned this to my colleagues on multiple occasions. We at some point have to defend the institution. And all those senators and all those House members who voted against the impeachment were basically saying, you know, it doesn’t matter; the Congress’ authority – we’re not going to defend the Congress’ authority in the Constitution. And I was – I’m grieved by that, and Americans should be grieved by that as well. Clearly, the actions of Schumer and the Democrats to basically not even hear the testimony before deciding points to that dysfunction, to use your term. I think it’s far more dysfunction, because dysfunction implies that it’s an accident. I think there was intention here to do what they did. So, again, maybe a better word is subversion of the Constitution and subversion of the power of the United States Congress coming from within.
MR. KRIKORIAN: And a follow-up on that, to refer to something Paul said, should we be pushing to repeal the 17th Amendment? Because one of the reasons senators aren’t, you know, institutionally in this – in this sense defending the interests of the states is because, yes, they’re elected statewide, but they have no real – you know, the state as an institution really has no hold on them at all; it’s just a district.
MR. TAYLOR: Well, I mean, if you repeal the 17th Amendment, I’m sure it would stoke the fire under them. But you would think that raw principle alone would be fire enough to motivate them. And if it’s not, I mean, maybe the electorate would have something to say.
I wanted to just say something really quick about the whole idea of, geez, shouldn’t Congress be asserting more of its own authority. So we had a couple of hearings in the committee, and the Democrats invited a couple of law professors to talk about impeachment. Of course, they all opposed it, as does the legal academy generally. It’s really like a monocultural echo chamber there. But what’s fascinating is of all of the law professors that the Democrats might pick, they picked two who completely reversed themselves regarding their positions on the previous Trump impeachment.
Now, I was fascinated by this. One of the professors was Professor Pearlstein. And earlier, in March – on March 3rd, 2020, she had given the following testimony to the House Rules Committee. Again, she ultimately went on to oppose the impeachment of Secretary Mayorkas. But back then, in 2020, she said: “It has been decades since Congress has effectively asserted its ambition to guard against the staggering accretion of power in the presidency. Congress has acquiesced abroad presidential assertions of authority to act without congressional authorization.” And she goes on and on. It’s exactly what happened here, but she completely reversed her position because of the political party of the person in question.
MR. KRIKORIAN: So this is kind of a political question, so I guess more for you, Chairman Green. The whole reason DHS exists, the reason the INS was, you know, deconstructed and all of that stuff happened was because of 9/11, was because of immigration and border security. In other words, that’s why there is a DHS.
And, I mean, as an elected official, how do you assess the administration’s taking a risk on this, because isn’t this incredible vulnerability – political vulnerability – in letting literally millions of people who can’t be vetted and weren’t vetted in any meaningful way into the United States. I mean, something is bound to blow up at some point.
REP. GREEN: Yeah, that seems to boggle the mind, and it makes people go into, you know, the suspicious part of our brain, and why they would accept such risk, why Americans would be allowed to die to fentanyl overdose that is, you know – the precursor is manufactured and brought in through drug cartels, benefitting criminal networks, all of that. Why would that be tolerated?
And there are conspiracy theories out there about this – some plausible, some not – but very clearly the risk-benefit – the benefit question is still – we don’t understand. But the risk question is clearly – I mean, we know several hundred thousand Americans have died to fentanyl. We know tens have died to automobile accidents, hundreds have died to criminal actors doing horrible things.
We know from FBI testimony before the committee there is no way to guarantee that Hamas doesn’t have a cell here that has come across the southern border. We know that the Chinese have sent 50,000-plus people in the last year-and-a-half into the country. We know – faking tourists – these Chinese nationals have overwhelmed military installations, taking pictures. We suspect that because – the highest year prior to that – there were 1,800 Chinese nationals that crossed in a year, and now it’s like close to 30,000, right – that something has happened in China. You can’t leave China with the social credit score the way it is without the CCP knowing. This has to be intentional.
So the risk is massive, and yet there is some benefit out there – and we can, you know, speculate – but no one has found the smoking gun on it, so I would be careful to do so. But there – I mean, they can’t be this stupid, right? They are not this stupid. There is some benefit to them, and people ought to seriously consider what that benefit is.
MR. KRIKORIAN: Paul?
MR. TAYLOR: I’ll say something real quick. This is from the Fifth Circuit’s opinion. Now part of this, I think, is where the rhetoric of the administration got ahead of them, and these policies kind of got out of control in the following way. This is very interesting, what the Fifth Circuit said about that Mayorkas memo ordering his staff to violate federal law. These are the words of the Fifth Circuit.
The DHS memo compels officials to comply in a manner that violates statutory law. For example, it provides that the guidelines, quote, “are essential to advancing this administration’s stated commitment to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by poverty and inequality.”
You will remember at the beginning of this, the Biden administration issued an executive order which was basically the federal-level DEI stuff that a lot of people are retreating from today because of its absurd applications. Well, here’s the Fifth Circuit saying that the memo that I quoted earlier ordering his staff to violate federal law is prefaced with, we’re doing this in order to help implement this DEI executive order. And it’s really stark to see the Fifth Circuit saying that perhaps part of this grew out of an effort to try to comply with the DEI executive order.
MR. KRIKORIAN: Yeah, I mean, I think that’s actually – I mean, my sense is the reason for this is not so much that there is some kind of quid pro quo or some kind of actual benefit. I think it is more like what you were saying, Paul, is that it’s an ideological capture almost.
So, yeah, we have a question from the audience. Yes, sir.
Q: Thank you, Mark. I actually have two questions, one on national security considerations –
MR. KRIKORIAN: Well, do the first one and then I’ll kind of restate it so people can hear it. Go ahead.
Q: We have seen in the campus protests at schools half and more of the people who have been arrested are not students. Presumably, some portion of them are not citizens. Is this a preview of what might be coming as a result of – you mentioned, you know, very – thousands of Chinese coming in.
REP. GREEN: So you are asking me to be speculative on the future. Politicians are very reticent to do that.
Q: And we always ask the question.
REP. GREEN: Yeah, I do – I know. You know, let me put my military hat on for just a second. I spent 24 years in the United States Army. If I were an enemy to the country, and if I wanted to destabilize the United States in the face of a potential future confrontation, this is exactly what I would do, right?
Look at the Ukraine model that Putin vetted by sending migrating people into the Donbas and those areas, and then those individuals became the saboteurs when the conflict happened. And I’m not suggesting that, in the case of China particularly, that they are going to be invading the United States any day soon, but they might very soon invade Taiwan. And if we were to become involved, having the thousands of people here – and again, you’ve asked me speculate, right, so I am sharing what I would be thinking about as a military guy trying to defend this country. Those individuals are here now because of this open, porous border, the catch-and-release policies, and that is a threat that has to be defended against and prepared for.
Q: Second question –
MR. KRIKORIAN: OK.
Q: Part of the impeachment case was the secretary refused to enforce the law as Congress put it in. He got by with it. And if I’m a Cabinet appointee in the future, why should I follow the law?
REP. GREEN: That’s the whole point we were trying to make, right, is that we write the law, they execute the law. We now have allowed an executive branch official, a Cabinet-level secretary to not only not follow the law, but to violate the law, and we’ve done nothing to him other than impeachment. He gets to wear that – being the only, the sole Cabinet secretary – sitting Cabinet secretary in the history of the country to be impeached. He will wear that you know, through history. But the failure to remove him from office from that is an incentive to people to do whatever they want. We just further strengthened the royalty of the executive branch.
MR. FISHMAN: If I could – I’d just add that Justice Kavanaugh actually asked Biden’s solicitor general at the oral argument, well, what if the administration decides we’re not going to enforce the environmental laws, we’re not going to enforce the labor laws, and what about that? And the solicitor general – Biden’s solicitor general said, yeah, that’s consistent with your precedent – with your precedent of the Supreme Court. There’s nothing that can be done about that; that’s a decision of the executive branch.
Q: So is Congress no longer the first branch?
MR. KRIKORIAN: Yeah. Sure, yeah, Paul.
MR. TAYLOR: Well, so here’s the problem. The Senate’s failure to remove Mayorkas has resulted in not only in an incentive to an executive branch abuse of power in the future, but a disincentive for Congress to pass legislation because – think about it. If you have someone in the executive branch in charge of enforcing any law you produce, and that executive official has demonstrated a willingness to simply ignore what might be carefully negotiated provisions, perhaps some members would only vote for a piece of legislation because it had enforcement provision A, B, and C. Maybe they go along with X, Y, and Z, which are weaker provisions, only because of the A, B, and C. But if the person sitting at the top of the branch charged with enforcing it decides to ignore A, B and C, then the entire point of your support of the legislation has evaporated. That is going to have huge ripple effects downwind in terms of a reluctance of members in this space to support legislation knowing that any provisions in it could be ignored by the executive branch with impunity.
REP. GREEN: Great point.
MR. KRIKORIAN: Now, I mean, we had a question that sort of relates to that. Does the Senate actions basically change the ability of impeachment or the threat of impeachment as a tool in reining in the executive? I mean –
MR. TAYLOR: Absolutely. I mean, Senator Schumer literally said, we no longer have to hear evidence. I decide, and we vote. Period. I mean, it is – it is really amazing. I mean, that – for all practical purposes – eliminates the impeachment clause from the Constitution and it now sets this precedent. They have – Democrats have a way of setting horrible precedents that help them in the near term but will redound to their detriment in the far term.
MR. KRIKORIAN: In a sense, though, it doesn’t really repeal the impeachment clause; it just makes it a partisan tool exclusively. In other words, if –
REP. GREEN: I think they already did that.
MR. KRIKORIAN: Yeah, yeah, they already did that, exactly. In other words, essentially with the Trump impeachments and now with not even taking – not even participating as they are supposed to, under the Constitution – in this one, ironically, they have completely politicized the impeachment process. MR. TAYLOR: And there’s a – there’s a doctrine called the political question doctrine in which the Supreme Court has said they will not hear a case challenging the constitutionality of an act like that of Senator Schumer. If the power is in the hands of a branch like the Senate, and they exercise it poorly, the courts will not get involved. This is going to be a case for the electorate to decide whether that was an appropriate action or not.
REP. GREEN: Right.
MR. KRIKORIAN: And so what can Congress do – or the question came in, what actions are left to Congress to support the rule of law?
REP. GREEN: Well, it’s a – you know, that’s good question. Clearly, we can make the laws more detailed and specific, although that, as has been mentioned, is a challenge under the current incentives that have been created by Schumer’s action.
I honestly believe that precedent, if there are leaders, and if they are strong, and if that majority is strong enough, meaning you have a large majority that wants to take action, the precedent can be undone. So I do believe the precedent can be undone. And I’d be interested to hear – you know, these are my lawyers, I’m a physician, so I rely on them very heavily. But I do believe that if we have strong leadership, and if we have a strong enough majority, we can reverse the precedent. But –
MR. KRIKORIAN: The problem is that in a 51 percent, 49 percent country – not just Congress – you don’t end up with those kind of majorities.
REP. GREEN: I’d be – you know, I’d be surprised if the country’s viewpoint really divides along the way the elections go. But that’s just a personal opinion.
MR. KRIKORIAN: We had a question from the audience.
Q: Is there not a case to be made that Mayorkas has not totally gotten away with this, and that ex-Secretary Mayorkas could be prosecuted with a special prosecutor or another administration – (off mic). That’s the nature – you know, with Liddy; and John Mitchell left office and was prosecuted later for crimes. There’s a whole long precedent of making sure that impeachment is not the only remedy when (people ?) violate their obligations.
MR. FISHMAN: I mean, I’d like to hear what Paul would have to say, but for the most part, other than possible instances of perjury in testimony to Congress, his failure to abide by the law were not – was not criminal offenses, and lot of the impeachment report laid out the case that the Founding Fathers never in their minds wanted there to be a requirement that impeachable offenses be criminal acts. So most of what he did were not criminal acts; they were failure, abdication to fulfill his duty to enforce the law. And so other than possible perjury in some instances, I’m not sure what criminal case could be brought against him.
REP. GREEN: And that’s what I meant when I said we could be more detailed in our laws. We can put teeth in things and probably should.
MR. KRIKORIAN: And has the – along these lines or along what you were saying, George, the “take care” clause of the Constitution – the president shall take care to see the laws are enforced. Has that ever been litigated? Is it even litigatable? What’s the story with that? Because that’s kind of what we’re talking about here.
MR. FISHMAN: Well, that – my understanding is that obligation only adheres to the president, not to Cabinet officials. But one of the many unfortunate aspects of Justice Kavanaugh’s decision was he clearly implied in his decision that no one – no state, no individual – no one might have standing to challenge a president’s failure to fulfill his constitutional obligation to see that the laws be faithfully executed. It’s just hanging out there, but it was clearly implied in his decision, and that’s very unfortunate.
MR. KRIKORIAN: Can Congress, in future legislation, just create a cause of action like that?
MR. FISHMAN: It can, except that standing is sort of a – it’s a constitutional principle based on there has to be a –
MR. TAYLOR: Case in controversy.
MR. FISHMAN: – case in controversy in order for the court to take it up.
MR. TAYLOR: In the Constitution there’s this phrase – there has to be a case in controversy at issue before the Supreme Court will hear the case, and that relates to this issue of standing. The Supreme Court has reserved to itself the ability to decide whether or not there is a concrete enough injury on the part of a given party to be able to bring the case.
MR. FISHMAN: Yeah, and Justice Kavanaugh said in his opinion, you know, maybe if Congress did something like that, had a specific cause of action in the statute, you know, maybe that would influence us in finding standing, but it still would be the Supreme Court’s decision, based not on statute but on their view of the – of the Constitution.
MR. KRIKORIAN: Interesting.
MR. TAYLOR: Yeah. Kavanaugh, in the decision, which is interesting, he literally raised that proposition and prospect, but then at the end of the sentence sort of dismissed it – you could try it, Congress, but we don’t have to accept it.
MR. KRIKORIAN: Interesting.
MR. TAYLOR: Not much help.
MR. FISHMAN: I mean, I should say that Justice Alito’s dissent was one of the most fiery, in my mind inspiring dissents I’ve ever read. And it was sort of occasioned by some really outrageous implications. If you take Justice Kavanaugh’s reasoning, you know, down the path to the ultimate level, it has some really frightening implications.
MR. KRIKORIAN: We had – the last question?
Q: (Off mic) – Biden administration is thinking about bringing refugees to the United States especially from Gaza, but as you know from Gaza – (off mic). Looking at what’s happening on immigration right now and – (off mic). And can Congress do anything about it if you think it’s – (off mic)?
REP. GREEN: The inspector general at Homeland –
MR. KRIKORIAN: Just so that people – the question was, should we be – you know, there’s been reports that the administration wants to bring refugees from Gaza here. Is that a good idea? And can Congress do anything about it?
REP. GREEN: Yeah. So the inspector general of the Department of Homeland Security had some very interesting insight into the way the Biden administration brought Afghans back to the United States. And if that is how they intend to do it, absolutely that would be a horrible idea, right, so if they’re going to follow their own pattern of how to execute something like this – non-combatant evacuation-type operation, they absolutely can’t do that. I mean, they’ve put the United States at risk in the way they executed getting those individuals back. So I don’t trust the Biden administration to do it well or correctly. And the – all people have to do is go look at the IG’s report on how it was handled in Afghanistan.
MR. KRIKORIAN: I think let’s – I want to sort of respect people’s time. We’re at just about one hour. I want to thank everybody.
Before that, I want to make clear the reports that the staff prepared – hundreds of pages, thousands of footnotes – they’re all available on the Homeland Security Committee website. It’s all there, chapter and verse. This was not sort of a, you know, spur-of-the-moment dispute over policy because, after all, the Republican Congress didn’t impeach Jay Johnson, who was Obama’s Homeland Security secretary, and while I had disagreements with him, he wasn’t breaking the law.
And so the point is the committee’s work makes that case in great detail, and it’s worth remarking on how important that is. So I want to thank – yeah, last word? Sure.
REP. GREEN: Sure. If I could just – if I could just say I think we owe – that nation owes and I certainly owe a debt of gratitude to the staff of the Committee of Homeland Security, to the folks that we brought in to help up with this process for a months-long – almost year-long – that you referenced the reports of, but there were people working late nights for a year, producing those, producing preparatory work for hearings – multiple, multiple hearings, and to have people denigrate the process as something that happened, you know, willy-nilly is a real disrespect to the individuals who worked so hard on it.
So I want to – I want to thank my staff, on behalf of the American people, for the hard work that they did to prepare all of that.
MR. KRIKORIAN: Thank you, Chairman Mark Green of the House Homeland Security Committee, Paul Taylor, and George Fishman. And thank all of you – thanks to all of you for coming in. And this will be available on our website, and you won’t be able to ask questions because the livestream is over, but I think we had a lot of interesting and useful information here. Thank you.
REP. GREEN: Thanks for putting it on.