Constitutionality of Mayorkas impeachment trial killed by Senate Dems questioned by experts

'This essentially nullifies the House’s important role in the impeachment process,' says an expert

Constitutional law experts are examining the implications of the precedent set by Senate Democrats on Wednesday, when they killed the impeachment trial of Department of Homeland Security Secretary Alejandro Mayorkas, effectively dismissing it. 

After the Senate deemed both articles of impeachment unconstitutional, the upper chamber adjourned, quashing all hope for a trial on Mayorkas' alleged crimes. This was historically significant, as an impeachment trial had never been dismissed, tabled or otherwise discarded without the accused official having first exited their role in one way or another. 

"The Senate has no constitutional authority to rule that the articles approved by the House do not state impeachable offenses," explained Andrew McCarthy, a former chief assistant United States attorney in the Southern District of New York and a senior fellow at the National Review Institute. 

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Constitutional experts are questioning the constitutionality of Senate Majority Leader Chuck Schumer, inset top, and Senate Democrats' maneuver to kill the articles of impeachment against DHS Secretary Alejandro Mayorkas, which Republicans fiercely objected to. (Getty Images)

The sole power to determine impeachable offenses lies with the House, McCarthy noted. This means neither the Senate nor a court of law would be within their rights to undermine the House's ability to make such determinations. 

Senate Majority Leader Chuck Schumer, D-N.Y., proposed two points of order during the court of impeachment deeming both articles of impeachment unconstitutional, which were passed by the Democratic majority. 

"This essentially nullifies the House’s important role in the impeachment process," McCarthy said. 

Alternatively, the Senate would have been well within its rights to "hold a trial and ultimately acquit Mayorkas of the charges," he added. 

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Impeachment articles against DHS Secretary Alejandro Mayorkas were delivered to Senate Majority Leader Chuck Schumer on Tuesday. (Getty Images)

The brief impeachment trial proceedings revealed "yet another of our constitutional norms is being undermined," said Randy Barnett, a renowned legal scholar and professor of constitutional law at the Georgetown University Law Center. 

However, Alan Dershowitz, a prominent constitutional scholar and emeritus professor of law at Harvard Law School, claimed, "There are no constitutional impeachment criteria charged."

He explained further that "dismissal is proper."

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Alan Dershowitz said Democrats were right to dismiss. (Lior Mizrahi)

McCarthy warned that "Democrats will come to regret it." He explained that in the case that Democrats take over the House's majority and Republicans the Senate, "Democrats will be undermined by the precedent they have set — especially if Donald Trump is elected president again."

Democrats would likely seek to once again impeach former President Trump if he is elected in November, McCarthy said, and "they have now handed Republicans a precedent authorizing the Senate to ignore the House."

Barnett claimed that impeachment is "ultimately a political power" and thus, political use of it is expected. However, he suggested that "the political nature of impeachment" is exactly what "necessitates the House having the opportunity to present its case both to the Senate and to the electorate in a public trial." This was prevented from taking place in the Senate. 

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Andrew McCarthy said the Senate was not within its rights to countermand the House’s determination. (Anna Moneymaker/Bloomberg)

"The only reason Republicans impeached Mayorkas was to get a high-profile hearing that would rivet the public’s attention to Biden’s border crisis," added McCarthy, who noted that the House understood they would never see a conviction or removal. 

"The Senate Democrats’ move does deny that public hearing," he said. For this, Democrats will "take a political hit," he continued. 

However, McCarthy described that Senate Democrats made a political calculation, ultimately determining that "it would be better to be criticized for not conducting a trial than to hold a trial," placing President Biden's border policies at the forefront and Democratic senators on record acquitting Mayorkas. 

This, he said, would look like the Democrats "endorsing Biden’s non-enforcement policies."

Julia Johnson is a politics writer for Fox News Digital and Fox Business, leading coverage of the U.S. Senate. She was previously a politics reporter at the Washington Examiner. 

Follow Julia's reporting on X at @JuliaaJohnson_ and send tips to This email address is being protected from spambots. You need JavaScript enabled to view it..