STOP US IF YOU’VE HEARD THIS ONE BEFORE — Today is supposedly the day! At any minute now, Senate negotiators who’ve been haggling out an agreement for four months are expected to drop the text of their much-anticipated — and, at least on the right, already much-maligned — border deal. But first, a little bit of impeachment news for you … DEMS PLOT TO SIDESTEP MAYORKAS TRIAL — As Republicans have taken steps toward impeaching Homeland Security Secretary ALEJANDRO MAYORKAS, political prognosticators — admittedly, yours truly included — have warned about the possibility of a high-profile, border-related Senate impeachment trial falling smack in middle of an already contentious election year. As fun as that sounds, you can forget it. Multiple Democratic sources in the Senate as well as in the administration tell Playbook that the party is planning to scuttle the House GOP’s dreams of a long, drawn-out process that drags Mayorkas — and the Biden administration writ large — through the mud. With the House slated to impeach Mayorkas next week, Democrats have quietly been in talks about the best way to kill this as fast as they can. And it turns out they have a bunch of options on that front. They’ve got some hefty legal brains who agree with this play. Impeachment scholar JOSHUA MATZ, who worked on both DONALD TRUMP impeachments and has written extensively on the topic, tells Playbook that Democrats have a host of solid justifications to forgo a Senate trial altogether. The first is the most obvious: The founders didn’t want impeachment to be used for everyday policy disagreements. “Impeachment trials are meant to be deadly serious business for matters of state — not free publicity for the House majority to air policy attacks on the current administration,” Matz said. The existing impeachment articles are “so manifestly about policy disagreement rather than anything that could arguably qualify as high crimes and misdemeanors, that it would be unwarranted to waste the Senate’s time with the trial on the matter.” OTHER JUSTIFICATIONS FOR DISMISSAL: Matz says that beyond arguing about the abuse of the impeachment power, Democrats could point out the following: — Bloated articles. One of the most basic rules every prosecutor knows is that each claim needs to specify a single charge. But in their drafted Mayorkas articles, Republicans list a host of grievances under each claim, which is problematic because of due process issues. “The articles are formally deficient in so many ways that any trial would be flagrantly unfair and create such grave due process issues that it would be outrageous to even proceed,” Matz says. — Conviction confusion. Due process isn’t the only problem with bloated articles. What if a senator finds Mayorkas guilty on one allegation in an article but not another? How does he or she vote? And if Mayorkas is convicted — which won’t ever happen, but humor us for a second — would senators have reached that threshold because they agree with subparts of the article but not the entire premise? “You would get to two-thirds only by virtue of the fact that they are lumping so many separate, specific, but unrelated and distinct charges under a single heading,” Matz says. Not fair. — Bad precedent. Matz argues that holding a Senate trial on this matter would only further encourage abuse of the impeachment power by rewarding the House majority with what they really want: not a somber process about high crimes and misdemeanors, but a PR spectacle focused on the administration’s border policies, which the GOP sees as a winning issue in an election year. — Logistical impossibilities. It’s difficult to imagine how to oversee a process when the whole of the federal government’s immigration policies — not just Mayorkas himself — appears to be on trial. “This would resemble something closer to an undergraduate parliamentary debate more than it would resemble a Senate ‘trial’ in any sense that a competent person would use that word,” Matz tells Playbook. SO HOW DO DEMS SIDESTEP THIS? Senate Democrats — and more than a few Republicans not eager to engage in what they see as a frivolous waste of time — have several options at their disposal. Here are the benefits and challenges of each: 1. Offer a motion to dismiss the charges. Senate impeachment rules could allow senators to offer this motion at the outset of the trial or after initial opening arguments have been made. Or, the trial rules themselves could mandate such a motion receive a vote, as they did in the second Trump impeachment. All it takes is an up-or-down majority to dismiss. Benefits: It’s the most straightforward. There’s clear precedent for this. And Democrats could bury this messy matter very quickly. Drawbacks: Some lawmakers may fear voter backlash if they’re not taking the charges seriously — particularly because the public ranks border matters among their greatest concerns for the country. (Though maybe don’t count on this, since even Mr. Middle-Of-The-Road, Sen. JOE MANCHIN (D-W.Va.) himself, is calling to dismiss the charges.) Democrats may also want an opportunity to rebut the GOP’s charges. 2. Raise a point of order against the articles. Students of the Trump years will recall that Sen. RAND PAUL (R-Ky.) did something like this ahead of Trump’s second impeachment. Back then, Paul raised a jurisdictional objection: Since Trump was no longer president, wasn’t he outside the scope of what the Senate could rule on in a trial? The Senate took up the matter for a vote but quashed Paul’s effort. Benefits: This is the most bare-knuckle way to kill the impeachment ASAP. In theory, it could be done as soon as the articles are carried over from the House and well before trial rules are even drafted or debated, thus snuffing out headlines on an issue the administration doesn’t want to discuss. Drawbacks: Paul’s vote aside, there’s little precedent for this, so no one knows how it would go down. Would it go to the presiding officer, the parliamentarian or the full Senate for a vote on whether the point of order was even in order? 3. Refer it to committee. Senate rules allow the chamber to basically ship non-presidential impeachment articles off to a committee to deal with them. In modern judicial impeachments, senators have convened special committees with half-dozen or so senators from each party. The benefits: The process would allow Dems to look like they take the charges seriously while avoiding a spectacle that would eat up precious floor time. The committee would hear evidence and testimony, then report back to the Senate their findings and/or recommendations, allowing the chamber to consider the matter quickly. Downside: This requires work and time. The chamber has to create the committee, get it up and running and appoint senators to oversee the articles and report back. Republicans could also appoint fire-breathers to the committee and try to make a spectacle of this as well. And lastly, the Senate still has to deal with the impeachment charges when the panel finishes its work. They can’t just refer it to committee and bury it. That means, as the panel works, the media will be in a total frenzy of impeachment news — not exactly good for the administration. And the committee process could drag out for months. Good Sunday morning. Thanks for reading Playbook. Drop us a line: Rachael Bade, Eugene Daniels, Ryan Lizza.
| 
