Another Senate Precedent Democrats Will Regret

They're infrequent and result in unintended consequences. Just ask Harry Reid (if you could). Is lying to Congress under oath now okay? How about shooting someone on Fifth Avenue?

Precedent (pres′ ē˙-dent, n.):

1. Law. a legal decision or form of proceeding serving as an authoritative rule or pattern in future similar or analogous cases.

2. Any act, decision, or case that serves as a guide or justification for subsequent situations.

Precedents are a big deal in the United States Senate, the longest-serving continuous legislative body in world history. While they are typically established through a simple majority vote, their rarity is often a testament to their significance. There are only 43 “Standing” Rules of the Senate, but thousands of “precedents” established over more than 200 years act as separate “rules” on how the place operates—sometimes undercutting the Standing Rules, which should take a two-thirds vote to change.

In recent years, a little procedure called the “nuclear option” allows a rule to be “changed” or nullified by a simple majority vote. Ultimately, a majority of the Senate, not unlike the House, can do as it pleases. You need only a simple majority to overturn a ruling of the chair, no matter how just that ruling is and no matter what it’s on (so long as it doesn’t overtly violate the Constitution, such as its requirement for a two-thirds vote to convict a President upon impeachment, for example).

Fortunately, given its role as the “cooling saucer of democracy,” Senators are typically more circumspect about rushing to judgment with majority-vote slam-downs. That seems to be changing.

It's a big deal when the opportunities to establish or change precedents present themselves. I encountered my first one in 1995. A few weeks before I became Secretary of the Senate, then-US Sen. Kay Bailey Hutchison (R-TX) offered an amendment to a Department of Defense emergency supplemental appropriations bill dealing with endangered species.

Future Senate Democrat Leader, the late Harry Reid (D-NV), moved a Point of Order against Hutchison’s amendment. The presiding officer, then-freshman US Sen. Judd Gregg (R-NH), with advice and counsel from the Senate’s parliamentarian, ruled that the amendment violated Senate standing Rule XVI. That rule requires an amendment to appropriations bills to be “germane.” An endangered species amendment was not germane to the defense spending bill, but Hutchison moved to overturn the chair’s ruling. She won, creating a precedent - Senators could “legislate on appropriations bills,” something previously verboten.

It made a mess of things in the US Senate, as all manner of amendments were offered that were completely unrelated to the spending bill being deliberated. Four years later, then-Senate Majority Leader Trent Lott (R-MS) presented a resolution to reverse the precedent and restore Rule XVI, which narrowly passed.

Of course, we’ve had bigger and more consequential moments when new precedents were created. Majority Leader Reid exercised the “nuclear option” in 2013 with a successful point of order against a rule requiring 60 votes to end debate on Executive and Judicial branch nominations except those for the Supreme Court. Democrats were upset over Republicans’ filibusters of Barack Obama’s nominees and wanted to “pack” the District of Columbia US Court of Appeals with extra judges.

Then-Senate Minority Leader Mitch McConnell (R-KY), and others promised Democrats they would regret pulling the trigger on the nuclear option. Four years later, Senate Majority Leader McConnell turned his promise into reality by triggering the “nuclear option” again, this time for the Supreme Court nomination of Neil Gorsuch. It also paved the way to avoid Democratic filibusters on two more future Donald Trump-nominated justices, Brett Kavanaugh and Amy Coney Barrett.

How did invoking “precedent” work out for you, Senate Democrats?

Probably as well as the one they invoked this past week to dismiss or avoid an impeachment trial on Alejandro Mayorkas, the embattled, partisan, demonstrably corrupt, and deeply malevolent Secretary of Homeland Security.

The Constitution’s Article I clearly outlines the procedure for impeaching officials of the Executive and Judicial branches. Section two gives the US House “sole Power of Impeachment.” Section three says this:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

As you know, the US House enacted two articles of impeachment, both very narrowly on a second attempt (the first attempt failed), despite three Republicans voting against them, including since-departed Representatives Ken Buck (R-CO) and Mike Gallagher (R-WI). California Republican Tom McClintock also voted no.

Gallagher didn’t excuse his opposition as support for Mayorkas, far from it. He wrote the following in an op-ed to the Wall Street Journal:

Impeachment not only would fail to resolve Mr. Biden’s border crisis but would also set a dangerous new precedent that would be used against future Republican administrations.

The first article of impeachment gruelingly details Mr. Mayorkas’s manifest incompetence. But incompetence doesn’t rise to the level of high crimes or misdemeanors.

Gallagher’s main point: Mayorkis is the wrong target. "It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system,” Mayorkas told Fox News’ Bret Baier.

Of the 22 impeachments sent to the Senate in American history, Gallagher noted that no Cabinet official was impeached except for criminal behavior. While the House voted to impeach Mayorkas mostly over his circumvention and neglect of immigration law and obstruction and lying to Congress, no other (not enough?) felonious behavior was alleged. It’s true that current immigration law, such as it is, gives the President and his/her administration wide latitude on its enforcement. And as we know, the latitude the Biden Administration is taking not to enforce existing law is 1,954 miles wide - the entire length of the US-Mexico border.

Former assistant US Attorney and federal prosecutor Andrew C. McCarthy has a better take than Gallagher’s on “maladministration,” which Gallagher says the founders excluded as the basis of impeachment. McCarthy, citing Alexander Hamilton’s Federalist 65, says impeachment doesn’t require criminal offense since it is inherently political. “Mayorkas is accused of profound dereliction of duty; that is serious maladministration, which is exactly what the Framers were aiming at,” McCarthy wrote for National Review. I agree with him.

The execrable and malevolent Alejandro Mayorkas. Reuters photo.

Besides, neither of the Trump impeachments, both blatant political acts, contained nor alleged any criminal offenses. By that measure, the Mayorkas 20-page Articles of Impeachment were much stronger than the largely spurious, almost comically partisan impeachments of Donald Trump.

I also share McCarthy’s sentiment - I’m not “worked up” because we all knew the outcome. However, we probably didn’t want to believe the Senate’s new precedent - moving Points of Order against both Articles because they did not meet the Constitution’s standard of “high crimes and misdemeanors.” That’s new. Democratic Leader Chuck Schumer (D-NY) claimed Republicans were impeaching Mayorkas over “policy differences,” which was blatantly false to anyone who read the actual articles (even Mayorkas didn’t read them, confident that he would never face a Senate trial).

The fact is that Mayorkas has no business being Secretary of Homeland Security. During the Obama Administration, he was the department’s Deputy Secretary, and as such, worked with Democratic power brokers and sleazebags such as former Virginia Gov. Terry McAuliffe, “selling American citizenship to the Chinese,” as US Sen. Tom Cotton (R-AR) alleged. A Department Inspector General report on the Mayorkas scandal has been scrubbed from the agency’s website, surprise, surprise.

What’s interesting about the Point of Order was the chair, President Pro Tempore Patty Murray (D-WA), under the advice and counsel of the Parliamentarian, refused to rule on the matter: “Under the precedents and practices of the Senate, the Chair has no power or authority to pass on such a point of order. The Chair, therefore, under the precedents of the Senate, submits the question to the Senate: Is the point of order well-taken?”

Senate President Pro Tempore Emeritus Chuck Grassley (R-IA) swears in current Pro Tempore Patty Murray (D-WA) to preside over the impeachment proceedings. AP photo

She turned to the Senate and asked them to determine by majority vote. I don’t recall the last time that was done, but it was probably long before my date of birth.

There was no debate, no special committee assembled as in previous impeachments, and no executive session to debate even procedural matters behind closed doors. It is just a straightforward, blatant power play, votes in hand, to dismiss the impeachment. At least they read the Articles of Impeachment with every Senator assembled, except for endangered Sen. Jon Tester, D-MT, who scurried somewhere only to return to vote to support the Biden-Mayorkas open-border policies. Twice.

So now, we know that lying to or obstructing Congress is not an impeachable offense, nor is serious maladministration of laws, resulting in hundreds if not thousands of deaths. Only those found guilty of criminal offenses should be tried. And the Senate “found” (created) a new power to dismiss duly enacted impeachment resolutions from the US House.

Lakin Riley was unavailable for comment.

Donald Trump shook his head and probably laughed. Because if he wins the election for President in November and Democrats win the House—a plausible scenario, even conventional wisdom—a likely Republican Senate can now dismiss almost certain impeachment articles against Trump, even if he is guilty of refusing to enforce laws or lying to Congress. He can almost do as he pleases at the southern border. Maybe even shoot somebody on Fifth Avenue.

In doing so, at least Trump would be responsible for fewer deaths than the scandal-ridden Mayorkas has been over the past three years.

Mitch McConnell won’t be the majority leader - he’s stepping down from his leader’s position at the end of this year - but he’s likely, again, to say, “I told you so.”