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  • Written by Claire Leavitt, Assistant Professor of Government, Smith College
Mayorkas impeached: Is Congress on a witch hunt? 5 ways to judge whether oversight is legitimate or politicized

After a failed vote to impeach him the previous week, Republicans in the House of Representatives mustered the barest majority in a second try, 214 to 213[1], and impeached Homeland Security Secretary Alejandro Mayorkas on Feb. 13, 2024. Mayorkas is the first cabinet secretary to be impeached by the House in almost 150 years[2].

The Senate, controlled by Democrats, is not expected to charge Mayorkas[3], allowing him to keep his job.

The vote follows a series of recent moves by the House GOP to exercise Congress’ impeachment power.

In December 2023, the House formally authorized an impeachment investigation of President Joe Biden on potential corruption charges[4] related to his son, Hunter Biden. That investigation is continuing.

In January 2024, Republicans on the U.S. House Committee on Homeland Security approved two articles of impeachment[5] against Mayorkas for “presid(ing) over a reckless abandonment of border security[6] and immigration enforcement” and “releasing hundreds of thousands of illegal aliens into the interior of the United States,” among other charges.

The Constitution[7] grants Congress the power to impeach and remove “all civil officers of the United States,” including the president, for “treason, bribery, or other high crimes and misdemeanors.” This is part of Congress’ constitutional responsibility to check the other two branches of the federal government through investigative work, ensuring their accountability.

However, the impeachment process[8], like Congress’ oversight work more broadly[9], is influenced by partisan considerations. Committees conduct more investigations of the incumbent administration[10] when Congress and the presidency are controlled by opposing parties. One possible reason: congressional investigations drive down the president’s approval rating[11].

How do you know when members of Congress are using investigations to damage political opponents, and when those investigations are legitimate means of enforcing good governance and the rule of law?

Is it possible to separate the “good” investigations from the “bad”?

A balding man in a well-fitted suit stands and raises his right hand to swear an oath.
U.S. Secretary of Homeland Security Alejandro Mayorkas is sworn in during a hearing on July 26, 2023, before the House Committee on the Judiciary concerning oversight of Mayorkas’ agency. Alex Wong/Getty Images[12]

Politicized oversight

A skirmish between the House Judiciary Committee, led by Republican Rep. Jim Jordan of Ohio, and the Manhattan District Attorney’s office is just one illustration of why these questions are so important.

In April 2023, as part of his committee’s probe into allegedly politically motivated prosecutions of former President Donald Trump, Jordan sent a subpoena for sworn testimony[13] to lawyer Mark Pomerantz[14]. Pomerantz had previously worked for Manhattan DA Alvin Bragg, whose team had recently issued 34 felony indictments against Trump for, among other charges, falsification of business records via payments to adult film star Stormy Daniels[15].

In return, Bragg sued Jordan in federal court[16] for what Bragg called an “unprecedented and unconstitutional attack[17]” by the federal government on an ongoing state-level investigation.

A few days later, on April 19, a federal district judge decided against blocking Jordan’s subpoena[18], arguing that there were “several valid legislative purposes[19]” for the committee to require Pomerantz to testify.

Bragg, who initially fought the decision, dropped his appeal after he and Rep. Jordan reached a compromise[20], in which Pomerantz agreed to testify before the committee. However, Pomerantz ultimately refused to answer[21] many of the committee’s questions.

Historically, courts have tended to respond to disputes between different branches of government with this kind of hands-off approach, preferring to let the parties work things out among themselves[22]. But apart from legal questions, the Jordan-Bragg dispute raises fundamental questions about the politicization of oversight.

‘Legislative purpose’ required

While Congress’ oversight powers are not unlimited, Congress does have the constitutional authority to investigate almost anything it wants[23] in the service of a “legislative purpose[24]” – though Congress’ demands for information about an ongoing criminal case were unprecedented[25].

Jordan and McCarthy have argued that the “weaponiz[ation] of our sacred system of justice[26]” against a political opponent demands the American people’s immediate attention. Democrats called the attacks on Bragg a “political stunt[27].”

Members on either side of the aisle aren’t in the business of admitting distasteful intentions as they sing hosannas to truth and accountability. Thus, political science scholars have proposed several possible guidelines[28] by which observers might judge a congressional investigation’s quality.

1. Look to the professionals

The accountability community includes legislative agencies like the Government Accountability Office[29], a nonpartisan watchdog that informs Congress about the functioning of executive programs, and the independent offices of inspectors general[30] that exist within the largest executive branch agencies.

As a scholar of American oversight[31], I argue in forthcoming work that one possible way to identify high-quality oversight is by measuring how well Congress responds to programs and agencies that watchdogs have already identified as particularly at risk for waste, fraud and abuse.

In other words, does Congress look to the corners of the government at which highly informed nonpartisan experts have shined their lights? If so, we can infer that Congress is responding to problems for which there is an established need for oversight.

Two men in suits sitting at a table, with one talking and gesturing with his hands. On June 6, 2002, FBI Director Robert S. Mueller III, right, and Glenn A. Fine, inspector general for the U.S. Department of Justice, testify at an oversight hearing before the Senate Judiciary Committee. Scott J. Ferrell/CQ-Roll Call, Inc. via Getty Images[32]

2. Look to bipartisan cooperation

If the goal is to assess how oversight is weaponized politically, the most obvious metric might appear to be: Is an investigation bipartisan? Scholars and citizens could look at whether committee reports are issued jointly by the majority and minority parties, and whether both parties sign off on subpoenas and other information requests.

There are problems with using bipartisanship as a sole metric for quality, however. Members of Congress might purposely refuse to work with their opposition, seeking to discredit an investigation by making it appear partisan when in principle it is not.

Additionally, it matters how partisanship is measured. If one Republican joins 20 Democrats on an investigative request, or vice versa, does that equate to bipartisanship? Do the parties actually work collaboratively, or separately? The lack of a specific definition of “bipartisanship” makes it a difficult standard to apply.

3. Look to information sources

An important, early part of the oversight process is gathering information about a particular agency or program. Considering the sources of that information is relevant to determining its credibility. Recent scholarship has shown that, under divided government, committees invite a smaller proportion of bureaucrats[33] to testify at hearings. Testimony from civil servants is particularly valuable for administrative oversight, since they are arguably the best positioned to inform Congress about the functioning of the agency programs that they administer.

Thus, a relative dearth of information-sharing between Congress and agency bureaucrats may affect the quality of the information the legislature receives about the government programs they oversee.

4. Look to effectiveness

Oversight quality may also be assessed by measuring its effects. Do oversight and investigations actually lead to measurable changes in agency behavior? Research suggests that when Congress chooses to conduct oversight hearings on specific problems in government, those problems are significantly less likely[34] to recur.

However, these measures tell more about whether an investigation achieved its intended – potentially partisan – goal, and less about whether the investigation itself was rigorous, objective and rooted in facts.

5. Look to the people

Finally, oversight quality may simply be in the eye of the beholder. In other words, “good” oversight is whatever Congress – and, by extension, the electorate – says it is.

There is little evidence[35] that voters consciously split their tickets – that is, vote for candidates from different parties on the same ballot. However, in midterm elections, the president’s party almost always loses seats in Congress[36], indicating voters’ desire for balance against the incumbent administration.

In the 2022 midterms, the Republican takeover of the House can be largely explained by higher turnout among Republican voters[37]. And Republican candidates received more votes nationally[38] than Democrats.

These results show that citizens who were enthusiastic enough to vote wanted the GOP in charge. Before the midterms, Republicans made no secret of their intentions[39] to investigate President Biden and the Department of Homeland Security, and it is fair to say that voters anticipated this agenda. In the impeachment inquiries directed at Biden and Mayorkas, voters are getting what they were promised. In a democracy, that may be the form of legitimacy that matters most.

This article includes material[40] originally published July 31, 2023.

References

  1. ^ 214 to 213 (www.nytimes.com)
  2. ^ in almost 150 years (www.cnn.com)
  3. ^ not expected to charge Mayorkas (www.nytimes.com)
  4. ^ potential corruption charges (www.nytimes.com)
  5. ^ approved two articles of impeachment (www.nytimes.com)
  6. ^ “presid(ing) over a reckless abandonment of border security (www.congress.gov)
  7. ^ The Constitution (avalon.law.yale.edu)
  8. ^ the impeachment process (www.bu.edu)
  9. ^ like Congress’ oversight work more broadly (doi.org)
  10. ^ more investigations of the incumbent administration (www.jstor.org)
  11. ^ drive down the president’s approval rating (press.princeton.edu)
  12. ^ Alex Wong/Getty Images (www.gettyimages.com)
  13. ^ subpoena for sworn testimony (judiciary.house.gov)
  14. ^ Mark Pomerantz (www.simonandschuster.com)
  15. ^ to adult film star Stormy Daniels (manhattanda.org)
  16. ^ sued Jordan in federal court (www.nytimes.com)
  17. ^ an “unprecedented and unconstitutional attack (int.nyt.com)
  18. ^ decided against blocking Jordan’s subpoena (www.politico.com)
  19. ^ several valid legislative purposes (www.nysd.uscourts.gov)
  20. ^ reached a compromise (www.politico.com)
  21. ^ Pomerantz ultimately refused to answer (www.nytimes.com)
  22. ^ work things out among themselves (www.everycrsreport.com)
  23. ^ almost anything it wants (theconversation.com)
  24. ^ legislative purpose (www.scotusblog.com)
  25. ^ were unprecedented (fivethirtyeight.com)
  26. ^ weaponiz[ation] of our sacred system of justice (twitter.com)
  27. ^ political stunt (www.vox.com)
  28. ^ several possible guidelines (heinonline.org)
  29. ^ Government Accountability Office (www.gao.gov)
  30. ^ offices of inspectors general (www.oversight.gov)
  31. ^ As a scholar of American oversight (theconversation.com)
  32. ^ Scott J. Ferrell/CQ-Roll Call, Inc. via Getty Images (www.gettyimages.com)
  33. ^ invite a smaller proportion of bureaucrats (doi.org)
  34. ^ problems are significantly less likely (openscholarship.wustl.edu)
  35. ^ little evidence (www.jstor.org)
  36. ^ the president’s party almost always loses seats in Congress (fivethirtyeight.com)
  37. ^ higher turnout among Republican voters (www.pewresearch.org)
  38. ^ Republican candidates received more votes nationally (www.cnn.com)
  39. ^ Republicans made no secret of their intentions (www.cnn.com)
  40. ^ material (theconversation.com)

Authors: Claire Leavitt, Assistant Professor of Government, Smith College

Read more https://theconversation.com/mayorkas-impeached-is-congress-on-a-witch-hunt-5-ways-to-judge-whether-oversight-is-legitimate-or-politicized-222692

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