Highlights: Senate rejects impeachment articles against DHS Secretary Mayorkas

In the end, Sen. Eric Schmitt’s objection to allowing for debate and procedural votes ahead of the Democrats’ motions to dispense with the two articles of impeachment precluded Republicans from putting Democrats in a tough spot with substantive votes.

Republicans had planned to force Democrats to take tough votes, like on the constitutionality of not holding a trial. But because Schmitt objected to a debate agreement, Senate Majority Leader Chuck Schumer, D-N.Y., immediately moved to question the constitutionality of the articles of impeachment. And that meant Republican senators could only force votes on procedural questions like adjourning or going into closed session. 

Schmitt, R-Mo., was pressed on his decision by reporters and responded by saying: “Impeachments aren’t debatable. So if you have an impeachment trial, we don’t debate that — we listen, we hear evidence. All we were asking for is something that has happened every single time articles of impeachment have ever come over the United States Senate.”

Schumer said afterward that Republicans were not “prepared” after they “denied our fair and reasonable offer and didn’t seem to know what to do."

The White House praised Democrats for dismissing the impeachment."Once and for all, the Senate has rightly voted down this baseless impeachment that even conservative legal scholars said was unconstitutional," spokesperson Ian Sams said.

Sen. Chris Murphy, D-Conn., said that the House's impeachment of Mayorkas was political and that it would have set a worse precedent to move forward with a trial.

"This is a different process than we would run other impeachments," he said. "I judge the danger of normalizing the House impeachment process as much graver than the 'dangerous setting of the process/precedent in the Senate.' There was nothing close to high crime or misdemeanor. ... Everyone knows it. It would be irresponsible for us to treat it as serious exercise."

Murphy was the lead Democratic negotiator on a bipartisan border bill that Mayorkas helped craft earlier this year, but which Republicans rejected.

"The irony of all of this is that Mayorkas was in the room for all the negotiations at the request of the Republicans who just voted to proceed to an impeachment trial. ... If we’ve done a trial, and you’d gotten to a final vote, many of those Republicans would have voted against impeachment, I acknowledge that. But Mayorkas was in the room because of the credibility he has with Senate Republicans," Murphy said. "That’s why it’s so wild to me that he is such a subject of animosity for House Republicans because, in the Senate, he seems to have a decent amount of credibility, notwithstanding legitimate disagreements Senate Republicans have with Biden’s immigration policy."

The Department of Homeland Security said Democrats were right to reject the impeachment articles.

The Senate vote "proves definitively that there was no evidence or Constitutional grounds to justify impeachment," DHS spokesperson Mia Ehrenberg said in a statement.

"It’s time for Congressional Republicans to support the Department’s vital mission instead of wasting time playing political games and standing in the way of commonsense, bipartisan border reforms," she said.

House Republican leadership released a statement accusing the Senate of "ignoring its constitutional duty to hold a trial."

“By voting unanimously to bypass their constitutional responsibility, every single Senate Democrat has issued their full endorsement of the Biden Administration’s dangerous open border policies," House Speaker Mike Johnson, R-La., and his leadership team wrote.

"The American people will hold Senate Democrats accountable for this shameful display," the statement continued.

Immediately after the trial ended, Senate Minority Leader Mitch McConnell, R-Ky., addressed members on the floor.

"We've set a very unfortunate precedent here which means that the Senate can ignore, in effect, the House’s impeachment," McConnell said. "It doesn’t make any difference whether our friends on the other side thought he should have been impeached or not: He was."

"And by doing what we just did, we have, in effect, ignored the directions of the House, which were to have a trial," he continued. "We had no evidence, no procedure. This is a day — it’s not a proud day in the history of the Senate."

Sen. John Fetterman, D-Pa., joked with reporters that the impeachment trial was "awesome," calling it "the apex of civil life right now. … It was a miracle."

Asked to respond to Republican warnings that this would set a precedent for future trials, Fetterman responded: "We were all just pissing away all our time here. … This was just like a bad show I was forced to watch."

In a statement released at the end of the Senate trial process, Sen. Jon Tester, D-Mont., said that "what’s happening at our southern border is completely unacceptable" and "the Biden Administration must do more to keep Montana and our country safe."

Tester is up for re-election in red Montana in November and voted with all other Democrats to dismiss the impeachment articles against Mayorkas.

"Montanans want real solutions that secure the border, not partisan games from D.C. politicians," Tester said. "I agree with my Republican colleagues who have said this exercise is a distraction that fails to make our country safer. It’s time for President Biden and Secretary Mayorkas to use their remaining executive authorities to help secure our border, and for Congress to pass bipartisan border security legislation to give law enforcement the resources and policy changes they have said they need to get the job done.”

The Senate voted 51-49 to adjourn the impeachment trial. With that, the Mayorkas impeachment is over.

Sen. JD Vance, R-Ohio, suggested an old prediction of Minority Leader Mitch McConnell's, R-Ky., had come true.

“I believe when Harry Reid blew up the nuclear option for judges, Mitch said you would come to regret it. And I suspect the Democrats will come to regret what happened today," Vance said.

The Senate is voting now to adjourn the impeachment trial.

The Senate voted that Schumer's point of order to rule the second impeachment article is unconstitutional was well taken.

The second article impeached Mayorkas on breach of trust, charging him with lying to Congress about how secure the border is.

Sen. John Thune, R-S.D., has forced a vote to table Majority Leader Chuck Schumer's motion to declare the second impeachment article unconstitutional. It's likely to fail, leading to an eventual vote on Schumer's motion.

Democrats seem to be getting antsy during these votes. Sen. Gary Peters, D-Mich., just yelled “No more debate” as Thune spoke. He also muttered to Democrats around him: "We gave them a chance to fix it" — referring to the bipartisan border control bill that Senate Republicans killed in February.

The Senate is now voting on a motion from Sen. John Kennedy, R-La., to move to executive session.

While Kennedy was speaking, some Democrats said "close debate," appearing to be annoyed with Republicans' strategy.

Having been in that chamber for both Trump impeachment trials and now this, senators are definitely fiddling around more. Several of them appear bored, and senators are laughing and being sillier more than they were in that setting.

The Senate is now voting on a motion proposed by Sen. Roger Marshall, R-Kas., to adjourn for ... more than six months.

He called for the Senate to adjourn until Nov. 6, which is the day after the election. A number of GOP senators laughed and Sens. Tom Cotton, Ark., and Rand Paul, Ky., banged on the table. Democrats yelled no.

On another party-line vote, Kennedy's corrected motion to adjourn until May 1, 2024, was rejected by the Senate.

Sens. John Kennedy, R-La., and Roger Wicker, R-Miss., stood to ask whether Senate Majority Leader Chuck Schumer, D-N.Y., truly believes that lying to Congress is not a high crime and misdemeanor, and thus impeachable. "It is a felony!" Kennedy said.

"Since we’re not allowed to talk among ourselves about the absurdity of this," Kennedy continued, he asked that the Senate be allowed to recess until May 1, 2004.

That is not a typo. After a moment of confusion on the floor, Senate President Pro Tempore Patty Murray, D-Wash., asked if Kennedy wanted to amend his motion.

"2004 would probably be preferable!" he said. "But I'll accept a friendly amendment; we'll make it 2024."

The Senate is now voting on another adjournment motion until April 30, this time proposed by Sen. Rick Scott, R-Fla.

A motion to go to closed session again just failed.

Sen. Mike Lee, R-Utah, raised another motion to bring the Senate into closed session to allow senators to debate the articles. It is expected to fail as well.

Lee argued that the second article of impeachment is more serious than the first, noting that it charges Mayorkas with lying to Congress about security at the border. "If this is not a high crime and misdemeanor, what is? If this is not impeachable, what is?" he said.

The Senate voted 51-48 that Schumer's point of order is well taken, meaning that it ruled that the first impeachment article is unconstitutional. That article had charged Mayorkas with "willfully and systemically" refusing to comply with federal immigration laws.

Sen. Lisa Murkowski, R-Alaska, voted present. Sens. John Thune, R-S.D., and John Cornyn, R-Texas, were spotted speaking with Murkowski during the quorum call earlier. Murkowski has never shared how she plans to vote on a possible motion to dismiss or table the articles with reporters.

Senate Majority Leader Chuck Schumer, D-N.Y., then raised a motion to declare the second article of impeachment unconstitutional as well.

The Senate is now voting on Schumer's point of order that, if passed, would declare the first impeachment article against Mayorkas unconstitutional, killing it.

Democratic Leader Chuck Schumer started off the trial with a motion to declare the first article of impeachment against Mayorkas — that he "willfully" refused to comply with U.S. immigration laws — unconstitutional.

Republican Leader Mitch McConnell called a vote to try to table it but that failed, on the third party-line vote of the afternoon.

Senate Minority Leader Mitch McConnell, R-Ky., just spoke and said that senators know that they are obligated to take the impeachment trial process seriously.

He said he urges his colleagues to consider "that is what the framers actually considered," adding that the process shouldn't be "abused."

He called for the Senate to then vote on tabling Majority Leader Chuck Schumer's point of order. They're voting on that now.

The vote on adjourning until April 30 failed as well, also on a 51-49 party-line vote.

Now Senate Minority Leader Mitch McConnell, R-Ky., is speaking.

The Senate is now voting on a motion proposed by Sen. John Kennedy, R-La., to adjourn until April 30 at noon.

The Senate voted 51-49, along party lines, against Sen. Ted Cruz's motion to go into closed session.

Senators are voting on Sen. Ted Cruz's motion to move into closed session so they can debate. The vote is party line so far; a majority would be needed to pass.

Sen. Ted Cruz, R-Texas, argued that Schumer's point of order is unconstitutonal and said Democrats want the Senate to "vote on political expediency" in order to "avoid listening to arguments."

But, Cruz said the Senate should actually debate it, consider the Constitution and the law.

Schumer rejected Cruz's call for a closed session but they're voting on it now.

Republicans are still deliberating over their next steps while Democrats have set up the next vote to be on Schumer’s point of order. If passed, that would kill the first impeachment article, Schumer's office said. Then the Senate could vote on killing article two.

Everything right now, however, is still fluid.

We're in a bit of a pause right now.

Schumer raised a point of order that the first impeachment article "does not allege conduct that rises to the level of a high crime or misdemeanor as required under Article 2, Section 4 of the United States Constitution and it’s therefore unconstitutional under the precedents and practices of the Senate."

Republicans then put the Senate into a quorum call as they decide what to do. Republicans can be seen on the floor talking about next steps.

Sen. Eric Schmitt, R-Mo., objected to a timing agreement on debate and holding votes that Schumer proposed.

"A fair trial seeks the truth, nothing more, nothing less. I will not assist Sen. Schumer in setting our Constitution ablaze, bulldozing 200 years of precedent. Therefore, I object."

The senators have finished writing their signatures in the oath book, and the sergeant-at-arms made the proclamation: “Hear ye! Hear ye! Hear ye! All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States the article of impeachment against Alejandro N. Mayorkas, secretary of homeland security.”

There will only be milk and water allowed in the chamber during the hearing Wednesday, with coffee and other beverages being strictly prohibited.

Food is also restricted on the Senate floor, with one sweet exception: candy.

The desk of Sen. Markwayne Mullin, R-Okla., is covered entirely in candy, and Sen. Cory booker, D-N.J., could be seen on the floor handing out candy to his fellow Democratic colleagues.

The milk, water and candy rule was also in effect during Trump's impeachment hearings in 2020. Senators told CNBC in 2020 that the energy boost from candy helped them push through those marathon impeachment sessions.

The next step could take a while. Senators are coming up to a front table in the chamber to sign a book stating that they have taken their oath.

Mayorkas is the second Cabinet member to be impeached, but the first to still be in office. When the House impeached William Belknap in 1876, he had resigned as war secretary just hours earlier. So when the Senate tried the case, Belknap was a private citizen.

On March 2, 1876, Rep. Hiester Clymer, D-Pa., rose to speak on the House floor. Clymer, who chaired the Committee on Expenditures in the War Department, said his panel had uncovered “official corruption and crimes such as has no parallel in our own history, or, so far as I know, that of any other country.”

The man at fault, Clymer said, was Belknap, who was war secretary in President Ulysses S. Grant’s administration. This was the Gilded Age, and Belknap was known for “extravagant Washington parties,” which raised questions, seeing as he was on a government salary.

The Senate trial process has begun, Sen. Patty Murray, D-Wash., announced. Then Schumer said that Sen. Chuck Grassley, R-Iowa, would administer the oath to her. After that, all 99 senators will be sworn in.

Sen. John Fetterman, D-Pa., wearing a suit today, thanked Republicans on his way to the chamber for "bringing 'The Jerry Springer Show'" to the Senate.

"We all know it's over," he said. "We have enough already bad performance art. We're not really adding anything to this."

He joked about also wearing a suit today, saying: "Any time I can spend less time in a suit and listening to bad performance art, I support that."

At an unrelated event in New York today, Mayorkas mostly skirted questions on the articles of impeachment against him.

“The Senate is going to do what the Senate considers to be appropriate,” he told reporters.

He did not elaborate further but added that he would be returning to Washington this afternoon since “that is where my office is and I have work to do.”

Mayorkas was in New York to promote the launch of a new campaign aimed at preventing online child exploitation.

Sen. Josh Hawley, R-Mo., said he think this will be the end of the impeachment in the Senate, asking why there would be an incentive to go through with any future trials if Democrats dismiss this one.

"If they do what they say they're gonna do here, this will be the end of the impeachment. They're basically destroying impeachment and the Constitution," he said.

In January 2021, 45 Senate Republicans voted to dismiss Donald Trump’s Jan. 6-related impeachment without a trial. That trial only occurred because they lacked the majority vote needed to block it, with five Republicans joining all Democrats against dismissing it.

The GOP votes to dismiss included many GOP senators who are now pushing for a Mayorkas trial, arguing that it’s an indispensable Senate tradition. That includes Sen. Ted Cruz, R-Texas, who said Tuesday: “The Senate has a clear obligation under the Constitution and 200 years of precedent: We need to hold a trial. We need to allow the managers to present the evidence. And then every one of us who is following the law should convict and remove Alejandro Mayorkas for aiding and abetting a criminal invasion of the United States of America.”

Sen. Patty Murray, D-Wash., has taken the presiding spot. She’ll call senators to the floor using a "quorum call" here soon.

Sen. Thom Tillis, R-N.C., said he still feels the same as he did earlier today and expects the trial to wrap by midafternoon, otherwise there would be too many points of order.

"I’m not changing my dinner plans," he told reporters.

The House approved 11 GOP impeachment managers, who will prosecute the case against Mayorkas in the Senate.

They are: Reps. Marjorie Taylor Greene of Georgia, the author of the impeachment resolution; Homeland Security Committee Chairman Mark Green of Tennessee; Michael McCaul of Texas, a former chair of the Homeland Security panel; August Pfluger of Texas; Michael Guest of Mississippi; Andrew Garbarino of New York; Laurel Lee of Florida; and four members of the far-right House Freedom Caucus: Andy Biggs of Arizona, Clay Higgins of Louisiana, Ben Cline of Virginia, and Harriet Hageman of Wyoming.

At each senator's desk is a notepad and a copy of the impeachment articles. They also have a copy of the resolution that named the House impeachment managers.

Senators are making their way to the chamber.

The trial will have a "Wild West" feeling, a Senate sources tells NBC News. Schumer is expected to ask to unanimously pass a resolution to establish a procedure for the trial that would include:

• A period of debate among senators
• Votes on trial resolutions
• Votes on GOP points of order
• Votes on motions to dismiss the articles

Republicans, however, are expected to object to this, and then the Senate will enter an unstructured process, where Schumer would likely move to immediately table one of the articles.

Chief Justice John Roberts will not preside over the impeachment trial — that’s only for sitting presidents. Because Mayorkas is a Cabinet member, Senate President Pro Tempore Patty Murray, D-Wash., will preside.

Beginning at 1 p.m. ET, she will be sworn in, and then she will swear in the 99 other senators as jurors. Senators will then sign the impeachment oath book, four at a time.

Mayorkas is not expected to attend the trial, nor are any defense attorneys.

Senators will remain in their seats for the trial and will vote from their seats. They must lock up their phones in their respective party cloakrooms during the trial.

Senate Minority Leader Mitch McConnell, R-Ky., said on the Senate floor that tabling the articles "would mean declining to discharge our duties as jurors. It would mean running both from our fundamental responsibility and from the glaring truth of the record-breaking crisis at our southern border."

"I, for one, intend to take my role as a juror in this case seriously, and I urge my colleagues to do the same," he said.

Sen. Kevin Cramer, R-N.D., an ally of former President Donald Trump, has dismissed the Mayorkas impeachment effort as “obviously dead on arrival” in the Senate and “the worst, dumbest exercise and use of time.”

Sen. Mitt Romney, R-Utah, told reporters this month: “I don’t think the constitutional test has been met.”

Romney wouldn’t say whether he’d support a vote to table or dismiss the impeachment articles from the outset of the trial, saying he wanted to look at the legal process. “But I think there’s no question but that this is not going to result in a conviction, because the test of a high crime or misdemeanor being committed has not been alleged, and as a result of that, there will not be a conviction,” he said.

Sen. Lisa Murkowski, R-Alaska, said she'd like "an opportunity at least for some discussion once we are sworn in" as jurors but suggested that the articles don't rise to impeachment. "I just don’t see that it rises to the level of high crimes and misdemeanors. And, instead, you have a Cabinet secretary that is fulfilling the policy of the administration.”

The House impeached Mayorkas in February, with all but three Republicans voting in favor. That made him just the second Cabinet member in U.S. history to be impeached and the first since 1876.

While it has been 148 years since the last successful impeachment of a Cabinet member, there have been several failed attempts in that time. Opening an impeachment investigation into a Cabinet member of the opposing party has become especially common in the past two decades.

Read more about past impeachments here.

Talks to get an agreement on how long senators will debate the impeachment and a deal on a number of votes on points of order were blocked last night after Sen. Eric Schmitt, R-Mo., objected to the proposal, a Senate source said. Schmitt may not be the only Republican who objected to the agreement.

Schmitt, who is a part of the group of conservatives demanding a trial, said in a statement to NBC News that he is objecting because he wants a full trial, and he will not “aid Senator Schumer in lighting the match to set hundreds of years of precedent, the Senate, and our very Constitution ablaze.”

“The Senate must hold a full impeachment trial of Secretary Mayorkas, or at the very least, refer the articles to an impeachment committee," Schmitt said.

"Never before have articles of impeachment been tabled or dismissed when the subject was alive and still in office," he continued. "The American people deserve to hear all of the facts and we must do our jobs, and I plan to fight to ensure that we do just that.”

Senate Majority Leader Chuck Schumer, D-N.Y., made the case for dismissing the impeachment as he opened the Senate this morning.

"For the sake of the Senate's integrity, and to protect impeachment for those rare cases we truly need it, senators should dismiss today's charges," he said on the floor.

Schumer added, however, that he hopes to get an agreement with Republicans on timing, giving them the chance to offer votes on points of order before Democrats move to dismiss the charges.

The Senate convened at 11 a.m. ET and is working on passing a bill to reauthorize FISA Section 702, a key but controversial spying power, before it lapses at the end of this week.

The Senate will break from normal business to begin the impeachment at 1 p.m.

Sen. John Kennedy, R-La., said that Democrats and Senate Majority Leader Chuck Schumer ought to hold a full impeachment trial, accusing Schumer of trying to "sweep it under the rug."

“He’s going to say that this is— the allegation did not constitute high crimes or misdemeanors and it shows that it’s just a policy dispute. He’s dead wrong. He doesn’t know what the evidence is going to show. He hasn’t seen it," Kennedy said.

Kennedy said he plans to bring at least one point of order on the floor before the trial wraps up. Asked what that point of order would look like, Kennedy said only: “It’s going to be beautiful. It’s going to be huge.”

House Republicans muscled through a vote to impeach Mayorkas over his handling of the border on Feb. 13, exactly one week after their first attempt to impeach him collapsed spectacularly on the floor.

The vote was 214-213, with three Republicans opposing the impeachment for a second time: Ken Buck, of Colorado, Tom McClintock, of California, and Mike Gallagher, of Wisconsin.

“From his first day in office, Secretary Mayorkas has willfully and consistently refused to comply with federal immigration laws, fueling the worst border catastrophe in American history,” Speaker Mike Johnson, R-La., said in a statement at the time.

President Joe Biden blasted House Republicans immediately after the vote.

“History will not look kindly on House Republicans for their blatant act of unconstitutional partisanship that has targeted an honorable public servant in order to play petty political games,” he said in a statement.

Senate Democrats hope to quickly dismiss the House’s articles of impeachment against Mayorkas this week and move on to other matters.

But Senate Republicans, demanding a full impeachment trial or the creation of a special impeachment committee, want to make the coming days as politically painful as possible for Mayorkas and his Democratic allies.

A band of conservatives, led by Sen. Mike Lee, R-Utah, plans to throw up procedural roadblocks, try to delay the issue and put the spotlight on Democrats’ refusal to conduct a trial and hold Mayorkas accountable for what they view as his failure to secure the southern border.

Read the full story here.

All 100 senators will be sworn in as jurors in Mayorkas’ impeachment trial beginning at 1 p.m. ET.

He faces two articles of impeachment. The first accuses him of “willfully and systemically” refusing to comply with federal immigration laws leading to “millions” entering the U.S. illegally. The second article says Mayorkas “breached the public trust” by making false statements to Congress and knowingly obstructing congressional oversight of the Homeland Security Department.

It is unclear exactly how long the trial will last. Senate Majority Leader Chuck Schumer, D-N.Y., has said the Senate will deal with the matter “expeditiously.”