I don’t have much more to add to what I argued two months ago, largely based on the book I wrote on impeachment a decade ago.

The contention that the two articles the House alleged against Homeland Security Secretary Alejandro Mayorkas do not state impeachable offenses is wrong. To the extent some contend that the Framers thought about but chose not to make the impeachable-offense standard “maladministration,” opting instead for “high crimes and misdemeanors,” that proves too much. All abuses of power amount to maladministration at some level of generality. By not adopting “maladministration” as the standard, the Framers were trying to discount trivial maladministration, not read maladministration out of impeachment. That would be impossible. Mayorkas is accused of profound dereliction of duty; that is serious maladministration, which is exactly what the Framers were aiming at.

The fact that his conduct is probably not criminally prosecutable is beside the point. Impeachment does not require a penal crime. As Hamilton memorably observed in Federalist No. 65, it is a political offense sounding in abuse of the power entrusted to a public official, not in common crime.

Dereliction of duty is such a political offense — in addition to being serious maladministration. Failing to enforce Congress’s immigration law and igniting a crisis of illegal immigration — hordes twice as large as the population of Los Angeles — is a staggering abuse of power. Many extraordinarily serious abuses of power are not penal crimes — although they would qualify as constitutional “high crimes and misdemeanors.” And how remarkable that Democrats would impeach Trump in the 2019 Ukraine kerfuffle — over abuse of power, without a penal crime — and then straight-facedly claim that Republicans failed to state an impeachable offense.

I can’t get too whipped up about all this because House Republicans knew they had no chance of getting Mayorkas convicted and removed; they were engaged in a political exercise to rivet the country’s attention to the border (an exercise I support). Today, Senate Democrats merely parried this move, preventing Republicans from spotlighting Biden’s border crisis for political gain.

For the most part, this is politics, not law. To the extent there is law to be gleaned, it’s amusing that Senate Democrats tried to claim the constitutional high ground by dismissing the allegations as non-impeachable offenses. Of course, constitutionally speaking, that is not the Senate’s call. The Constitution vests the House with plenary authority over what an impeachable offense is. The Senate’s job is to try the case and acquit if it thinks the evidence is too weak. To draw a criminal law analogy, trial jurors do not get to refuse to consider a case because they think the grand jury applied the wrong standard in approving the indictment; the trial jury can acquit if the case is not proved — it’s not the jurors’ job to second-guess the grand jury.

All that said, as I contended in the above-linked column, the serious flaw in the House impeachment of Mayorkas is that he is the wrong target. He was (and is) carrying out Biden’s policy, not making his own. The Framers established a unitary executive; the point of that was to prevent presidents from escaping accountability by sloughing off abuses of power on subordinate officials.

That House Republicans would go to the burdensome trouble of convening an impeachment inquiry against Biden, yet not make the border the top focus of that inquiry — even as they impeached Biden’s homeland security secretary over Biden’s border nonenforcement policies — boggles the mind. It gave Senate Democrats an opening to argue that House Republicans can’t be taken seriously. Not surprisingly, Senate Democrats took the opening.