DHS lawyers up as Republicans come for Mayorkas’ job

The Department of Homeland Security has hired impeachment attorneys as the new House GOP majority moves to boot Secretary Alejandro Mayorkas over his handling of the southern border, according to three DHS officials familiar with the agreement.

The department has signed a contract with New York-based firm Debevoise & Plimpton to advise administration officials on how to handle document requests and questions from congressional investigators and to defend the department if Republicans move forward with an impeachment trial, according to one of the DHS officials. The firm will represent both DHS and the secretary in his official capacity. The department will pay legal fees.

The Biden administration has said repeatedly it views the GOP threats as a political ploy, but the decision to hire outside lawyers shows it’s nonetheless taking the situation seriously. It also speaks to how unusual this process is: Impeachment proceedings haven’t been brought against a Cabinet member since 1876.

“The Department of Homeland Security has retained outside counsel to help ensure the department’s vital mission is not interrupted by the unprecedented, unjustified, and partisan impeachment efforts by some Members of Congress, who have already taken steps to initiate proceedings,” a DHS spokesperson said in a statement.

DHS does not have the capacity to pull staff away from daily duties to handle both an impeachment inquiry and the deluge of paperwork that would come along with it, one of the DHS officials said. Immigration agencies are only three of the 22 housed within DHS, the third largest Cabinet department. DHS also oversees FEMA, the Cybersecurity and Infrastructure Security Agency, TSA, the U.S. Coast Guard and the Secret Service.

“We do not want this to distract the secretary or the department from the important homeland security, national security work that we do day to day,” a DHS official told POLITICO. “We are protecting the country from terrorist attacks by air, by sea. We are protecting the country from cybersecurity attacks. We are securing the borders.”

The department also doesn’t have any lawyers with impeachment experience. It selected Debevoise & Plimpton over others because of the firm’s experience with similar cases. During the 2020 impeachment of then-President Donald Trump, House Democrats enlisted legal help from David A. O’Neil and other attorneys from the firm. Debevoise & Plimpton has also been bipartisan in its representation, one of the DHS officials said.

The same official said that the terms of the contract are dependent on impeachment proceedings. If Republicans were to announce they were terminating proceedings, the contract would allow DHS to end its agreement with the firm.

DHS also consulted with the Justice Department’s Office of Legal Counsel before finalizing the contract, a DHS official said. The office concluded that this was an appropriate use of government funds, noting the unprecedented nature of the situation.

Lawmakers also have a long history of hiring outside counsel for legal matters on the Hill. In 2011, House Republicans hired Paul D. Clement, the former solicitor general for George W. Bush, to argue on behalf of the Defense of Marriage Act. They started with a $500,000 contract, eventually increasing it to up to $3 million. Taxpayer dollars also paid the bill.

The Biden administration has struggled from the start to curb the influx of migrants at the southern border, hampered by court challenges and Congress’ inability to reach a deal on immigration reform. Mayorkas, as head of DHS, has become the face of the administration’s immigration policy — and a favorite target of Republicans leaning into this issue ahead of the 2024 campaign season.

Mayorkas has testified before Congress more than a dozen times in the last two years but was not brought in for the latest round of border-related hearings held in recent weeks by Republicans.

“Everyone agrees that the immigration system has been terribly broken and outdated for decades. It is my hope that Congress takes that problem and fixes it once and for all,” Mayorkas said in a statement to POLITICO.

“In the meantime, within a broken system, we are doing everything that we can to increase its efficiency, to provide humanitarian relief when the law permits, and to also deliver an enforcement consequence when the law dictates,” he said. “That is exactly what we are doing, and I will continue to do that with tremendous pride alongside the incredible workforce at DHS.” 

The timing and likelihood of an actual impeachment trial involving Mayorkas is uncertain. Both Rep. Jim Jordan (R-Ohio), who chairs the Judiciary Committee, and Oversight Chair James Comer (R-Ky.) have launched a series of hearings, but it would ultimately be up to Jordan to lead an impeachment inquiry. Yet Republicans remain divided on how quickly they should move forward — or whether an impeachment trial is even the best approach.

Some of the more conservative members filed an impeachment resolution against Mayorkas last month, and Rep. Andy Biggs (R-Ariz.), launched his own proposal last week. But even Republicans who want to impeach Mayorkas acknowledged they don’t have the support yet within their own conference. If a vote on the impeachment resolution comes to the floor, the party could afford to lose only four GOP votes.

House Speaker Kevin McCarthy, who has repeatedly threatened to impeach Mayorkas, was asked about a timeline last week.

“We will never use impeachment for political reasons. It’s just not going to happen. That doesn’t mean if something rises to the level of impeachment, we would not do it,” McCarthy said. “So, what you’ll find is the committees are together. They’ll start the inquiry and let it go wherever it takes them.”

A House Democratic aide, when asked about the timeline, said if Republicans “were going to do it in a way that people would find persuasive, they’re not close.”

For his part, Mayorkas has appeared unfazed by the growing GOP chatter, noting in recent interviews that he’s “got a lot of work to do” and has no intention of resigning. On the January day staff informed him about impeachment articles being filed, Mayorkas was in Mexico for the North American Leaders’ Summit. He gave a “solemn nod and said ‘OK’ and returned to the meetings at hand,” said an administration official familiar with the conversation but was not allowed to speak publicly on it.

Mayorkas’ public attitude is on par with his personality behind closed doors, according to a person who’s worked closely with him over the years and asked to remain anonymous to speak candidly about the secretary. He’s someone with a high tolerance for chaos and is deeply committed to his job.

“He’s a good soldier,” the person said. “He’ll just go out and keep on doing it.”

Mayorkas is also a career prosecutor and a compelling politician, the person said, and his likeability could play well with moderate Republicans on the fence about moving forward with the rare move to impeach a Cabinet official.

But aides also know this means investigations are likely to be long and painful for the administration. And Democrats on the Hill are also keenly aware that as the party gears up for 2024, more attention on the border won’t play well with voters.

Eugene Daniels and Jordain Carney contributed to this report.