By Fred Lucas, The Daily Signal |August 24, 2023
The House of Representatives could move on an impeachment inquiry into President Joe Biden when Congress reconvenes in September, House Speaker Kevin McCarthy says.
McCarthy, R-Calif., said Tuesday that action is contingent on Biden and the White House’s cooperation with congressional committees.
Here are six things to know if Congress does proceed with an impeachment inquiry targeting Biden.
1. Are There Grounds to Impeach Biden?
The House Oversight and Accountability Committee has gathered enough evidence to bring a case against Biden, said Andrew McCarthy, a former assistant U.S. attorney for the Southern District of New York who isn’t related to the House speaker.
“House Republicans have enough or more evidence than House Democrats ever had against [Donald] Trump in the first impeachment over Ukraine, where they couldn’t even come up with a crime to impeach him over,” McCarthy told The Daily Signal.
In July, Sen. Charles Grassley, R-Iowa, released an FBI form that showed a confidential informant reported that executives with Burisma, a Ukrainian energy company, paid a $5 million bribe to then-Vice President Biden in 2016 to help scuttle a Ukrainian government investigation of the company.
Last week, the House Oversight and Accountability Committee learned that while vice president, Biden used a pseudonym for email contacts forwarded to his son Hunter Biden and a business partner.
Earlier this month, newly released bank records showed the amount of money from foreign individuals and entities that poured into Biden family companies reached $20 million during Biden’s time as vice president under President Barack Obama from 2009 through 2016.
“No president was impeached for a high crime and misdemeanor for an offense before taking office,” McCarthy said. “Bribery gives another aspect to this. I can’t imagine a president was expected to slip bribery. Fealty to another regime is precisely what the Founders worried about.”
He added: “You would not have to prove bribery in an impeachment the same as in court.”
The financial deals Hunter Biden made with Chinese and Ukrainian interests should be too serious for the House to ignore, said Mike Davis, founder of the Article 3 Project, a conservative legal group.
“Foreign bribery is one of the most serious, most impeachable crimes in the Constitution,” Davis, a former chief counsel for nominations for Republicans on the Senate Judiciary Committee, told The Daily Signal.
“We don’t have a republic worth defending if Republicans did nothing while partisan prosecutors imprisoned their political enemies while coddling their political allies,” Davis added.
2. Can a President Be Impeached for Alleged Offenses Before Taking Office?
An important caveat is that the evidence unearthed so far by the House committee panel surrounds the president’s conduct while vice president in the Obama administration.
The three presidents who have been impeached by the House—Andrew Johnson, Bill Clinton, and Donald Trump—were scrutinized for actions while in office.
However, two federal judges were impeached over their actions before they entered office, noted Curt Levey, president of the Committee for Justice, a conservative legal group.
In 1912, Judge Robert W. Archbald of the U.S. Court of Appeals for the 3rd Circuit was impeached by the House on 13 articles and convicted and removed by the Senate, as detailed in a 2015 Congressional Research Service report.
The articles of impeachment alleged corruption in Archbald’s current position as well as his previous office as a U.S. District Court judge for the Middle District of Pennsylvania.
“Just look at the impeachment clause [of the Constitution] and it doesn’t really say one way or another,” Levey said. “It seems to me that the Founders didn’t think someone who committed bribery before they were president would have immunity from impeachment after getting elected. The impeachment clause does not say an offense has to occur while in office.”
The other example occurred in the 2010 House impeachment and Senate conviction and removal of District Judge Thomas Porteous of the Eastern District of Louisiana for conduct that began while he was a Louisiana state judge. The fourth article of impeachment said Porteous made false statements to the Senate and FBI in connection with his nomination and confirmation.
Such an impeachment ought to require a link between a present and past job, said Thomas Jipping, former chief counsel for the Senate Judiciary Committee during the Porteous impeachment and now a senior legal fellow at The Heritage Foundation. (The Daily Signal is Heritage’s multimedia news organization.)
“With Porteous, we made a point of connecting that to his current service, which I don’t think is difficult to do in Biden’s case,” Jipping said.
The Heritage legal fellow added:
You can impeach someone for something they did before they occupied their current office. I do believe that it’s important to connect it to the current office, because the point of impeachment is that someone should not occupy their current office. So there should be some nexus, some connection there.
The second Trump impeachment trial also might offer some guidance in an unconventional situation, said Josh Blackman, a constitutional law professor at South Texas College of Law Houston.
“The question is whether a president can be impeached for something he did before he was president,” Blackman, also an adjunct scholar at the libertarian Cato Institute, told The Daily Signal.
“There is some related precedent to this, with Trump being impeached in the House while he’s still president, but the Senate impeachment trial occurs when he’s no longer president,” he said. “So, can you impeach a president for a possible bribery scheme he engaged in while he was vice president?”
3. Would Congress Have More Leverage in an Impeachment Inquiry?
During an interview on Fox Business, the House’s McCarthy said that if the Biden family and the White House don’t cooperate with investigators, an impeachment inquiry “gives the apex of power to Congress when it comes to our subpoena power.”
Legal experts differ on the impact that a formal inquiry would have on the House’s capacity for oversight.
The reason labeling an investigation as an impeachment inquiry could be relevant is largely because the role of congressional oversight in obtaining documents and testimony generally must have a legislative endgame.
Under an impeachment inquiry, however, the sole purpose would be oversight to reach a conclusion about an official’s fitness to serve.
That said, the Supreme Court ruling in November that Congress could obtain the tax records of Trump likely would establish that Congress could have wide latitude, Blackman said.
In the Trump tax returns case, House Democrats argued they wanted the records in connection with potential tax legislation.
Blackman said the distinction between an impeachment inquiry and conventional congressional oversight could matter more in witness testimony than in obtaining documents.
“As for oversight, I don’t know that it makes much difference legally in terms of accessing documents,” Blackman told The Daily Signal. “It might be easier to compel witness testimony because a pending impeachment has a sense of urgency.”
However, each case is different, and a target always will raise legal questions about the scope of an inquiry, Jipping said.
“The Constitution gives Congress authority for oversight, but limits investigative power to legislative authority,” Jipping told The Daily Signal. “That would shift in an impeachment inquiry and give the House more power.”
The full House would have to vote to approve an impeachment inquiry that would set the guidelines for what committee or committees conduct the investigation.
In modern times, this role has gone to the House Judiciary Committee. However, in the 2019 Trump impeachment inquiry, the House Intelligence Committee conducted an investigation and issued a report to the Judiciary Committee.
“Operating under the authority of an impeachment inquiry resolution, the relevant committee can do what it needs to do,” Jipping said. “That committee cannot do what it needs to do if it is only relying on its legislative power.”
4. Isn’t an Inquiry Just Formality Before Impeachment?
A House impeachment inquiry doesn’t always end in an impeachment.
In the first serious consideration of impeaching a president, Rep. John Quincy Adams, a former president and Whig from Massachusetts, helped lead an investigation against President John Tyler. However, the Whig majority decided against going all the way.
In 1970, House Republican leader Gerald Ford of Michigan—who would become president in 1974—managed to push a Democrat-controlled House to investigate a possible impeachment of liberal Supreme Court Justice William O. Douglas.
This inquiry examined Douglas’ financial ties to a hotel and casino owner. The House appointed a special Judiciary subcommittee to investigate. After seven months, the subcommittee of three Democrats and two Republicans didn’t find grounds for impeachment.
It was in the context of the Douglas investigation that Ford uttered his famous and controversial words about impeachment.
“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” the future president asserted. “Conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.”
5. What About Political Fallout?
If House Republicans fail to proceed against the president with an impeachment inquiry, it would be politically costly to their majority, warned Davis, founder of the Article 3 Project.
“If Republicans don’t move forward on an impeachment inquiry in the face of evidence the president of the United States is compromised, these House Republicans deserve to lose reelection,” Davis, also a former chief counsel for nominations for the Senate Judiciary Committee, told The Daily Signal.
Davis, however, said he isn’t certain Republicans will act.
“The D.C. swamp is the only place on the planet where the reptiles lack backbones,” he said.
Inaction could be likely, said McCarthy, the former federal prosecutor.
“The question is whether Speaker McCarthy has the votes. He won’t proceed with an impeachment inquiry unless he has the votes,” the legal commentator and former prosecutor told The Daily Signal. “And [House Oversight Chairman] James Comer is pulling in a lot of the same information they would obtain in an impeachment inquiry.”
McCarthy noted that House Republicans won only a narrow majority in the 2022 midterm elections.
“Republicans notoriously don’t have the same party discipline that Democrats do,” McCarthy said.
McCarthy said less conservative Republicans are more interested in launching a “blistering assault” on Biden’s policies for the 2024 campaign rather than in an impeachment case.
6. Any Chance the Senate Would Remove Biden?
Legal and political experts consulted by The Daily Signal were all in agreement that even if the evidence is insurmountable, there is no chance that a two-thirds majority of the Democrat-controlled Senate would vote to remove Biden from office.
Levey compared the current political climate with that of the Watergate scandal, when Republican senators warned President Richard Nixon that he likely wouldn’t survive a Senate impeachment trial. (Ford, Nixon’s vice president, became president when Nixon resigned Aug. 8, 1974.)
“The days of Nixon, when Republicans let him know many or most GOP senators wouldn’t vote for acquittal, are over,” Levey said, adding:
Democrats have not indicated anything would move them closer to where Republicans were with Nixon. They have smeared whistleblowers, moved the goal post, and stonewalled. If there was a recording of Biden saying he would provide favors for China and Ukraine, there would not be a single Democratic vote for impeachment, no matter how airtight the evidence. There is zero chance of a Senate conviction.
McCarthy, the former federal prosecutor, warned it could end in Biden and supporters declaring victory after the Senate trial.
“Why would they want an impeachment that is doomed to fail in the Senate?” McCarthy, the former prosecutor, said. “He probably should be impeached and removed over it. But Biden would be acquitted in a Senate trial. So why would you give Biden a victory?”
Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal. Lucas is also the author of "The Myth of Voter Suppression: The Left's Assault on Clean Elections." Send an email to Fred.
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