Speaker Kevin McCarthy took the rare step on Tuesday of announcing the launch of an impeachment inquiry into President Joe Biden over his son Hunter’s foreign business dealings.
The House has voted to impeach just three Presidents: Andrew Johnson, Bill Clinton, and Donald Trump, who was impeached twice. But even the launch of an impeachment inquiry against a President has only happened a handful of times. Two impeachment experts tell TIME that there is less evidence implicating Biden of wrongdoing than in any of those previous inquiries.
"This is very disturbing for people who study past impeachments, because impeachment is really a very extreme measure,” says constitutional scholar Philip Bobbitt, a professor at Columbia Law School and expert on the history of impeachment who co-authored an updated edition of Charles Black’s classic legal text, Impeachment: A Handbook, in 2018. "I honestly don't know that there is any evidence tying the president to corrupt activities when he was vice president or now."
Frank Bowman, professor emeritus at the University of Missouri school of law and author of the book High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump, said that McCarthy’s decision did not appear to be based on the evidence House Republicans have gathered thus far.
“Biden's Republican pursuers have got exactly zero, zip, bupkis, on any matter that might be impeachable,” says Bowman.
The Constitution gives Congress the right to impeach and remove from office a president, vice president, or federal civil officer for committing “treason, bribery, or other high crimes and misdemeanors.” Historically, before the House votes on impeachment itself—the misconduct charge brought by a legislative body—it has usually launched an impeachment inquiry, a formal mechanism that moves the process along. However, an inquiry is not a legal requirement for impeaching a president, and the rules around what constitutes one are poorly defined.
According to Bowman, setting aside whether the five previous presidents who faced impeachment proceedings ought to have been impeached and convicted, there was at least some evidence indicating that they committed misconduct. The impeachment inquiry into President Richard Nixon, who resigned before the House could formally impeach him, was preceded by a special prosecutor investigation examining his ties to the Watergate burglary, as well as a Senate Special Committee inquiry into the break-in that stretched more than a year and reporting by journalists suggesting that responsibility for the incident and attempts to cover it up stretched into the administration. Two decades later, nearly a month before the House launched an impeachment inquiry into President Bill Clinton, independent counsel Ken Starr released a report outlining 11 possible grounds for impeachment, including lying under oath and obstructing justice.
“In every single case, there was very significant evidence of presidential wrongdoing before the formal inquiry was begun,” Bowman says, “The House, and House leadership, took the responsibility of formally opening such an inquiry extremely seriously. Nancy Pelosi, in the first impeachment, resisted calls for impeachment of Trump for two years.”
McCarthy’s inquiry, Bowman suggests, lacks that discipline.
“What they're doing here is absolutely shocking,” says Bowman, who added that House Republicans “have no interest at all in preserving the basic integrity of the process, or indeed their own power as legislators in legitimate opposition and tension with the executive branch.”
House Republicans have spent all year investigating Hunter Biden in hopes of proving that Joe Biden profited off his son’s business dealings, particularly while Joe Biden was Vice President. There has been no conclusive evidence indicating Joe Biden did anything wrong.
McCarthy previously indicated that the full House would hold a vote to open an impeachment inquiry into Biden. Such a vote would need the support of nearly every Republican in the narrowly-divided chamber. But nearly 20 House Republicans have expressed resistance to voting for it, and a full House vote could open them up to political liability.
The Speaker’s decision to open the inquiry without a vote has precedent; Pelosi did the same thing ahead of Trump’s first impeachment, holding a full House vote to formally endorse the inquiry only weeks later. Trump’s second impeachment, following the January 6, 2021, attack on the Capitol, was not preceded by any inquiry at all. Congress has also voted to impeach federal judges without first opening inquiries.
Back in 2019, when Democrats controlled the House, McCarthy and his Republican allies slammed them for opening an impeachment inquiry against Trump without a vote, suggesting that doing so made the process illegitimate.
“The fact that, for a period of time between September 24 and October 31 of that year, the impeachment inquiry for Trump was going on without a full House vote, became an excuse for Republicans, first in the House, and then in the Senate, to vote against impeachment for Mr. Trump,” Bowman says.
There are no clear standards for launching an impeachment inquiry, nor are there specific signifiers differentiating it from other kinds of investigations. Ultimately, the decision to initiate one is usually left up to House leadership.
“To the extent they have a plausible end game here, other than just to keep this in the news and to dirty up Biden broadly speaking, presumably it will be to issue subpoenas that that are sufficiently intrusive, either to Biden's personal life or administration workings, that Biden will resist, and then to try to impeach him for obstruction of Congress,” says Bowman.
There’s some historical precedent for that theory; the third article of impeachment ultimately issued against Nixon centered on his refusal to comply with congressional subpoenas brought as part of the impeachment inquiry into him. Plus, McCarthy previously suggested that boosting Congress’ ability to subpoena Biden’s financial documents was a key motivation for the inquiry.
Both Bowman and Bobbitt suggested the current inquiry could weaken the federal system of checks and balances by devaluing the very concept of impeachment.
“This is supposed to be the most extreme sanction in American politics, and if you reach for it every time you think it'll help you in the polls, I fear it will become degraded,” Bobbitt says. “It just becomes one more very divisive, poisonous event in a Congress that is already deeply divided and alienated."
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