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Biden impeachment probe may weaken congressional power, experts say

An inquiry with fewer specifics could give the public a reason to dismiss as political the tools to keep a president in check

Speaker Kevin McCarthy announces he is directing the House to open a formal impeachment inquiry into President Joe Biden on Tuesday.
Speaker Kevin McCarthy announces he is directing the House to open a formal impeachment inquiry into President Joe Biden on Tuesday. (Bill Clark/CQ Roll Call)

The way the House GOP launched its impeachment investigation against President Joe Biden this week threatens to cheapen a process meant to address the highest levels of constitutional misconduct, experts on the process said.

Speaker Kevin McCarthy signed off on the inquiry with much less context and specifics than in previous impeachment efforts, which ultimately could give the public a reason to dismiss them as political and weaken the legislative branch’s powerful tool to keep a president in check, the legal experts said.

Plus, the California Republican announced the formal impeachment inquiry without a House vote — a move he previously criticized when former Speaker Nancy Pelosi did it in 2019 before holding such a vote about a month later.

And McCarthy’s decision came under intense pressure from hard-line conservatives as he attempts to avert a government shutdown over funding and escape potential threats to his speakership.

Frank O. Bowman III, an emeritus law professor at the University of Missouri who wrote a book on the history of impeachments, said the gravity of the tool is undermined if it becomes defined by “partisan silliness.”

“This behavior by Republican House members is just astoundingly self-destructive of the prerogatives of the institution that they serve,” said Bowman. “Because it, of course, devalues impeachment as a meaningful tool to deal with genuine presidential misconduct.”

More broadly, lawmakers could run the risk of denigrating the legitimacy of their own customary demands for information if they start playing games with congressional power to compel information from the president and the administration, Bowman said.

That can “create a situation where presidents of both parties just throw up their hands and say, ‘Look, these guys never operate in good faith, and we’re just going to refuse any subpoenas that they send us,’” he said.

Philip Bobbitt, a law professor at Columbia University who in 2018 added to and updated a version of an authoritative book on impeachment, said he fears that the process is going to become a tactic in the political market.

Bobbitt also pointed to the House not holding a vote on opening the impeachment inquiry, saying it adds to a political mix where politicians try to discredit their opponents instead of using compromise to win them over.

Biden allegations

McCarthy, in his brief announcement, said the investigation was based on “allegations of abuse of power, obstruction and corruption.”

Among his reasons without adding further detail, the California Republican pointed to bank records that “show that nearly $20 million in payments were directed to the Biden family members and associates through various shell companies,” transactions “involving the Biden family and other business associates that were flagged as suspicious activity by U.S. banks,” and how “a trusted FBI informant has alleged a bribe to the Biden family.”

McCarthy also said Biden “used his official office to coordinate with Hunter Biden’s business partners about Hunter’s role in Burisma, the Ukrainian energy company,” and he said “it appears that the president’s family has been offered special treatment by Biden’s own administration.”

McCarthy cast an impeachment probe as a way to “give our committees the full power to gather all the facts and answers for the American public,” but he did not make immediately clear if or how ongoing probes from those panels would change. No definitive evidence has been made public that Biden took official actions at the direction of his son’s business partners.

Michael Gerhardt, a law professor at the University of North Carolina who testified as a constitutional expert before the House Judiciary Committee during former President Donald Trump’s first impeachment proceeding, said McCarthy ordered the impeachment probe based on “no evidence whatsoever.”

“In that way, this inquiry is virtually unique in American history,” Gerhardt wrote in an email response. “There was evidence produced to initiate the inquiries against Nixon, Clinton, and Trump twice, but none here.”

Gerhardt called the impeachment inquiry against Biden “an outcome in search of a process.”

In 2019, Pelosi had resisted calls from some within her party to start impeachment action against Trump after the release of the lengthy investigation and report from former special counsel Robert S. Mueller about whether Trump obstructed his probe into Russian interference in the 2016 presidential election. Pelosi sent strong signals that she wanted to avoid such a divisive move and let the voters decide in 2020 whether to punish Trump for his alleged misdeeds.

Eventually, Pelosi announced an impeachment inquiry in September 2019 after evidence that Trump sought Ukraine’s help in digging up dirt on a political foe, which Democrats described as endangering national security for political gain. The House voted in October 2019 to approve a resolution that set out rules for an impeachment process.

Democrats again launched impeachment proceedings against Trump over his actions related to the Jan. 6, 2021, attack on the Capitol, which they described as an attack on the nation’s democracy itself.

Hill reaction

The House now steps into the third presidential impeachment action in four years.

House Republican Conference Chair Elise Stefanik said Wednesday that the inquiry is about transparency and answers for the American people. Stefanik said the probe is also about accountability for what she believes will uncover the “biggest political corruption scandal in our nation’s history.”

“These are allegations of abuse of power, obstruction and corruption and they warrant further investigation by the House of Representatives,” she said.

House Minority Leader Hakeem Jeffries on Tuesday called it an “illegitimate impeachment inquiry,” saying there is not a shred of evidence that Biden committed an impeachable offense or a crime. The New York Democrat slammed it as a waste of time and taxpayer dollars.

Rep. Andy Biggs, an Arizona Republican who sits on two of the three committees connected to the impeachment inquiry, expressed bafflement at arguments that an impeachment inquiry would damage the House as an institution, mentioning that Democrats brought two impeachment hearings against Trump. Biggs said the evidence ties then-Vice President Biden to corruption and the topic deserves to be investigated more thoroughly.

Rep. Ted Lieu, D-Calif., said the two impeachments that Democrats brought against Trump had evidence.

“Whether or not you believe that the Senate should have convicted, there was not only actual evidence but enough evidence that the House passed articles of impeachment twice,” he said. “This impeachment inquiry will not lead to any articles of impeachment that will pass because there is no evidence.”

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