Joe Biden appears to have committed impeachable offenses, but an impeachment fight is likely to be a losing proposition for Republicans.
Joe Biden appears to have committed impeachable offenses, but an impeachment fight is likely to be a losing proposition for Republicans.
H ouse Speaker Kevin McCarthy today broke the seal on the “I” word, announcing plans for a formal House inquiry into impeaching Joe Biden. He has not indicated whether the full House will vote before commencing such an investigation, a step Nancy Pelosi’s Democrats skipped in 2019, for which McCarthy criticized them at the time. Given the narrow Republican majority and open questions from some members about supporting a probe, it’s unclear if McCarthy would have the votes.
If everything alleged by Republican investigators is true, Biden has committed impeachable acts. Moreover, an impeachment inquiry may be necessary in order to get to the bottom of those allegations. But based on what we know now, impeaching Biden would be imprudent, politically futile, and potentially costly to Republican chances of keeping the House in 2024. It would also further degrade the impeachment mechanism as a genuine tool of accountability. McCarthy has proven the naysayers wrong before, but he may well be marching his caucus into a trap of their own devising.
Bribery and Other High Crimes and Misdemeanors
The Founding Fathers were deliberately vague in defining the grounds for impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors.” They committed the decisions of impeachment and conviction to the elected political branches, rather than detailing a legal standard that could be followed by courts on the basis of textual interpretations. Alexander Hamilton, in Federalist No. 65, said of impeachment:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
There is hardly anything that would have alarmed the Founders more than the prospect of the president being compromised by payoffs from foreign governments. Liberals and progressives knew this back when they were focused on the foreign-emoluments clause as a potential weapon against Donald Trump. Hamilton himself wrote in Federalist No. 22:
One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. . . .
In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.
Later, both Hamilton and Jay contended with opponents’ arguments that the Senate might not be the best judge of impeachments because it would be implicated in ratifying corrupt treaties — arguments reflecting the pervasive concern that the president could be bribed into selling out the country. That is precisely why the two offenses mentioned by name in the impeachment clauses are treason and bribery.
Back in 2019, House Democrats pushed for a broad reading of “bribery,” with Adam Schiff arguing that “Bribery, first of all, as the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.”
That was a stretch then and still is, but the Founders would have easily considered the charges against Biden as reaching the heartland of impeachment: foreign state-connected businesses paying the family of the then–vice president in order to obtain access to his influential position, and the vice president knowingly participating in this plan and helping to conceal it through lies and, it would seem, the use of a false name in his communications.
Broadly speaking, American history suggests that impeachments are most often successful when they combine both something that looks like crime with some connection to official duties. We have yet to find express criminality by Biden himself, but there is surely the reek of foreign corruption. That is true even if the money went only to Biden’s close family, even ignoring Hunter Biden’s comment that he was compelled to give half his income to his father. And while Biden is no longer vice president, he can properly be held to account now for his conduct in a prior office.
Prudence and Precedent
What is impeachable within the impeachment clauses has, however, never been the entire question. As I argued in 2019, Trump may have abused his power in his dealings with Ukraine, but his conduct was in enough of a gray area that there were multiple, weighty reasons for the Senate to acquit on grounds of prudence: a divided public, an impending election (in which the voters ended up defeating Trump), and a sense that the failure of the 1998–99 Bill Clinton impeachment had established a high precedential bar for presidential impeachments. Impeachments are also not costless to the country: The attention of the president and the Senate were consumed with an impeachment trial in February 2020, when they really should have been focused instead on the outbreak of a global pandemic that would turn the country upside down within a month.
As a practical matter, moreover, we already know that an impeachment of Biden will die in the Senate, where no Democrat has ever voted to convict a Democratic president. Thus, the use of impeachment makes sense only if the mere fact of impeaching Biden imposes political costs on him or his party that function as a form of accountability. But will it?
In electoral terms, the record is more than a little mixed. Republicans in 1998 and 2000, and Democrats in 2020, all underperformed in elections held after failed impeachments they’d instigated. Democrats impeached Trump again in 2021 and lost the House the following year, though it should be noted that before the election, they seemed likely to suffer even greater losses than they ended up suffering. It’s true that Trump lost reelection after his first impeachment and Democrats lost the White House after the Clinton impeachment, although Trump’s baggage hardly needed the addition of an impeachment, and Republicans in 2000 had history behind them in reclaiming the office after two terms of a Democratic presidency.
In more direct terms, Republicans may feel that impeachment is necessary in order to break the story through the wall of media denial of the Biden family’s foreign grift. But it could easily work in the opposite direction, because impeachment will raise expectations that Republicans may not be able to meet, and the inevitable Senate acquittal — or worse, a failed vote in the House — will be painted by the press as a complete vindication of Biden and proof that none of the allegations against him are true.
Investigatory Tools and the Trump Trap
The pressure to talk now about impeaching Biden is driven to a significant degree by the legal rules governing congressional investigations. Contrary to what one might think from watching Congress, the House’s power to issue subpoenas and question witnesses is not unlimited. Congress generally has three kinds of investigatory power. It can investigate the need for legislation (including reforms and repeals of existing bills); it can perform oversight of government operations it funds through the budget; and it can investigate whether federal officials should be impeached. There is, however, no real proposal on the table of legislation regulating any of the types of things allegedly done by the Bidens, and congressional oversight is limited because the main thrust of the investigation relates to Biden’s time as vice president — a job he no longer holds.
As much as any political pressure, this is why McCarthy feels the need to dial things up now: Republicans feel that they must put their investigation on stronger legal footing if they are to get the evidence they need.
There is, however, another factor that may push McCarthy to act in ways that are not in the best interests of his caucus or his party: Donald Trump. For every other Republican presidential candidate, the Biden family corruption story is an offensive asset, a basis with which to attack Biden and present a contrast. Impeachment might help that cause, or it might not, but the facts are the important part.
Trump, however, will see this not as an offensive weapon in political combat but a defensive one. Having been twice impeached and four times indicted, he needs to be able to tell voters that Biden has legal problems, too. His vulnerabilities create needs unique to him. But voters can see that, which is why Trump’s need for a Biden impeachment is likely to make McCarthy’s probe look more partisan, and less credible.