The signals coming from House Speaker Kevin McCarthy are that his Republican majority will soon launch a formal impeachment investigation. The final decision hasn’t been announced — and an investigation is still a far cry from a full House vote. But setting up an impeachment committee is an essential first step. Most of his caucus wants to take it.
Most, but not all. The reservations of some Republicans and the calculations behind them are why McCarthy has moved slowly. The speaker’s problem is more than rounding up votes. The other problem is the investigation carries real risks as well as benefits.
The biggest benefit is a technical, legal one. It gives House investigators the power to compel testimony and documents from all Executive Branch agencies, even the most reluctant, as well as private parties. According to the Office of Legal Counsel, the Department of Justice’s in-house legal advisor, “The House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation” in order to compel testimony and document production. With that committee, they can go to court directly to demand compliance.
The president may be entitled to some protection for official communications, but, in 2020, the Supreme Court overwhelmingly rejected President Trump’s expansive claim that he and his aides had absolute immunity from congressional subpoenas. “Executive privilege” didn’t extend nearly that far. Instead, the High Court set standards to guide lower courts on what Congress could rightfully demand, including demands on the president himself.
The court’s standards are a multi-part test:
- Subpoenas must be ‘detailed and substantial’;
- They must have legislative purpose, which includes impeachment;
- The materials must not be available to Congress another way; and
- Compliance must not ‘unduly burden’ the president as he fulfills his other duties
The SCOTUS decision was “new law” since, for over two centuries, the president and Congress managed to resolve these disputes without the courts’ intervention. When that cooperation broke down, the court was forced to decide between the other two branches.
The High Court’s decision gives impeachment investigators a strong platform to demand documents and testimony. The very gravity of impeachment makes it more likely the courts will settle disputes in favor of Congress, require full compliance, and set a high bar to excuse the president from producing documents because of “undue burdens.”
The court’s decision also gives Speaker McCarthy a powerful lever to uncover new evidence and a strong reason to move forward. Current probes, led by House Oversight Committee chairman James Comer and Judiciary chairman Jim Jordan, have already yielded significant information, but hardly enough to warrant impeaching or removing the president.
Current investigations might have fallen short for two reasons, and we don’t know which is decisive. There might not be sufficient evidence (the Democrats’ answer) or the evidence might have been suppressed by the White House, DoJ and other executive agencies (the Republicans’ response).
An impeachment hearing would remove most of the obstacles. That, plus the damaging findings already uncovered, are why Chairman Comer is signaling the move is “imminent.”
It’s worth remembering that there would have been no investigation of Joe Biden and his family if Democrats had won the House in 2022. We know that because they control the Senate and have killed any serious investigations there. Top Senate Republicans on the case, Ron Johnson and Chuck Grassley, have made some important discoveries, but they have been severely limited by their minority status. They cannot subpoena witnesses or documents or hold hearings.
In the House, however, they can. Republicans hold a slim majority there — and that’s enough, if they stick together. Their committee chairmen, Comer, Jordan and Jason Smith (of Ways and Means), can subpoena witnesses and documents, take testimony under oath and hold public hearings, just as Democratic chairmen Adam Schiff and Jerry Nadler did during the Trump investigations.
A formal impeachment investigation would add to their leverage and give them a powerful tool to probe wrongdoing by the president (primarily when he was vice president) and any subsequent cover up by the Department of Justice, Treasury, IRS, FBI, National Archives and other Executive Branch agencies.
Those targets are red meat for hardline conservatives, who want to show that the Biden family made all its money from the vice president’s official position, that he not only knew about the grift but repeatedly aided it — and that his administration has covered up that wrongdoing. Republicans want to link the Biden family’s lucrative enterprise to Joe himself and sink his presidency, or at least weaken it before the 2024 election.
Despite these political advantages, there are good reasons why Speaker McCarthy has been cautious. First, he knows a high-profile investigation could alienate independent voters if it doesn’t turn up compelling evidence.
Those swing votes determine the winner of every general election — and they will be none too happy if the inquiry doesn’t produce that evidence. It will look less like a serious investigation and more like a partisan witch hunt or revenge for Trump’s impeachment.
Poll after poll shows independents are sick of this tit-for-tat fighting. They have a long list of serious problems that need solutions. They either want the government to help them or get out of the way.
Failing to focus on those problems poses a second major risk for Republicans. Their party will be punished if an impeachment probe seems to distract them from working on issues that deeply concern voters. The list of kitchen-table issues is long: stagnant real wages, high interest rates, street crime, organized looting, homeless encampments, surging illegal immigration, high gas prices, their children’s education, the return of Covid and more.
Finally, voters know an impeachment inquiry is only the beginning. It is likely to lead to a full House vote and, if successful, a Senate trial. Since Democrats hold a Senate majority, that trial will end in acquittal unless House Republicans can produce a stack of irrefutable evidence. While even the most compelling evidence might not convince Senate Democrats, it might convince nonpartisan voters that President Biden committed “high crimes and misdemeanors.” Without that evidence, however, the entire effort will seem like a costly distraction, motivated by Republican revenge.
If that’s what independent voters think, Republicans will pay the high price up and down the ballot, mainly in “purple” states and congressional districts. Die-hard Republicans may be eager for vengeance but centrist independents are not, just as they were not when Democrats tried repeatedly to remove Trump from office with weak evidence. (The counterargument is that those investigations damaged Trump enough to cost him the 2020 election.)
The risk of losing independents and congressional seats in swing districts is why Speaker McCarthy and his top allies have been so careful about launching an impeachment inquiry. Gradually, though, they have been inching toward a decision as the evidence cumulates.
The momentum now appears too strong to stop. The House Oversight Committee has uncovered too much — and keeps uncovering more. The Justice Department has obstructed too much — and shows no signs of bending. US Attorney (and now Special Counsel) David Weiss has been too lenient in filing criminal charges. He offered Hunter Biden a sweetheart deal, tried to hide the key terms from a federal judge, reluctantly informed her those terms were unprecedented, let the statute of limitations expire on major tax charges and ignored Hunter’s failure to register as a foreign agent despite receiving millions of dollars. The Treasury Department has sat on hundreds of “suspicious activity” reports, generated by US banks as foreign money flowed into Biden family LLCs. The DoJ removed the entire team of IRS forensic investigators, which had spent years unraveling the trail of Biden family come and Hunter’s failure to pay taxes on his share. The DoJ won’t explain who ordered the team fired or why. When members of the team went to Congress as whistleblowers — a protected class — their IRS bosses tried to stop them. The latest roadblocks are the FBI’s flat refusal to provide testimony from agents involved in the Biden investigation and the National Archives refusal, so far, to turn over Vice President Joe Biden’s secret emails using a pseudonym. Biden himself could give permission but won’t. The reasonable suspicion is that he has something to hide.
At every turn, the Biden administration greets House investigators with a stone wall. The only way breach it, those investigators say, is to add the firepower of an impeachment inquiry. That committee can go directly to federal court for enforcement if the administration refuses to turn over documents or make witnesses available. They don’t have to go through the impenetrable barrier of Attorney General Merrick Garland and his department.
If Republicans do launch a formal impeachment inquiry, as expected, how will we know if they made the right decision? The answer hinges on three things:
- Can they find compelling evidence against Joe Biden himself or proof his administration covered up crimes?
- Is that evidence strong enough to persuade independent voters? And
- In pursuing this investigation, have Republicans lost sight of other crucial issues?
Democrats will respond forcefully on all three points. The White House has already created an “impeachment war room,” which will work closely with allies on Capitol Hill. They won’t concede an inch or turn over documents readily. They will say the evidence is weak; that it does not point directly to Joe; and that Republicans are busy conducting show trials while Democrats are busy improving citizens’ lives.
Republicans must win that debate if they are to win in 2024. If independent voters aren’t convinced, they will send a harsh message to the politicians who led them on a pointless snipe hunt. If they are convinced, however, they won’t have to rely on a Senate trial. They will render their verdict at the ballot box.
