House impeachment proceedings against President Joe Biden have reached a boil with new subpoenas against his brother James, his son Hunter, and one of Hunter’s business associates. As a scholar and practitioner of impeachment, I believe these subpoenas and the underlying proceedings they reflect are flawed, both legally and factually. If tested in court, the subpoenas will likely be struck down and the impeachment itself is doomed when it reaches the Senate — if it even makes it that far.
The most basic problem with the subpoenas is that you need to have a House vote formally authorizing an impeachment inquiry to issue impeachment-related subpoenas. In the first impeachment of Donald Trump, where I served as special counsel to House Democrats, we went to great lengths to secure such authorization for just that reason. Such a House vote has not happened here, meaning that enforcement of these subpoenas may prove problematic, to say the least.
Indeed, the whole impeachment process is unsound. That is because it does not meet the constitutional standard of “Treason, Bribery, or other high Crimes and Misdemeanors.” That standard is so strict that when I was representing House Democrats, they initially chose not to impeach the former president, notwithstanding powerful evidence developed by then-special counsel Robert Mueller that Trump had committed 10 possible acts of obstruction of justice. Any other American besides a sitting president would have been indicted on multiple counts for this conduct. Yet despite that, and their political adversity to then-President Trump, House Democrats did not feel the case was strong enough. It was only when a whistleblower emerged with proof positive that Trump had attempted to bribe the president of Ukraine to attack as leading political opponent with hundreds of millions of dollars in U.S. aid that we finally proceeded.
Compare that with the evidence that Rep. James Comer, R-Ky., chair of the House Oversight Committee, and House Judiciary Committee Chairman Jim Jordan, R-Ohio, have been pushing to support impeachment in recent weeks. The latest supposed smoking gun involves two payments James Biden made to his brother, Joe Biden. Republicans and their allies are pointing to this as evidence of a crime that rises to the level of warranting impeachment. The problem? The payments prove no such thing. The investigators surely know it—and yet they seem determined to use the payments to advance their vendetta against President Biden anyway.
At first, they claimed that the payments Biden received from his brother were evidence of bribery from China. However, when the Oversight Committee released images of two checks, showing that they were loan repayments made during a time when President Biden was neither in office nor running for one, the investigators scrambled. They then quickly pivoted, suggesting instead that they had no evidence of the initial loans made to James Biden by the president.
However, that was debunked almost as quickly as the first theory. It has been widely reported, and Ranking Member Jamie Raskin disclosed, that the House Oversight Committee Republicans are actually in possession of financial records showing the initial loans.
So after spending weeks on sympathetic media echoing false claims, House Republicans leading these investigations have been forced to pivot once more. Now, they are claiming that there’s no way President Biden could have afforded the loan payments in the first place.
That makes no sense either. At that time, Biden was out of office and earning significant income from a book deal and speaking engagements. We know so much about how Biden earned his money because, unlike Donald Trump and Comer, the president has released a quarter century of his tax returns, providing unprecedented transparency into his finances. If Comer and Jordan want to know how President Biden made his money, all they need to do is look there.
Thus this impeachment inquiry is a farce. It is the very weaponization of government that Comer, Jordan, and their ilk decry at any opportunity. Their desperation to smear President Biden based on this record only allows one conclusion: that this is a political adventure designed to benefit their favorite candidate, former President Trump. And that, of course, falls far short of the legal standard for impeachment.
The Ukraine-related impeachment was backed by compelling evidence including that elaborately-documented whistleblower statement. Trump’s conduct amounted not only to powerful evidence of high crimes and misdemeanors but also possible ordinary crimes of bribery as we detailed in our impeachment report.
The second Trump impeachment presented, if anything, an even more compelling case. It is focused on Trump’s behavior leading up to and on January 6. His actions then actions constituted a quintessential abuse of power while in office as well as apparent actual crimes. Indeed, Trump is now being criminally prosecuted for them.
Notably, despite the compelling nature of the facts and the law in both of these cases, when the articles of impeachment were sent to the GOP-led Senate, even they failed to garner the requisite majority. The unfounded Biden impeachment will be doomed there from the start.
When, as here, legislative oversight fails to unearth wrongdoing, and a contemplated impeachment is baseless, the right thing to do is to pull the plug. That is exactly what Jordan and Comer’s GOP peers in the Wisconsin legislature did with their threatened impeachment of Wisconsin Supreme Court Justice Janet Protasiewicz. The Speaker of the Wisconsin Assembly, Robin Vos, was reportedly determined to impeach the newly-elected Protasiewicz because she had spoken out against unfair gerrymandering during her just-concluded campaign for the high court and was declining to recuse from a redistricting case before that panel.
But then an uproar ensued as it became clear that the campaign remarks were protected by the First Amendment and the applicable judicial ethics rules, as well as unrelated to the specific issues in the redistricting case before the judge. The result: the notoriously stubborn Vos reversed course (at least for now). Constitutional experts had explained that there was no basis for impeachment and to the pleasant surprise of many in the state, Vos listened and backed down.
That is what the Biden impeachers should do here, starting with withdrawing these flawed subpoenas. There’s no evidentiary or legal basis to impeach President Biden or to issue harassing legal papers targeting his family or their associates. Proceeding on this record would make a mockery of the Congressional and constitutional oversight process. Jordan, Comer, and their ilk should not proceed, but if they do they should be exposed to the derision they deserve.
