Norman Eisen
House Speaker Kevin McCarthy’s announcement Tuesday of an impeachment inquiry into President Joe Biden’s purported involvement in his son Hunter’s business dealings is factually unfounded and legally baseless. That should be no surprise considering that a consistent proponent of this inquiry was former President Donald Trump. The twice-impeached ex-president demanded earlier this summer on Truth Social that Republicans in Congress impeach Biden, writing that “These lowlifes Impeached me TWICE (I WON!), and Indicted me FOUR TIMES – For NOTHING! Either IMPEACH the BUM, or fade into OBLIVION. THEY DID IT TO US!” Trump clearly seems to view impeaching Biden as payback for both his prior impeachments and his current criminal prosecutions.
In a sense, Trump is right – revenge is all it is because there is no constitutional basis for proceeding here. I make that judgment based on my work as a scholar of impeachment and also as a practitioner who helped lead the first Trump impeachment and trial as counsel to the House Judiciary Committee. According to the Constitution, impeachments must be based on “high Crimes and Misdemeanors.” But the evidence here does not even amount to allegations of ordinary crimes, much less high ones.
Other Republicans have signaled that they believe the same, with several Senate Republicans questioning the strength of the purported evidence offered by their House counterparts. McCarthy himself has dragged his feet on the issue. The more extreme members of his caucus have been pushing for impeachment for months while he had, before this week, declined to commit. Now that some of them are openly threatening McCarthy’s speakership, it appears he caved. Moreover, he recently said that he would not proceed without a formal vote on the inquiry, but there was no mention of that at all in his announcement of the inquiry Tuesday. Without such a vote, impeachment lacks the force of law. McCarthy bitterly – and now hypocritically – criticized former Speaker Nancy Pelosi for announcing the first Trump impeachment before a vote (she later scheduled one).
It is true that the younger Biden seems to have attempted to leverage his father’s stature, based on the transcript from the closed-door testimony of Hunter’s former business partner Devon Archer, whom Republicans called to appear on July 31 before the House Oversight Committee. Archer claimed that Hunter would, for example, put his father on speakerphone with potential clients to woo them (plus there have been a couple of similarly non-substantive in-person events). But according to a source familiar with Archer’s appearance who spoke to CNN, Hunter’s former business associate did not provide any evidence connecting Biden senior financially to any of his son’s foreign business dealings. Making passing small talk in meetings – which is all Joe Biden’s participation seems to have amounted to, according to Archer’s testimony – does not come close to a high crime or misdemeanor. The White House has denied that President Biden had any involvement with his son’s business deals on multiple occasions, responding that the House Republicans’ “own witnesses appear to be debunking their allegations.” A lawyer for Hunter Biden similarly denied the allegations on his client’s behalf.
Moreover, years of searching have yet to yield any support at all for the allegation that Biden personally profited off his son’s foreign business dealings. For example, when I was working on the first Trump impeachment for the House Judiciary Committee, we looked in depth at the issue with respect to Hunter’s business dealings in Ukraine. We focused specifically on Trump’s accusations that, in calling for the removal of a special prosecutor there, Biden had leveraged his role as vice president to benefit a Ukrainian energy company on whose board his son sat. But there was no there there. We concluded that Biden had “acted in accordance with and in furtherance of an official United States policy.” The history of impeachment also offers no basis for proceeding in this regard. That includes examples like the inquiry into President Richard Nixon and the second Trump impeachment. Nixon was an unindicted co-conspirator in his case over serious criminal allegations of conspiracy and obstruction of justice, among others.
In contrast, the evidence unearthed by the congressional investigations so far suggests no such wrongdoing on the part of Joe Biden. If the Republicans had more evidence, we would likely know about it. So far, all signs are that they have a comparative nothingburger. As if to confirm the rightness of Trump’s second impeachment, the former president Trump was later charged with a litany of offenses, including conspiracy to defraud the United States through post-election misconduct along with other federal and state crimes. (Trump has maintained he did nothing wrong.) If all that were not enough, there’s another legal infirmity in an impeachment charge. The elder Biden’s involvement with his son’s business occurred when he was vice president, not president.
An impeachment proceeding based on this conduct would be the first in our nation’s history not premised on conduct occurring during the subject’s presidency. These are untested legal waters, and it’s far from clear that the framers of the constitution intended for impeachment to cover activity from before a presidency begins and that is unrelated to winning it. The proposed Biden impeachment is a revenge mission and nothing more. Like many things born in retaliation, it is fatally flawed. It should not proceed.
CNN
