A possible House impeachment investigation of Joe Biden: What to know

As the House returns to session Sept. 12, there’s increasing talk of the Republican majority making moves toward impeaching President Joe Biden.

House Republicans have been investigating Biden’s son, Hunter, for months. Their primary focus involves money Hunter Biden received while serving on the board of Burisma, a Ukrainian energy company, while then-Vice President Joe Biden was helping shape Ukraine policy. So far, this has produced no evidence of wrongdoing by the president.

A House impeachment inquiry — the first formal step toward impeachment — would expand the House’s investigative focus more directly to alleged misdeeds by the president himself. Having a formal inquiry underway could increase investigators’ ability to demand documents from the White House.

Complicating matters, the impeachment discussion is coming as congressional leaders try to pass spending bills that could prevent a government shutdown at the end of September, when current funding runs out. It will also come as an end-of-September deadline set by prosecutors to indict Hunter Biden on a separate gun charge approaches.

This collision of developments is forcing the House speaker, Kevin McCarthy, R-Calif., to navigate between the right flank of his own caucus, which includes many lawmakers who want both deep spending cuts and a Biden impeachment investigation, and moderate House Republicans, whose opinions on those issues range from less enthusiastic to firmly opposed. McCarthy’s five-seat House majority hangs in the balance.

So how did we get here? What would an impeachment investigation involve? And where could it all end up?

Here are some answers.

In late August, McCarthy told Larry Kudlow of Fox Business News that if the Biden administration fails to turn over certain documents his conference is seeking, the House could launch a formal impeachment investigation.

"If they provide us the documents, there wouldn’t be a need for an impeachment inquiry," McCarthy told Kudlow. "But if they withhold the documents and fight like they have now to not provide to the American public what they deserve to know, we will move forward with impeachment inquiry when we come back into session."

Formalizing an impeachment effort would draw the investigation beyond the actions of his son and closer to the president. This could involve any way Joe Biden could have benefited from, or advanced, an alleged Ukrainian bribery scheme; bribery is specifically listed in the Constitution as grounds for impeachment.

Rep. Lauren Boebert, R-Colo., who in June filed an impeachment resolution, told the online news publication The Messenger that Biden should be impeached "for his role in the Biden crime family’s acceptance of tens of millions of dollars in bribes from foreign countries."

And Rep. Matt Gaetz, R-Fla., said Sept. 5 that he and his allies could force a vote on impeachment by threatening to oust McCarthy as speaker if he doesn’t allow one.

All that would be needed to oust McCarthy is for one Republican member to propose a "motion to vacate" the speakership. A vote would then be held on whether McCarthy would keep the speakership, and he might have trouble winning that vote.

Moving forward with an impeachment inquiry could be done with or without a vote.

McCarthy could proceed without a vote if he wanted. There’s even precedent from 2019, when the House, then under Democratic control, was pursuing the first impeachment of then-President Donald Trump. 

Trump’s effort to leverage Ukrainian President Volodymyr Zelenskyy to produce material that could damage Joe Biden politically — the incident that led to Trump’s first impeachment — became public in late August 2019. On Sept. 9, 2019, three House committees — Intelligence, Foreign Affairs, and Oversight — issued letters to the Trump administration demanding documents, said Frank O. Bowman III, a University of Missouri law professor and author of the forthcoming book, "High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump."

Then, on Sept. 24, 2019, then-House Speaker Nancy Pelosi, D-Calif., announced that there would be a formal impeachment investigation, charging six committees with running it. It wasn't until Oct. 31, 2019, that the full House voted for a formal impeachment investigation.

However, proceeding without a vote would represent a break from the impeachment processes for Richard Nixon and Bill Clinton, said Michael Gerhardt, a University of North Carolina law professor. 

In recent weeks, McCarthy has said he would launch an impeachment investigation only with a vote, which would need a simple majority to pass. Opening a formal investigation without a vote could be a tricky position for McCarthy, who criticized Democrats in 2019 for initially forgoing a vote.

"To open an impeachment inquiry is a serious matter," McCarthy told Breitbart News on Sept. 1, adding that "the American people deserve to be heard on this matter through their elected representatives."

A formal vote could also benefit the Republican investigation. "It's clear that the investigative power of the House is stronger in an impeachment inquiry," Bowman said. "So, if you're the House, it behooves you to get your investigation under that umbrella if you can."

McCarthy might find it difficult to win such a vote if he were to tee it up. 

With a narrow House majority, McCarthy can afford to lose only four members of his conference, assuming all Democrats vote against it. Yet there are 18 House Republicans who serve in districts Joe Biden won in 2020, compared with five Democrats who serve in districts Donald Trump won. Voting for an impeachment investigation would be politically dicey for any of those 18 Republicans.

One of those 18, moderate Nebraska Rep. Don Bacon told Time magazine that he’s hesitant about approving an impeachment inquiry because, based on initial evidence, he hasn’t seen "direct evidence of a crime that points to the president."

"We don't want an impeachment to be this thing we do with every presidency," Bacon said. "It shouldn't be revenge politics."

A vote to approve an impeachment inquiry, as McCarthy is contemplating, is a preliminary step and does not lead inevitably to a formal impeachment vote. 

Specific charges need not be presented before a vote to launch an inquiry; the inquiry is designed to collect evidence.

"The scope can change in the course of an investigation," said Stephen Griffin, a Tulane University law professor.

Formally impeaching the president would take place in a subsequent vote, after the investigation has been completed and after the committee responsible for the inquiry advances specific impeachment charges — such as obstruction of justice or bribery — to the full House.

"The scope of the inquiry could be very broad and even amorphous at the outset, but by the time a committee takes a vote on impeachment articles, it tends to be more focused," Gerhardt said.

McCarthy could appoint a newly chosen committee to conduct the inquiry, but historically, the Judiciary Committee has played a key role. That committee is headed by Rep. Jim Jordan, R-Ohio, one of Trump’s closest allies in the House and one of Biden’s most outspoken critics. 

Whichever entity handles the investigation, it’s unclear whether the impeachment investigation would start with closed-door meetings or public hearings. Ultimately, McCarthy would play the key role in deciding.

There are not many historical precedents, Gerhardt said, "so it is hard to generalize" how a formal investigation would play out. 

"Generally, when committees investigate, including for impeachment, they hold public hearings with fact and expert witnesses, though it is common to hold closed-door depositions or hearings when very sensitive material, particularly concerning national security, is the subject," Gerhardt said.

A closed-door phase would provide benefits to House Republicans, Griffin said, because it could provide a better idea of what witnesses have to say before calling them to testify at a public hearing.

A lot depends on what Republicans are trying to accomplish, Bowman said.

"If they are really trying to discover facts, starting with document requests and private depositions makes the most sense," Bowman said. "On the other hand, if they don't really expect to discover anything of real consequence, they may just want to make it all public so they can turn the hearings into festivals of screaming accusations from the dais."

It’s also unclear how long the investigative process could take. For now, Bowman said, it appears that "the House has nothing," suggesting to him that the point of the investigation would be "to create smoke. Therefore, the amount of time will be based purely on the desired political effect."

James Robenalt, a partner at the law firm Thompson Hine and specialist in Watergate legal history, said that if Republicans really intend to impeach Biden, one hurdle will be finding something Biden has done during his presidency.

The idea of impeachment among the framers of the Constitution "was to punish officials for abuse of office, not for conduct in the past," Robenalt said. "They can’t impeach him as vice president now that he is no longer in that office."

Overcoming that obstacle would require finding ongoing financial corruption by Joe Biden during his presidency, or perhaps some improper interference in Hunter Biden’s criminal investigation over tax and gun charges. IRS whistleblowers have alleged that U.S. Attorney for the District of Delaware David Weiss, who has been prosecuting Hunter Biden, was blocked from pursuing some investigative leads and prosecutorial tactics.

The White House has cast the impeachment effort as a way for Republicans to try to create false equivalence with Trump’s four simultaneous indictments. Trump is the frontrunner for the 2024 Republican nomination and is on track to be Biden’s opponent for a second term.

It’s "nothing more than an evidence-free political stunt to baselessly attack the President, not a legitimate inquiry to pursue the truth," Ian Sams, White House spokesperson for oversight and investigations, said in a statement to PolitiFact.

The White House, and moderate House Republicans, aren’t the only sources of skepticism. A number of Republicans in the Senate, which would try Biden if he’s impeached, have expressed concern about a House impeachment effort. 

"I don't see the glaring evidence that says we need to move forward," said Sen. Shelley Moore Capito, R-W.Va., Axios reported. "I didn't see it in the Trump case, and voted against it, I don't see it in this case."

And Senate Minority Leader Mitch McConnell, R-Ky., told The New York Times, "This is not good for the country."

Even if all Senate Republicans were to vote to convict an impeached Biden, the GOP would need to flip 15 Democrats and all three Democratic-caucusing independents, an almost insurmountable hurdle.

Robenalt said that given what is known now, an impeachment "will be seen as purely political" and "will galvanize Democrats and Independents." 

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