The impeachment inquiry against Joe Biden: What does it involve and what are the next steps

Only three presidents have been impeached in US history. Republicans want Joe Biden to be the fourth

The Speaker of the House of Representatives, Kevin McCarthy, in his appearance at the Capitol to announce the investigation against Joe Biden for a possible impeachment trial.
The Speaker of the House of Representatives, Kevin McCarthy, in his appearance at the Capitol to announce the investigation against Joe Biden for a possible impeachment trial.Jacquelyn Martin (AP)
Miguel Jiménez

On September 27, House Speaker Kevin McCarthy ordered a formal impeachment inquiry into President Joe Biden. The House of Representatives has only ever impeached three U.S. presidents in history. All three were acquitted by the Senate. Republicans, at least those in the party’s hard-right faction, want Biden to be the fourth. But it remains to be seen whether that will happen. Other impeachment inquiries have not led to an impeachment.

Republicans have wanted to impeach Biden since the first day of his term. The day after he took office, on January 21, 2021, Representative Marjorie Taylor Greene filed articles of impeachment against Biden, but the move failed as the House of Representatives was controlled by the Democrats.

In January this year, following the midterm elections, which handed back control of the House to the GOP, and the tortuous election of McCarthy as House Speaker, Republicans were back at it again. Lawmaker Lauren Boebert used a procedural shortcut, known as a privileged resolution, to introduce articles of impeachment against Biden for his alleged “unconstitutional dereliction of duty at the southern border.” But the measure caused a rift within the party, and the Republicans abandoned the idea.

Now, the investigation ordered by McCarthy is linked to the business dealings of the president’s son, Hunter Biden, which he argues reflect an alleged “culture of corruption” and “abuse of power.” Hunter Biden was an advisor to Burisma, a Ukrainian natural gas company whose owner was involved in corruption cases.

What is Biden accused of?

When McCarthy announced the opening of the inquiry on September 27, he mentioned allegations that are far from being proven or that have only been presented partially. The Republican argued: “Through our investigations, we have found that President Biden did lie to the American people about his own knowledge of his family’s foreign business dealings.” In the 2020 presidential campaign, Biden claimed that his son had not done business in China, which turned out not to be true, but Republicans have failed to prove that Biden was aware of Hunter’s business dealings or that as president he lied about them. McCarthy also claimed that Biden’s interactions with his son’s associates and clients “resulted in cars and millions of dollars,” but it has not been proven that these meetings went beyond greetings and a dinner. Nor has it been proven that the then-vice president was involved in any of his son’s business affairs.

McCarthy said that members of the Biden family (his son, Hunter, and the president’s brother, Jimmy Biden) and their associates received $20 million through “shell companies” and that 150 banking transactions were classified as suspicious. In reality, they were not shell companies, but limited liability companies, and the money did not belong just to the Biden family. What’s more, there is no proof that the business dealings were illegal, even if they were somewhat shady. Banks preliminarily flag high-value cash operations and international transfers as suspicious if their justification is not clear. For the time being, however, none have led to a criminal investigation.

McCarthy also spoke of an alleged bribe to the Bidens that was reported to the FBI. But this was an unverified tip and has been denied by other testimonies. There is also no evidence that, as the Republican maintains, the Biden family has received favorable treatment from the government. The prosecutor investigating Hunter Biden is a Trump appointee and the Justice Department has elevated him to the rank of special counsel, which strengthens his independence.

What is an impeachment?

Articles 1 and 2 of the U.S. Constitution regulate the impeachment of public officials. In the case of federal public officials, it is the House of Representatives that presents the articles of impeachment, while the trial takes place in the Senate. Article 2, Section 4 states: “The president, the vice president, and all civil officers of the United States shall be removed from office upon impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.”

There are also state impeachment trials, such as the one that took place in Texas against its attorney general, Ken Paxton (he was later acquitted).

What is an impeachment inquiry?

McCarthy has ordered an impeachment inquiry to be opened against Joe Biden, alleging that there is “culture of corruption” around the Biden family, namely Hunter Biden’s overseas business affairs. The House Speaker ordered the chairmen of three House committees to launch the formal investigation, which will bring with it subpoenas and summonses. It is a pre-impeachment investigation, to try to elucidate whether there is enough material to go forward with the proceeding. A formal investigation of this type is not required before an impeachment, but it is common practice.

Can the investigation be opened without a vote?

As House Speaker, McCarthy has the power to open an inquiry, but until very recently he stated that he would not do so without the vote of the full House of Representatives. When his predecessor, Nancy Pelosi, ordered the first impeachment inquiry into former president Donald Trump in September 2019, McCarthy wrote a letter to the then-speaker, saying that her decision to open an inquiry without a floor vote made it “completely devoid of any merit or legitimacy.” Up until less than two weeks ago, he had maintained the same position, telling Breitbart News that if the House moved forward on an impeachment probe, “it would occur through a vote on the floor of the People’s House and not through a declaration by one person.”

What are the next steps?

The chairmen of three committees — Oversight, Judiciary, and Ways and Means — are in charge of launching the formal investigation. The three, who are all Republican, can issue summonses, requests and carry out other types of actions. Some lawmakers have indicated that they will carry out an in-depth investigation, since they have “until the 2024 elections.” The Republicans want to politically torture Biden and believe that an inquiry of this type can help counterbalance the legal woes facing Donald Trump ahead of the November 5 presidential elections next year, in which the entire House of Representatives and a third of the Senate are also up for grabs. After the inquiry is completed, the usual next step is for a commission to specify the articles of impeachment — the criminal equivalent of the charges or accusations — and to submit them to a House vote. If they are formulated and approved by the House, it would be the Senate that would carry out the impeachment trial.

Does this mean Biden will be impeached?

No. There are precedents for opening formal investigations after which no charges were filed. In 1860, president James Buchanan was investigated for alleged bribery and other accusations, but after working for a year the special commission in charge of the case concluded that there was no incriminating material. In 1867, the Judiciary Committee recommended the impeachment of Andrew Johnson, but the House voted against it (although Johnson would be impeached the following year in another case). There is a third example from 1974. In this case, the Judiciary Committee had approved three articles of impeachment against Richard Nixon for obstruction of justice, abuse of power and contempt of Congress for his role in the Watergate scandal. But Nixon resigned before the House could vote.

What is the role of the House of Representatives and the Senate?

Under Article 1 of the Constitution, the House of Representatives “shall have the sole power of impeachment.” Once an impeachment inquiry is complete, the House has traditionally tasked the Judiciary Committee — the panel authorized to introduce articles of impeachment — to hold hearings and draft impeachment charges. If those articles are voted out of committee by a simple majority, it would come to the House floor where a majority vote would be required to impeach Biden.

In that case, Biden would become the fourth U.S. president to be impeached, joining Andrew Johnson, Bill Clinton and Donald Trump. The impeachment trial would then begin in the Senate. Chief Justice John Roberts would preside over the trial, lawmakers appointed by the House of Representatives would act as prosecutors, while senators would serve as jurors. According to the Constitution, “no person shall be convicted without the Concurrence of two-thirds of the members [of the Senate] present.” In other words, 67 votes would be needed if all 100 senators were present. Democrats have a majority of 51 to 49 in the Senate.

What sentence can be imposed?

Article 1, Section 3 of the Constitution states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to Law.” An impeachment does not exempt a president from a criminal trial. In the hypothetical case that a president is removed, they are replaced by the vice president.

Which presidents have been impeached?

Only three presidents throughout history (Andrew Johnson, in 1868; Bill Clinton, in 1998, and Donald Trump, in 2019 and 2021) have been impeached by the Senate at the request of the House of Representatives. All three were acquitted.

Who will testify as witnesses?

The three Republican witnesses are Bruce Dubinsky, a forensic accountant; Eileen O’Connor, a former Assistant Attorney General, United States Department of Justice Tax Division; and Jonathan Turley, a professor of law at George Washington University and a Fox News contributor.

Democrats called Michael Gerhardt, a constitutional law professor at the University of North Carolina, to testify. Gerhardt served as special counsel to the presiding officer of former President Donald Trump’s second impeachment trial.

The Johnson case

The impeachment trial of Andrew Johnson originated in a struggle between Democrats and Republicans at a time of growing tension after the end of the American Civil War. Congress — controlled by a radical wing of the Republican Party — approved a law that prevented the Democratic president from dismissing, without the support of the Senate, public officials appointed by the upper house. Ignoring this law, Johnson dismissed his secretary of war, an ally of the Republicans, which led to the impeachment. In two votes in May 1868, the Senate fell just one vote short of those needed to remove the president.

The Clinton case

The impeachment trial against Bill Clinton accused him of perjury and obstruction of justice for concealing his 1997 affair with White House intern Monica Lewinsky. At dispute was whether Clinton lied under oath when he denied having had a sexual relationship with Lewinsky (with whom he had oral sex) and whether he hindered investigations by encouraging her to deny the relationship. On the charge of perjury, 45 senators considered him guilty and 55, not guilty. On the charge of obstruction, there was a 50-50 tie. He was acquitted.

The Trump cases

Trump’s first impeachment trial is related to the current inqury against Biden. It was born from Trump’s attempts to seek Ukraine’s help to smear Biden, who was then the favorite to win the 2020 Democratic presidential nomination. Trump wanted to hurt Biden’s chances by using his son’s business dealings against him. In December 2019, the House of Representatives accused him of abuse of power for pressuring Ukraine to investigate his political rival and of obstruction of Congress for ordering officials to refuse to testify. He was acquitted of both charges by a 48-52 and 47-53 vote, respectively.

The second impeachment of Trump was unusual in that it was against a president who was no longer in office. Trump was charged for his role in the January 6, 2021 storming of the Capitol with incitement of insurrection. Of the 100 senators in the upper house, 57 — including seven from his own party, an unprecedented occurrence — found him guilty. But this was short of the two-thirds majority needed for a conviction.

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