What Happened to the Biden Impeachment?

If an impeachment report falls in the forest and no one hears it, did it make a sound? 

House Republicans might well be asking themselves this question. On Aug. 19, the House Oversight, Judiciary, and Ways and Means Committees released the final report of their impeachment inquiry into President Joe Biden—accusing him, albeit on unclear grounds, of “abus[ing] his office and … defraud[ing] the United States.” Yet more than a month later, the report has essentially vanished from the political scene. The chamber has made no motion toward actually setting a vote to impeach the president. When the House returned from recess on Sept. 9, Speaker of the House Mike Johnson—hands full with trying to keep the government open—didn’t seem to have impeachment on his to-do list. 

Even the biggest GOP proponents of holding a vote have largely cooled on the issue. On the Democratic side of the aisle, meanwhile, some members were eager for Republicans to devote attention to the issue, believing that doing so would remind voters of the GOP’s extremism, but their energy appears to have faded as well. All in all, Republicans seem somewhat uncertain about precisely what the report has accomplished—especially given Biden’s decreased relevance to the 2024 presidential race after he stepped aside in favor of Vice President Kamala Harris. 

Given this anticlimax, it would be easy to write off the report as yet another quixotic mission by an increasingly radical flank of the House Republican conference. But this story is worth a closer look for what it says about the uses and limitations of impeachment as a political tool and how these dynamics play out—and might play out in the future—within the House as an institution. Does this (along with the nearly party-line impeachment of Homeland Security Secretary Alejandro Mayorkas in February) represent the dawn of a new era of retaliatory impeachments, a tit-for-tat for the two Democratic-led impeachments of Donald Trump? Or is it instead a demonstration that politicized impeachments are harder than expected to get off the ground? Even if the Biden report vanishes without much of a political trace, it could still have legal and institutional effects on future impeachments and investigations.

Substantively, it’s not really clear what to take away from the report, which accuses Biden of “impeachable conduct” but includes precious few specifics about what the president is personally alleged to have done. The document focuses chiefly on less-than-savory business deals by Biden’s son Hunter and brother James, but with little evidence that the president personally knew of or benefited from these entanglements. Republican investigators also return to a flimsy allegation circulated by Trump himself in the summer of 2019, which itself helped precipitate the first Trump impeachment when the then-president pressured Ukrainian President Volodymyr Zelenskyy to back up the claim. Trump insisted baselessly that Biden—as vice president—leaned on the Ukrainian government to drop an investigation into the gas company Burisma, on whose board Hunter Biden sat. In addition to this dubious story, the report also contains a lengthy section objecting to what it characterizes as the Biden administration’s “hostility towards and unwillingness to cooperate with the House’s impeachment inquiry and Congress’s legislative oversight.” 

To understand the dynamics animating the report, it’s helpful to keep in mind the cultural norm in Congress of appealing to precedent as the basis for establishing the credibility and value of a given approach—an appeal that, in this case, seems designed to justify retaliatory accusations in the absence of firm evidence. When the House’s Select Committee on the Chinese Communist Party held its first hearing in 2023, it did so in prime time—just as the Select Committee to Investigate the January 6th Attack on the U.S. Capitol had done. Proponents of creating a special subcommittee of the Judiciary Committee on the “weaponization of the federal government” similarly appealed to the Jan. 6 panel, advocating for “the kind of budget and kind of staff—we said at least as much as the Jan. 6 Committee.” 

This reliance on institutional precedent helps explain several features of the Biden impeachment report—beginning with its length. It clocks in at 291 pages, roughly the length of the House Intelligence Committee’s 2019 report preceding the first Trump impeachment. That report, though, had a great deal more in the way of substance, documenting the twists and turns of Trump’s effort to extort Ukraine. The House GOP report, in contrast, pads out its word count by relying heavily on ominous insinuation without much to back it up, often omitting or downplaying exculpatory material. In one instance, for example, the report makes a great deal out of two large checks written to Joe Biden by James Biden and his wife, Sara, which GOP investigators suggest were a means of transmitting shady money to Joe Biden. Yet the report doesn’t address the dispositive indications that the checks were repayments on a loan from Joe Biden to his brother. In another instance, the report darkly describes Biden’s supposedly corrupt involvement in the March 2016 firing of Ukrainian Prosecutor General Viktor Shokin, without noting the extensive evidence—presented by Democrats over the course of the first Trump impeachment—that Biden’s efforts were in line with the policies of the Obama administration and of Ukraine’s European partners.

The substantive echoes of the first Trump impeachment are themselves telling. Again and again throughout the 291 pages, the report draws both implicit and explicit comparisons with both Trump impeachments and with the various prosecutions of Trump to justify Republicans’ strategy in attacking Biden. Some of these connections involve the facts alleged against Biden, with an edge of “I know you are but what am I”: If the Democratic Party has made an allegation against Trump, the House GOP report suggests, so too can that same allegation be turned against Biden. 

Consider, for example, the core allegation at the heart of both the investigation into Russian election interference in 2016 and the first impeachment: that Trump was allowing himself to be influenced by, and improperly exerting influence over, foreign governments. The Biden impeachment report flips this around to accuse the president’s family of “influence peddling” that “involved entities and individuals from some of America’s greatest adversaries, such as China and Russia.” (At one point, the report charges the Biden family with selling “political influence” abroad, stating that “[t]he Bidens did not have a golf course, real property, a clothing line, or media business”—all businesses that Trump and his family have explored at one time or another.) Among the articles of impeachment against Trump during the Ukraine scandal was the allegation that Trump obstructed Congress by refusing to comply with House subpoenas; here, the report accuses the Biden administration of “obstruct[ing] the Committees’ impeachment inquiry by withholding key documents and witnesses.” The Mueller report, the findings of the first impeachment, and the House Jan. 6 committee all focused on Trump’s penchant for using government power, particularly the Justice Department, as a weapon against his enemies; likewise, House Republicans claim with little evidence that Biden somehow interfered with the Justice Department’s handling of the criminal investigation and prosecution of Hunter Biden on tax and gun charges.

The report even contains an implicit rebuttal to Trump’s prosecution in Florida over classified information held at Mar-a-Lago. Somewhat awkwardly, the document shoehorns in a section on Special Counsel Robert Hur’s investigation of Biden’s own mishandling of classified information —although that probe, which concluded without criminal charges, was entirely independent of the House committees’ work. The main relevance of this portion of the report seems to be that it provided the House with a basis on which to send a number of informational requests and subpoenas to the executive branch, which the administration refused to comply with—thus allowing House Republicans to trumpet that Biden had obstructed their investigation. Chief among these examples of noncompliance is the Justice Department’s refusal to respond to a February subpoena demanding, among other things, audio recordings related to the Hur investigation. In July 2024, the month before the report was released, the Judiciary Committee sued Attorney General Merrick Garland to enforce the subpoena, relying, in part, on the existence of the impeachment inquiry in arguing for why the court should force Garland to comply. For those who closely watched the oversight battles of the Trump era, there’s an echo here of the House’s series of lawsuits seeking the testimony of Trump’s onetime White House Counsel Don McGahn, which left the state of law on congressional subpoena enforcement unsettled.

While these comparisons to past Trump scandals are largely left implicit, occasionally the report spells things out directly. It’s studded with references to Trump’s previous impeachments, which it points to in justifying its own expansive view of Biden’s apparently impeachable conduct—although it promises that, “[d]espite the cheapening of the impeachment power by Democrats in recent years, the House’s decision to pursue articles of impeachment must not be made lightly.” Among other things, the committees point to the two Trump impeachments to argue that an impeachable offense need not rise to the level of criminality and that “the House may properly conclude that a President’s obstruction of Congress is relevant to assessing the evidentiary record in an impeachment inquiry,” allowing the chamber to draw a negative inference from the White House’s refusal to provide information. 

The tit-for-tat nature of the House GOP report’s relationship with the Trump impeachments raises the question of whether American politics has begun a process of downgrading impeachment from a serious response to presidential wrongdoing to yet another mechanism for litigating partisan spats. The apparent willingness of House Republicans to drop the impeachment matter entirely when pursuing it no longer paid major political dividends certainly suggests such a downgrade. Presciently, during the 2019 impeachment process, Mike Johnson himself—not yet in a major leadership role in the Republican conference—warned that Democrats were opening a “Pandora’s box” and that a future Republican House would likely demand that any Democratic president be impeached.

Writing in Lawfare in 2022, Brian Kalt described an “age of futile impeachments,” in which the House barrels forward with impeachments regardless of the odds for a Senate conviction. Kalt argued that while impeachment is still important when conviction is achievable, in situations where it’s not—which will be many, given our heightened partisan moment—censure is the more appropriate approach. House Republicans clearly didn’t heed his call. 

How does the Biden impeachment report fit into this story? On the one hand, House Republicans did push forward with an apparently retaliatory investigation that seems to have borne little fruit. On the other hand, though, the House seems to have lost its interest in actually bothering to impeach the president over it. Viewed optimistically, perhaps the Biden episode demonstrates that it’s more difficult to muscle through a purely partisan impeachment in the absence of any actual facts.

But “more difficult” doesn’t mean “impossible.” Biden was, of course, not the only high-ranking executive branch official into whom House Republicans opened an impeachment inquiry. Following an earlier, rank-and-file effort led by Marjorie Taylor Greene (R-Ga.), the House Homeland Security Committee sent a set of articles of impeachment against Homeland Security Secretary Alejandro Mayorkas to the full House in February 2024. The first vote on the articles failed, but a second—held when attendance numbers were more favorable for Republicans—passed, sending them to the Senate. In April, the Senate dispensed with the articles via a series of procedural votes rather than holding a full trial.

Mayorkas was not ultimately removed from office, and the House Republican Conference, with its very small majority, was sufficiently divided on the issue that adopting the articles of impeachment took two tries. But the fact that Mayorkas was successfully impeached while it appears Biden will not be illustrates another dynamic of contemporary impeachment politics: Even facing an identical partisan balance of power, not all futile impeachments are created equal. This particular retaliatory impeachment effort against Biden did not succeed. But that doesn’t guarantee that future efforts won’t.

In 1970, then-Rep. Gerald Ford (R-Mich.) famously quipped that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Getting to such a majority wasn’t easy in the Mayorkas case and has proved yet impossible in the Biden one. But the ability to tie an impeachment vote to a specific, highly salient political issue—in this case, immigration—likely helped sell House Republicans on the idea of voting to impeach Mayorkas, a tactic that could prove fruitful later down the line. The sprawling nature of the accusations against Biden, which also heavily involve alleged misconduct by relatives rather than by the president himself, lack the same clear political hook. When Biden dropped out of the presidential race, the political salience of an impeachment targeted at his family plummeted immediately. With that in mind, it’s not surprising that House Republicans have apparently decided to move on.

It’s impossible to know if House Republicans ever believed they could succeed in adopting articles of impeachment against President Biden in the House. Perhaps that choice to pursue the inquiry in the first place was more about managing demands from various elements of the conference than it was about a belief that impeachment articles would ever be sent over to the Senate. 

But while the effort to impeach Biden appears to have been ultimately futile, it does not mean it will be without consequence. Consider the Judiciary Committee’s lawsuit seeking to enforce its subpoena against Garland to obtain the Hur materials—which remains ongoing. The case could potentially shape future oversight efforts. The Justice Department, in responding to the suit, has argued not only that the audio recordings in question are protected by executive privilege but also that federal courts lack jurisdiction to hear the case and that House committees do not have a cause of action to sue to enforce compliance with subpoenas.

Litigation in recent years has left the jurisprudence in this area murky—perhaps illustrated best by the path of the McGahn case, which traversed a bewildering path back and forth between the trial and appellate courts. The case ultimately resolved with one ruling by the U.S. Court of Appeals for the D.C. Circuit establishing that the House had standing to bring, and the court had jurisdiction to decide, the case, along with a second pending D.C. Circuit ruling on whether the House had a cause of action, which was left unresolved when the House and the Justice Department reached an agreement in 2021 for McGahn to testify.

As the McGahn saga suggests, in recent years Congress has struggled to obtain information from a Justice Department that has become increasingly willing to make aggressive arguments that functionally lock the legislature out of the courts when it comes to enforcing subpoenas. Though the political valence has flipped from the McGahn case, when a Democratic House sought information from a Republican administration, the same general dynamic is at work here with the Justice Department arguing that the House’s subpoenas are not judicially enforceable. If the House pushes forward with the case, it could offer the courts new opportunities to make law on some of these questions. It’s also certainly possible that the Hur tapes case will be resolved without making substantial amounts of new law related to civil enforcement of congressional subpoenas—indeed, the Justice Department has often seemingly preferred to settle cases rather than allow courts to create precedent in this area. But the litigation illustrates how the consequences of an impeachment inquiry can reach beyond the simple success or failure of a vote on the articles themselves.

Despite that apparent lack of success, the House GOP’s Biden report might end up setting political precedent as well. There is no serious substantive comparison to be drawn between the Trump impeachments, which responded to serious abuses of power, and the largely manufactured concerns raised in the impeachment report against Biden. That hampered the GOP’s ability to turn the impeachment investigation into a full-blown impeachment, but it may not stop future retaliatory efforts that are able to gain more political traction. Perhaps in addition to—or instead of—futile impeachments, Congress watchers might expect to see more futile impeachment investigations: that is, impeachment probes that are conducted without ever actually resulting in an impeachment, even without any expectation of heading to an impeachment vote at all. Even if such performances achieve little in the way of fact-gathering or political advantage, partisans—particularly on the Republican side of the aisle—may come to expect them.

– Quinta Jurecic, Molly E. Reynolds. Published courtesy of Lawfare.