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How Republicans made a U-turn on impeachment

2023 isn’t 2019, it turns out.

- December 16, 2023
U.S. Capitol Dome. Congress.
U.S. Capitol Dome, Architect of the Capitol

Why did the House vote on Wednesday – along straight party lines – to authorize a formal impeachment inquiry against President Joe Biden? 

Well, without such a vote, the House minority leader may rail that the speaker “can’t decide on impeachment unilaterally. It requires a full vote of the House of Representatives.” Avoiding a vote would prove “this is all about politics. Not about facts.“

Indeed, without such a vote, the White House Counsel may inform the speaker that the president will refuse to provide information the House requests – since “your inquiry is constitutionally invalid,” a “contrived process” that “lacks the necessary authorization for a valid impeachment proceeding,” not to mention “any pretense of fairness.” Without such a vote, the Justice Department may hold that an impeachment inquiry only carries legal weight – in terms of whether the president must comply with subpoenas, for instance – if a majority of the House has voted to authorize that inquiry.

If you’ve clicked on any of the links above – or have a good memory – you’ve found that these quotes, as well as the formal opinion from the Justice Department, are not from 2023 but 2019. That is to say, four years ago these were Republican arguments. House Minority Leader Kevin McCarthy (R-Calif.) blasted Speaker Nancy Pelosi’s (D-Calif.) announcement that she had authorized several House committees to investigate Donald Trump’s pressure campaign against Ukrainian President Volodymyr Zelensky, seeking an investigation into then-candidate Joe Biden. The centerpiece, of course, was a notably imperfect phone call during which Trump implicitly threatened to withhold military aid (which Congress had already appropriated) unless Zelensky announced such a probe.

At the time, Pelosi did not hold a full House vote. McCarthy later wrote to Pelosi demanding she suspend the inquiry unless she changed its direction; otherwise it was “a process completely devoid of any merit or legitimacy” inflicting “a supreme insult to our Constitution.”

Such definitive rhetoric aside, it is quite unclear how an impeachment process “should” begin. Importantly, during the Nixon and Clinton impeachments, the House needed to vote to grant its chairs subpoena powers. Today, the formal rules of the House already grant such authority to committee chairs. We have no solid precedent about whether courts are more likely to help legislators enforce subpoenas in an inquiry approved by the full House than in one simply announced by House leadership. Luckily, the n here is very small – verging on zero, in fact, given that after just five weeks Pelosi did hold a vote (which carried 232-196, with two Democrats voting “no.”)

Politically, though, such votes matter – not least because of the 2019 position-taking by Republicans. As late as September 10, 2023, House Judiciary Chair Jim Jordan (R-Ohio) stressed that a formal resolution is what allows the courts to “understand the House is engaged in a fundamental constitutional activity.” At the least, it allows the House majority to claim full institutional legitimacy for their inquiry and undermines the immediate objections of the president’s lawyers. 

That, in turn, matters because in September 2023 the Republicans executed a “U-turn of epic proportions,“ as Axios put it. Just two days after Jordan’s assertion, then-(but-not-now)-Speaker McCarthy did exactly what he had attacked Pelosi for doing four years before. At his direction, three House committees (including Judiciary) were told to “open a formal impeachment inquiry into President Joe Biden.”

Not surprisingly, Democrats were delighted to borrow from the 2019 Republican quote-book in response. The White House and the Justice Department adopted the Trump approach nearly to the letter, with Richard Sauter from the White House counsel’s office writing to Jordan and House Oversight Chair James Comer (R-Ky.) to ask them to withdraw their subpoenas in light of their earlier position that issuing such demands without a full House vote was “an abuse of power and brings discredit to the House of Representatives.” As in 2019, the House majority was accused of not having any evidence, not having the votes to move ahead formally, and of seeking to overturn the results of the last election via partisan innuendo. And so, like Pelosi – though 12 weeks later instead of five – new Speaker Mike Johnson (R-La.) brought the matter to the floor. With all of 50.8% of the House on board, the impeachment process now has a more formal foundation. 

Supporters of the vote claim no decision has been made on impeachment itself; the inquiry thus far has produced no evidence of presidential “high crimes and misdemeanors.” But finding such evidence may be beside the political point. The vote allows a new round of accusatory letters, hearings, and subpoenas, assuring media attention well into the 2024 primary season. (Not incidentally, just as former President Trump likely begins his national tour of state and federal courtrooms.) 

Of course, Rep. Johnson, before he was Speaker Johnson, strongly criticized the idea of “single-party impeachments.” It would be “bitterly divisive, perhaps irreparably divisive for the country,” he argued – yes, in 2019 – for one party to follow “a pre-determined political outcome to get to that end.” Drawing on his expertise as a former constitutional lawyer, Johnson added, “you don’t get to remove a president because you don’t like him.”

But the process so far suggests that another careening U-turn lies ahead. In the oncoming lane? Then-Rep. Gerald Ford’s oft-mocked 1970 contention that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”