This week, the House of Representatives is poised to pass a resolution formalizing an impeachment inquiry into President Joe Biden. In this report, we critically assess the evidence offered to justify an impeachment inquiry; we describe the purposes and substantial perils of the impeachment power; we identify ten principles of constitutional law and lessons of history essential to evaluating the House Republicans’ position; we describe the legal and political significance of commencing an “impeachment inquiry” (as well as the likely battles ahead); and we conclude by explaining why this House impeachment inquiry is manifestly unjustified.
In Part I, we address the factual background. There, we consider four sets of claims: first, that President Biden lied about his role in Biden family schemes abroad; second, that President Biden profited from his family’s business dealings; third, that President Biden acted corruptly in urging the ouster of a Ukrainian prosecutor during the Obama Administration; and fourth, that President Biden has obstructed Congress and interfered with law enforcement investigations into Hunter Biden. We conclude that none of these allegations holds water—and that publicly available evidence overwhelmingly disproves or contradicts them.
In Part II, we explain that impeachment exists only for the most extraordinary cases, where a president’s conduct reveals him as a continuing menace to the constitutional order and nothing short of immediate removal will protect the Republic. That is a high standard—and rightly so. The impeachment power is terrible in its own right. Activating the machinery of impeachment comes at a steep price for the American people, including the diversion of our leaders at times of crisis, the distortion of checks and balances, and the turbocharging of tribalism and partisanship. While impeachment is necessary in rare cases, as we experienced during the Trump administration, it is inherently hazardous. For that reason, more than any other constitutional power held by Congress, impeachment requires uniquely strong and clear justification—and demands the exercise of wise, nonpartisan statecraft by legislative officials.
In Part III, we offer ten core criteria for impeachment, drawn from the constitutional standard of “high Crimes and Misdemeanors” and centuries of historical experience:
- Impeachable conduct requires a “great and dangerous” offense against the Republic.
- Impeachable conduct must evince clear continuing danger to the Republic.
- Impeachable conduct must be plainly wrong to any reasonable person.
- Impeachable conduct generally requires intentional or willful wrongdoing.
- Impeachable conduct must be defined with precision and specificity.
- Presidents cannot be impeached for pre-office conduct (subject to narrow exceptions).
- Impeachable conduct need not be criminal, though serious criminality is relevant.
- Impeachments should be non-partisan in substance and appearance.
- Congress should treat impeachment as a remedy of last resort and scrupulously assess whether any alternative path can fairly address a president’s conduct.
- Impeachment does not exist for partisan sniping or scoring political points.
In Part IV, we apply these criteria to the House Republicans’ proposed impeachment inquiry. Based on our review of the evidence and our study of constitutional law, as well as a careful examination of the known facts as measured against the impeachment standard, we find that the inquiry is manifestly unjustified. Especially in light of the intensely partisan circumstances surrounding the House proceedings to date, this impeachment process is itself a misuse of power.
In Part V, we conclude by describing the significance of an “impeachment inquiry.” As a political matter, commencing an impeachment inquiry is a very big deal. It sends an unmistakable signal that the machinery of impeachment is being wheeled into position. If an impeachment inquiry starts as a partisan errand, it casts the process straight into illegitimacy. For that reason, an impeachment inquiry should never be soaked in electoral rhetoric or used for partisan retribution. Moreover, as a matter of prior practice and first principles, this step requires extraordinary justification. The House should not proceed with an impeachment inquiry unless it has received weighty, credible evidence of presidential conduct that would constitute “high Crimes and Misdemeanors” if proven true.
None of those criteria are met here. There is no basis for a Biden impeachment inquiry.
The full report is below and also available as a PDF.