Impeachment expert Michael Gerhardt breaks down House GOP inquiry into Biden

William Brangham:

It has been another significant day on Capitol Hill.

House Republicans have voted to open an impeachment inquiry into President Biden and his family's business dealings. This comes as talks over the border and Ukraine funding hang in the balance.

Lisa Desjardins is covering it all, and she joins me now.

So, Lisa, what does this impeachment vote mean?

Lisa Desjardins:

Right.

This is essentially a legal and symbolic step, symbolic because House Republicans have already launched this inquiry into the Biden family and the question of whether President Biden was corrupt in his relationship to Biden family business dealings. But, really, it's mostly a legal move by House Republicans.

By taking this vote, by getting the backing of the full House Republican Conference and the House itself, they believe they will have more leverage in court to enforce subpoenas that are related to this impeachment inquiry. And that includes subpoenas against the president's son, Hunter Biden.

Hunter Biden was on Capitol Hill today defying a subpoena to testify behind closed doors. He spoke on the steps of the Capitol saying he wants to testify in public. Now, he said that there is no case against his father.

Hunter Biden, Son of Joe Biden: Let me state as clearly as I can, my father was not financially involved in my business, not as a practicing lawyer, not as a board member of Burisma, not in my partnership with a Chinese private businessman, not in my investments at home nor abroad, and certainly not as an artist.

Rep. Jim Jordan (R-OH):

He said his father was not financially involved in the business. And I think that qualifier, the word financially, is important, because once again it shows another change, another change in the story. At first, it was no involvement, then, no, I never, never talked to anyone, and then we find out about the dinners, the meetings, the phone calls, everything else.

Lisa Desjardins:

And that's Republican Judiciary Chairman Jim Jordan saying he thinks there's something going on with the words that Hunter Biden is using.

Biden's team and the White House say this entire thing is baseless. In fact, just a few minutes ago, the White House came out with a statement calling this a stunt.

As for Hunter Biden, however, he could face contempt charges from the House recommended to DOJ because of his refusal for this subpoena.

William Brangham:

I mean, Lisa, yesterday Speaker Johnson said, with this vote, that this was not a political move, that this was about the law.

Do we have any understanding of how voters are viewing this impeachment?

Lisa Desjardins:

We do.

We actually have new information from a poll just out today from NPR, PBS and Marist. And that poll shows us Americans overall are divided on this question of whether they approve of this impeachment inquiry or not. Look at that, split almost right down the middle. But it's not really a clear picture, William, because, as you may guess, this is a sharply partisan divide.

Let's look at the numbers by party. There you can see Republicans, 78 percent of them approve of this impeachment inquiry, 24 percent of Democrats. But let's circle that Democratic number, because 24 percent of Democrats saying a Democratic president, they approve of an impeachment inquiry is significant.

And, William, I looked at the data. That's led by Democratic men, something that I think the president's campaign will have to pay attention to.

William Brangham:

And, Lisa, as you reported yesterday, this all comes as we are right at this very pivotal next couple of days for border and Ukraine funding. Tell us where things stand on that front.

Lisa Desjardins:

Right.

I can report that we are expecting now another meeting tonight at the U.S. Capitol with principal negotiators in this critical set of talks. Let's look at who that is. DHS Secretary Mayorkas is meeting behind closed doors with Senator Chris Murphy, the Democrat, independent Senator Sinema, and then, there you go, Republican Senator James Lankford.

Those have been primary — the primary dealers here, but the White House has gotten more involved. Laura Barron-Lopez and I have been spending the last couple of days really digging in on reporting on this. We can report that the White House has, in fact, indicated it can support some tougher immigration measures, including some increased expulsion measures, including for those who apply for asylum, and increased detention as well.

For those who want asylum, they would have to wait in detention potentially under these measures, rather than be released into the country. You may not be surprised some Senate Republicans say it's a step in the right direction, but immigrant advocates say they are outraged, including Congressional Hispanic Caucus members.

They held a news conference today decrying what they think the White House is willing to agree to and also their lack of representation at the table.

Sen. Robert Menendez (D-NJ):

That is a hard slap in the face to all the Latino and immigrant communities we represent. Imagine the administration trying to cut a deal on voting rights or civil rights without bringing any members of the Congressional Black Caucus to the table. That would never be tolerated, and we absolutely cannot tolerate this either.

Lisa Desjardins:

There is no deal yet, and we do not know if the Senate is going to stay or go, but the next 24 hours will tell us so much, William.

William Brangham:

All right, Lisa Desjardins, as always, thank you so much.

To explain exactly what changes with a formal impeachment inquiry, I'm joined by Michael Gerhardt. He is a professor at the University of North Carolina Law School, and he's testified at the impeachment hearings of Presidents Clinton, Trump, and Biden. His upcoming book "The Law of Presidential Impeachment: A Guide for the Engaged Citizen" is out next month.

Michael Gerhardt, thank you so much for being here.

Under former Speaker McCarthy, the House Republicans had already started this impeachment inquiry. You were there testifying about this in September. So what changes with today?

Michael Gerhardt, University of North Carolina: What changes with today is nothing, insofar as any evidence is concerned.

One of the embarrassing things that happened at that last hearing is, it became obvious to everybody that there was no evidence of President Biden's wrongdoing. But what's changed is, we have a new speaker. And, as you have pointed out previously in the program, the speaker and other Republicans believe that, by calling this formally an impeachment inquiry, they will have in courts more power, the courts will recognize that the House has more power to go after Hunter Biden.

And, again, that's one of the real problems here, which is all the focus right now is on Hunter Biden and not on President Biden. But Hunter Biden is not an impeachable official. He's a private citizen.

William Brangham:

So House Republicans, though, do make this argument that, even though we have had these committee hearings and we have been looking into this, that we do need these investigative tools.

So, specifically, what things are they able to do now that they couldn't do before?

Michael Gerhardt:

It's actually not entirely clear.

They — they — what Republicans are saying is that they're not getting compliance with some subpoenas and they're not getting the data that they want. But the problem is that Republicans want to use these subpoenas for a fishing expedition. They don't know what they're looking for. They don't know if they will find it.

The problem, again, is that the cart has been put in front of the horse. We have got an impeachment inquiry for the first time in American history authorized against the president in the absence of credible evidence.

And, instead, Republicans are hoping that with this formal authorization of an impeachment inquiry, they can persuade courts that they can perhaps get at bank accounts they have not been able to get up before, not because they think there's anything there necessarily, but because they're still fishing to try and find stuff about President Biden, as opposed to Hunter Biden.

William Brangham:

I appreciate what you're saying on that front, but the Republicans argue that they do need those tools and that you might characterize it as a fishing expedition, but is it not — is it considered somehow illegitimate for them to use this process to try to get at those answers?

Michael Gerhardt:

At this point, I would say it is illegitimate, and that's because, typically, impeachment inquiries are authorized once there's credible evidence of presidential wrongdoing.

That happened with Clinton, it happened with Donald Trump in 2019, and it happened with Richard Nixon back in the 1970s. This is an unusual circumstance, in which Republicans are finding out lots of things about Hunter Biden, and they want more subpoenas to get at not just Hunter Biden, but other people in the Biden family who may or may not have information about Joe Biden.

That's almost the definition of a fishing expedition. They don't know what people know. Instead, they just want to have the power to — in a sense, to press people and see what comes up. It may or may not have anything to do with the president.

But, again, that's not how the process is supposed to work. Typically, House committees investigate, discover evidence that may show that the president has committed some kind of serious wrongdoing. Keep in mind as well, at the September hearing, the Republicans' own witness said that they didn't find any evidence at that point showing Biden had committed an impeachment offense.

So nothing's changed between their saying that and today, except that, today, the House approved a formal impeachment inquiry against President Biden, with the hope that they will have greater subpoena power to conduct this ex — this inquiry to discover who knows what. We don't know what they're looking for, and I don't know if they know what they're looking for.

William Brangham:

So, lastly, what is the logistics of the next steps? I mean, what comes next? What do you expect to likely happen?

Michael Gerhardt:

Well, I think what'll likely happen is, there will be committees in Congress, like the Oversight Committee and the Judiciary Committee, and they will begin to conduct hearings, at which supposedly there will be some evidence gathering and evidentiary findings.

In addition, there may be a court case filed against some of these subpoenas. That's what the Republican leadership's worried about. And in the court cases, at that point, courts will then have to determine the legitimacy of the subpoenas that have been issued. And the Republican hope is, by formally authorizing the inquiry, they can use the most powerful mechanism Congress has for investigations, impeachment, to support their inquiry.

William Brangham:

All right, Michael Gerhardt at the University of North Carolina School of Law, thank you so much for being here.

Michael Gerhardt:

Thank you.