I’ll leave aside, for this post, concerns about the degree of wisdom of impeaching President Joe Biden (D) when there is no hope of the Senate seriously considering the matter during the ensuing trial, much less getting a serious vote regarding conviction or acquittal.
The question here is whether the House can impeach Biden (or any House impeach any President) for wrongs committed before he was in office as President.
House Republicans have floated launching an impeachment inquiry against President Biden amid newly surfaced allegations that suggest his involvement in the business dealings his son, Hunter. But can congressional lawmakers initiate the use of that constitutional tool for alleged treason, bribery or high crimes and misdemeanors that transpired before holding the office of the presidency?
Alan Dershowitz says,
The answer is clear. No one knows.
I beg to differ. Here’s what Article II, Section 4, of our Constitution says:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Nowhere in that Article, nor anywhere else, does our Constitution define high Crimes and Misdemeanors. Those are whatever the House wants them to be, and more concretely, they’re whatever the Senate agrees with the House on and votes to convict.
Additionally, that lack of specificity regarding high Crimes and Misdemeanors necessarily includes lack of specificity surrounding when the behaviors occurred. Nor are there any timing constraints in Article I, Section 2 (regarding the House’s power of impeachment), or in Article I, Section 3 (regarding the Senate’s power to try impeachment cases), regarding those behaviors.
And, in any event there is no recourse for an impeachment and conviction: that outcome is unappealable.
I claim, then, that the answer is, indeed, clear. The House can impeach a President for any reason it wishes. But in the present case, such a move would be, in the words of a Senator of some years, a dumb idea.
We the People, now knowing better, shouldn’t reelect Biden. The House should move to impeach only on the basis of Biden’s current, in-office misbehaviors, and even then it should move only when there’s a serious chance that the Senate would conduct a serious trial. Impeaching absent that Senate seriousness would, at best, be a waste of time.
Conducting the impeachment inquiry that Speaker Kevin McCarthy (R, CA) is considering would be a very good idea. That would get the information regarding Biden’s current misbehaviors in front of We the People in time for us to consider it as we cast our votes in 16 months, even if it would be unlikely to convince Biden’s Progressive-Democratic Party Senate syndicate to take the matter seriously.