During Rep. Jim Jordan’s opening remarks during the first hearing of House Republicans’ impeachment inquiry targeting President Joe Biden, he expressed a long-understood formula for political shenanigans.
“This is a tale as old as time,” said Jordan, R-Ohio, a member of the House Oversight and Accountability Committee, which held the hearing, as well as chairman of the Judiciary Committee. “Politician takes action that makes money for his family, and then he tries to conceal it.”
House investigators argue that evidence shows Biden family members received transfers of large sums of money from foreign sources, including China and Ukraine, as a result of first son Hunter Biden’s overseas business dealings.
Although Jordan’s words may describe the typical political scandal, the Biden probe marks the first presidential impeachment inquiry predicated on alleged financial misconduct—or using public office for monetary or personal gain.
Still, plenty of impeachment precedent exists for alleged profiteering from office, which has led to the ouster of federal judges and one Cabinet secretary over the years.
In the opening hearing Thursday for the impeachment inquiry, experts testified that Congress should explore the grounds for bribery, conspiracy, and tax fraud charges—all of which have been the basis of past impeachments.
Historically, conduct that leads to an impeachment may be divided into two types of improper use of office, contends a 2015 report by the Congressional Research Service.
The first is a “vindictive use of office,” according to the report, and the second type is behavior that “involves misuse of the office for personal gain,” which is at the center of the allegations against Biden.
This second type of conduct, the Congressional Research Service report says, led to the impeachment of several federal judges who were ousted as a result—including the late Rep. Alcee Hastings, D-Fla. The secretary of war in the Grant administration also was impeached for financial improprieties.
In some cases, the alleged offenses preceded a judge’s time in his current office, which is similar to today’s investigation into alleged influence peddling by Biden and other members of his family while Biden was vice president to Barack Obama from 2009 through 2016.
In other examples, Congress impeached and removed federal officials based on financial irregularities that didn’t rise to the level of a criminal prosecution.
“Financial crimes have been the most common basis for impeachment of federal judges, and the Constitution directly mentions bribery as a ground for impeachment,” Curt Levey, president of the Committee for Justice, a conservative legal group, told The Daily Signal.
“What Biden is accused of fits easily and squarely into what historically has been impeachable and what the Founders had in mind,” Levey said.
‘Prostituting His High Office … for Private Gain’
President Ulysses S. Grant’s secretary of war, William W. Belknap, resigned two hours ahead of a scheduled House impeachment vote.
That move didn’t work. The House impeached Belknap anyway in March 1876. The Senate held a trial, but acquitted him when a majority, but not the required two-thirds majority, voted to convict him.
A House investigation had found evidence that Belknap took part in kickbacks and corruption involving a military vendor who paid $20,000 to Grant’s war secretary, who ran the equivalent of today’s Defense Department.
The House didn’t impeach Belknap over alleged bribery, an offense specifically proscribed in the Constitution, but managed to use more colorful and almost racy language.
“Bribery was mentioned at the Senate trial,” the 2019 CRS report says, “but it was not specifically referenced in the impeachment articles themselves.”
The House approved five articles of impeachment against Belknap, including one accusing him of “criminally disregarding his duty as secretary of war and basely prostituting his high office to his lust for private gain.”
Belknap remains the only presidential Cabinet secretary ever to be impeached.
Impeached for Conduct Before Taking Office
Two federal judges have been impeached over actions before they entered their then-current public offices, similar to the threat of Biden’s potential impeachment for actions he took while vice president.
In 1912, the House impeached Judge Robert W. Archbald of the U.S. Court of Appeals for the 3rd Circuit, alleging in 13 articles of impeachment that he used his office to acquire business favors from both litigants and potential litigants in his court.
President William Howard Taft had appointed Archbald to the appeals court.
After a trial, the Senate convicted Archbald on four articles alleging misconduct in his position as a circuit judge as well as a fifth article involving his conduct in his previous offices of a district judge and commerce court judge. Notably, that conduct did not appear to violate any criminal statute directly, according to a separate 2019 Congressional Research Service report.
Almost a century later, in 2010, the House impeached U.S. District Judge Thomas Porteous, of the Eastern District of Louisiana, on four articles. Porteous, an appointee of President Bill Clinton, is the most recent federal judge to be impeached.
The impeachment scandal revolved around accusations that Porteous had a financial relationship with attorneys in a case before him. The federal judge also was accused of receiving things of value from a bail bondsman in return for helping the bondsman develop corrupt relationships with state court judges.
The first article of impeachment had to do with conduct that occurred before Porteous became a state judge in Louisiana. The second article alleged that Porteous lied to the Senate during its confirmation hearing on his nomination by Clinton as a federal judge.
During his Senate trial, Porteous argued that charges predating his time as a federal judge could not be grounds for impeachment.
The Senate convicted him, removing Porteous and disqualifying him from holding future federal office.
Thomas Jipping, who was deputy counsel for the Senate Judiciary Committee during the Porteous trial, said impeachment is such a political and legal process that it can be difficult to determine whether a precedent has been established.
“Each impeachment is totally unique. None are entirely comparable. So, you don’t need a precedent,” Jipping, now a senior legal fellow at The Heritage Foundation, told The Daily Signal. (The Daily Signal is the news outlet of The Heritage Foundation.)
“Past cases can provide guidance, but impeachment is so rare and each is based on a specific set of facts,” Jipping said. “It’s the exception to the rule.”
Two Democrat senators at the time issued statements saying that it didn’t matter when Porteous had committed corrupt acts.
Then-Sen. Claire McCaskill, D-Mo., who chaired the Senate panel conducting the trial, characterized Porteous’ argument as an “absolute, categorical rule that would preclude impeachment and removal for any pre-federal conduct.”
“That should not be the rule, any more than allowing impeachment for any pre-federal conduct that is entirely unrelated to the federal office,” McCaskill said.
Then-Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, said his colleagues should reject “any notion of impeachment immunity [for pre-federal behavior] if misconduct was hidden, or otherwise went undiscovered during the confirmation process, and it is relevant to a judge’s ability to serve as an impartial arbiter.”
Porteous was not charged criminally, even though his case emerged from an FBI investigation.
Today, if more evidence mounts against the president, it’s not likely that Democrats will fall back on the argument that Biden was only vice president as millions came in from foreign sources, the Committee for Justice’s Levey said.
“We might see Biden’s lawyers make that point, but I don’t think Democrats in Congress will,” Levey said. “It’s just not a compelling case.”
Falling Short of Criminal Conviction Standard
Not facing criminal charges is one matter. One judge was impeached after a jury acquitted him.
As a Democrat in the House representing Florida, Hastings voted against impeaching Clinton, a fellow Democrat, in December 1998 and for impeaching President Donald Trump, a Republican, in December 2019 and again in January 2021, six days before Trump left office. Hastings also voted in two of the House’s judicial impeachments.
In a bit of political theater during the Clinton impeachment process, Hastings introduced an impeachment resolution against independent counsel Kenneth Starr, who had completed a report to the House on the constitutional grounds for impeaching Clinton.
Hastings died in 2021, while still in Congress. But the Democrat’s career in the House came after his own impeachment and removal as a federal judge.
In 1979, President Jimmy Carter, a Democrat, appointed Hastings as a district judge for the Southern District of Florida.
Hastings was impeached by the House and tried and removed by the Senate in 1988, a time when Democrats controlled both chambers, despite having been acquitted by a jury in a criminal trial.
Hastings had been charged in 1981 with conspiracy and obstruction of justice for allegedly soliciting a $150,000 bribe to reduce the sentences of mob-connected felons. A jury acquitted him after a trial in 1983, although his alleged co-conspirator, William Borders, was convicted.
The Judicial Conference, a national entity composed of federal judges that reviews investigations of other judges, reviewed the Hastings case and sent a referral to the House of Representatives.
The House approved 17 articles of impeachment against Hastings, including perjury, bribery, and conspiracy.
The judge contended that the House’s impeachment proceedings constituted “double jeopardy,” since he already had been acquitted in a criminal trial.
The Senate reached a two-thirds vote to convict Hastings on eight of the 17 charges, removing him from office but not disqualifying him from holding future office.
Florida voters elected Hastings to the House in 1992.
The Hastings case is among those demonstrating that proof of guilt beyond a reasonable doubt, so key to a criminal trial, doesn’t have the same status in an impeachment case.
Democrats on the House Oversight and Accountability Committee repeatedly said during Thursday’s hearing that there is “no evidence” that Biden benefited personally from the more than $20 million from foreign persons or businesses received by Biden family members and their associates.
Jonathan Turley, a law professor at George Washington University, countered that argument during the hearing.
“Even under criminal cases, when you deal with bribery, extortion, the Hobbs Act, courts actually have rejected that,” Turley said. “They’ve said that money going to family members is in fact a benefit. … This idea that you can have millions going to a politician’s family and that’s not a benefit, I think is pretty fallacious.”
The Hobbs Act, which became law in 1946, prohibits robbery or extortion that affect interstate or foreign commerce and outlaws conspiracy to do so. The law has been used in prosecuting racketeering and public corruption cases.
Tax Crimes
It was fairly easy for the House in 1986 to impeach U.S. District Judge Harry E. Claiborne of Nevada, a Carter appointee, after he was convicted in a criminal trial of making false statements on his tax returns. Claiborne refused to resign from the bench despite being incarcerated.
The articles of impeachment echoed a criminal indictment, and one asserted that “by conviction alone he is guilty of … ‘high crimes’ in office.”
Claiborne’s Senate trial was the first to be conducted by a special committee rather than by the full Senate, as is customary for a presidential impeachment trial. All judicial impeachment trials since have been conducted by a committee, which sends a recommendation to the Senate floor.
The full Senate voted to convict Claiborne.
Big Business of Bankruptcy
In the late 1920s and the 1930s, bankruptcy could be big business for certain public officials.
In 1926, the House impeached U.S. District Judge George W. English of the Eastern District of Illinois on several charges, including showing favoritism to certain litigants before his court.
An appointee of President Woodrow Wilson, English was accused by the House of favoritism to Charles B. Thomas, his referee in bankruptcy, to whom he was “under great obligation, financial and otherwise.” The House also accused English of
manipulation of bankruptcy and other funds to benefit the referee, himself, and his son.
In 1933, during the Great Depression, the House impeached U.S. District Judge Harold Louderback for allegedly showing favoritism in appointing bankruptcy receivers, which were coveted positions in light of the 1929 stock market crash.
Although the House Judiciary Committee voted against recommending impeachment, the full House adopted the recommendation of the minority report and voted to impeach English anyway. The judge resigned before a Senate trial, and the Senate dismissed the matter.
In another Depression-era impeachment, the House voted in 1936 to impeach U.S. District Judge Halsted L. Ritter of the Southern District of Florida for profiting off the appointment of receivers in bankruptcy proceedings.
The Senate reached the required two-thirds supermajority only on the final impeachment article accusing Ritter of bringing his court into disrepute and undermining the public’s confidence in the judiciary.
Ritter faced no criminal charges, kept his law license, and went into private practice.
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