Why McCarthy launched an impeachment inquiry without a vote – and why he can

Speaker Kevin McCarthy (R-Calif.) moved to launch an official impeachment inquiry on Tuesday in President Biden – without a vote in the House of Representatives.

It is perfectly legal and constitutional for McCarthy to launch an investigation without a vote. But this is a significant about-face for the Republican speaker, who declared just 11 days ago that he would not launch an official investigation without a floor vote.

It also leaves him vulnerable to cries of hypocrisy: McCarthy criticized former Speaker Nancy Pelosi (D-Calif.) for launching an impeachment inquiry against former President Trump in the same way in 2019. Pelosi announced an investigation on September 24thbut the house did not Vote on the matter by October 31st.

Asked Tuesday if he was being hypocritical, McCarthy pointed to Pelosi: “I’m not because she changed the precedent.”

“I warned her not to do it like that. And that’s what she did, that’s what we did,” McCarthy said.

The strategy has advantages for McCarthy.

Moving forward with an investigation without a vote allows for quick action on a priority for conservatives who have put pressure on the House speaker. McCarthy’s decision also protects moderates — particularly those representing districts that President Biden won in 2020 — from having to undergo tough voting.

But nothing McCarthy said Tuesday prevents the House from moving forward with a vote on an impeachment inquiry in the future, which is still a possibility, GOP aides told The Hill.

“Precedent allows the speaker to initiate an impeachment inquiry. “Speaker McCarthy’s announcement this morning represents the formal opening of an impeachment inquiry, but importantly does not preclude the possibility of a vote taking place in the future,” a senior House aide said.

“This phase of an impeachment inquiry provides the House with an opportunity to formally outline the scope of its investigation, notify the defendant and allow time for further discussions with members,” the aide said.

The impeachment inquiry against Biden centers on his family’s foreign business dealings and whether a tax crimes investigation into his son Hunter Biden was conducted unreasonably slowly.

Republicans have not yet shown that Biden personally benefited financially from his family’s business dealings or made policy decisions based on them, but have pointed to numerous conflicts of interest and accused the president of being dishonest about how much he earned talked to his son about his business.

Just a week and a half before he unilaterally launched an investigation, McCarthy told Breitbart News that if the House moved forward with an impeachment inquiry, “it would be by a vote on the floor of the House of Representatives, not by a statement from one person.”

The comments came after a CNN report said Republicans were discussing whether they could launch an investigation without a full vote in the House.

A reporter told McCarthy he was “confused” by the speaker’s statement 11 days before Breitbart. McCarthy replied: “I’m sorry you’re confused. Were you confused when Nancy Pelosi did it?”

White House oversight and investigations spokesman Ian Sams accused McCarthy of turning things around on the issue.

“House Republicans have been investigating the president for nine months and have found no evidence of wrongdoing. His own GOP members have said that “extreme politics at its worst,” Sams wrote on X on Tuesday.

McCarthy declined to answer questions about whether the move was aimed at avoiding the fight to initiate impeachment proceedings in the House, saying he had “quite a bit” of votes to pass an impeachment inquiry.

But a number of moderates were reluctant to launch an investigation, and McCarthy could only afford to lose a handful of Republican votes in the House’s slim GOP majority.

Rep. Don Bacon (R-Neb.), who represents a district Biden won in 2020, said he recommended the House not launch an impeachment inquiry.

“I believe there is corruption there, but in order to conduct an investigation you have to have direct evidence to the president. I think we’re close, so I don’t mind never doing it, but I just think we should set the bar high,” he added.

He also said he would have liked McCarthy to vote on the issue.

“I would have recommended taking the vote,” Bacon added. “I just think it’s right. But let’s face it, Pelosi started it, she set a new…precedent.”

“I don’t like it just because Pelosi did it, we did it,” Bacon added at another point. “Pelosi set the bar low.”

Rep. Ken Buck (R-Colo.) has also said that he doesn’t believe there is enough evidence to move forward with impeachment, but that it “doesn’t really matter” whether he supports an investigation or not, “because …”Three committees will continue their work as before.”

“I still want to see the evidence. But the impeachment inquiry, to me, was a distraction from the spending and appropriations processes,” Buck said. “I think now we’re focused on what we should be focused on: the approval process.”

Dave Rapallo, a law professor at Georgetown University who was on the House staff that handled Trump’s first impeachment, said that while the full House would have to vote on an article of impeachment to send the matter to the Senate, there were no guidelines for doing so the investigation must be carried out.

“There is no provision in the Constitution as to how impeachment can be initiated. There have been instances in the past where the House of Representatives voted on a resolution to initiate impeachment proceedings, but that was not a requirement. And of course that’s exactly what Speaker Pelosi did in the first impeachment trial when there was no resolution,” he said, launching an investigation.

“Republicans were apoplectic about it.”

At that time, McCarthy wrote a letter to Pelosi asking her to suspend the investigation.

“Unfortunately, you have not provided clear information about how your impeachment inquiry will proceed — including whether important historical precedents or basic standards of due process will be followed,” he wrote in 2019.

And on Twitter he said it was a fact that “Speaker Pelosi cannot unilaterally decide on impeachment. It requires a full vote of the House of Representatives.”

Former President Trump argued through then-White House counsel Pat Cipollone that he should not comply with the investigation’s demands because Democrats never brought the matter before the full House floor.

“Your request is constitutionally invalid and a violation of due process. “Never in our nation’s history has the House of Representatives attempted to launch an impeachment inquiry into the President without a majority of the House assuming political responsibility for that decision “by voting to approve such a dramatic constitutional step,” Cipollone wrote.

And then-House Judge Doug Collins (R-Ga.) warned that without a vote, the House would be in a “permanent state of impeachment.”

“Without express authorization from the full House of Representatives, the Court has no decisive yardstick for determining when formal impeachment proceedings have begun and when the committee is simply exercising its normal oversight powers,” Collins wrote in an amicus brief, urging a judge to block access to the Congress to block materials collected by special counsel Robert Mueller.

Rapallo said none of those arguments have any legal weight because a vote is not required under the Constitution or House rules.

“A resolution is not technically required for them to use these powers. As for why he didn’t have the votes he said he would have, it may very well be that he doesn’t have the votes,” Rapallo said.

“’I’m less concerned about the lack of a vote for the impeachment inquiry than I am about the lack of any evidence.’

One of the purposes of launching an impeachment inquiry, Republicans say, is to give legal weight to their requests for information to the Biden administration.

“I think the courts are much more willing to look at it this way: ‘Oh, the House of Representatives is now – in a different mode, focused on a constitutional duty that is the sole responsibility of the House – an impeachment inquiry,'” the justices said House Committee Chairman Jim Jordan (R-Ohio) said. “I think the courts would say, OK, give them the information.”

Asked whether the same legal weight would be given only by the speaker’s word rather than a vote by the full House, Jordan said: “I think there is that potential.”

“And I don’t think the speaker said he was against a vote. Maybe we’ll have it at some point,” Jordan said.

Some Republicans would have preferred a vote, but they don’t object to McCarthy’s one-sided statement.

“I think there should be a vote, but I’m willing to move forward with it,” said Rep. Dan Bishop (R-N.C.), a member of the House Judiciary Committee.

Caroline Vakil contributed.