Impeach Joe Biden … Seriously

By Jonah Goldberg

Friday, December 06, 2024

 

In a much healthier republic, Congress would impeach Joe Biden for pardoning his son. 

 

If you’ll forgive just a soupçon of Swiftian excess, I think the case that Congress should impeach Biden is quite strong. 

 

Let me set the table for a moment. It is true that the president’s pardon power is pretty much absolute—save for the fact that he can only pardon federal crimes and can’t pardon impeachable offenses. This in turn leads many people to think the president can’t be impeached for bad pardons. But this is wrong. Congress’ power to impeach and remove is pretty much as absolute as the president’s power to pardon. Lawyers, partisans, and pundits routinely deny this when they don’t want a particular president impeached (and often agree with this when they do want a particular president impeached). They claim that a president has to commit a “high crime” or “misdemeanor” to commit an impeachable offense, and since the president has the authority to pardon whomever he wants, and for any reason, he can’t be impeached for using his constitutional authority. 

 

I’m not going to get into the weeds about what high crimes and misdemeanors are, because it doesn’t really matter save to say that, as a practical matter, they are whatever Congress decides they are. No court will ever overturn a congressional impeachment and removal, so even if Congress is wrong in some cosmic sense, it still has the final say. Similarly, presidents have the final say on pardons.

 

Indeed, if a president sold a pardon for cold hard bitcoin and got caught, the president could be impeached and removed for it (and should be!) but the pardon he sold would stand because pardons are not reviewable by courts or Congress. (If memory serves, when my friend Andy McCarthy was still at the Department of Justice and looked at Bill Clinton’s last-minute pardon of Marc Rich, he concluded that even if Rich explicitly bought the pardon—not a huge if—the pardon would stand.). 

 

But, again, that doesn’t mean a president cannot be impeached for an improper pardon. Don’t take my word for it. 

 

At the Virginia Ratifying Convention in 1788, George Mason argued against the sweeping nature of the proposed pardon power in the United States’ new Constitution:

 

Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

 

James Madison, the chief author of the Constitution, had a ready rejoinder:

 

There is one security in this case [of a power-abusing pardon] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President.

 

Now, I don’t have a Federalist Society decoder ring or anything, but if James Madison defended the Constitution’s pardon power—at a convention to ratify it!—by saying that crappy pardons are grounds for impeachment, then I think I’m right and every TV lawyer talking out of his Dershowitz saying otherwise is wrong. 

 

The question is, therefore, does the Hunter Biden pardon qualify as the kind of thing Madison had in mind? On its face, I think it does. I don’t want to use up a lot of space explaining why, for reasons I’ll get to in a second. But I think it’s worth noting that Mason’s concern that a president might set up a monarchy is relevant here. If presidents are granted the objectively kingly power to immunize others against the law on their own behalf, we are well down the road to a quasi-monarchy already. If illegal acts are suddenly legal when done on behalf, or for the benefit of, a president, we no longer have a nation of laws. When Biden named Merrick Garland as his attorney general, he said:

 

I made it clear from the moment I entered this race that what I believe was at stake. I said there was nothing less at stake than who we are as a nation, what we stand for, what we believe, what we will be. At the center of that belief is one of the oldest principles this nation has long held, where our government of laws, not of men, not of the people, of laws.”

 

There was no asterisked footnote saying, “unless it’s my son and erstwhile business partner.”

 

Now, the reason I don’t want to belabor the point of whether Hunter’s pardon falls into the kind of scenario Madison envisioned is because it just doesn’t matter. What I mean is, if Congress decides that it does, then it does. Period. 

 

Which brings me to the argument for why Congress should impeach Biden for it. First of all, who among us wouldn’t celebrate having the first black-Asian-female president for five minutes or so?

 

But more importantly, it would be an act of civic hygiene. Congress would assert its primacy and send a clear signal that the sort of corrupt self-dealing that both Democrats and Republicans claim to loathe is no longer acceptable. 

 

What’s really interesting is how Republicans, who have been ravenously hungry to impeach Biden for four years, seem to have lost their appetite entirely. I mean, Donald Trump reportedly used to hector Republicans about when—and how many times—they were going to impeach Biden. 

 

Republicans have introduced 15 impeachment resolutions against Biden. His release of oil from the Strategic Petroleum Reserve? Impeachable! His mishandling of the border? Impeachable! Extending the COVID eviction moratorium? Impeachable! And, most relevant, covering up his shady dealings with his brother and Hunter? Impeachable, baby!

 

But now that Joe has issued a blanket pardon of Hunter? No articles of impeachment. In fairness, there is chatter about impeaching him. 

 

But here’s why I think they won’t do it. And it’s not because of their abiding interest in norms or fairness. They don’t want to lay down the precedent that such abuse of power is impeachable, because Trump wants that power for himself. 

 

And that’s precisely why Democrats should take the lead in the effort to impeach Joe Biden. Politically, it would be wildly messy, obviously. But, ultimately, I think it would be good for the Democrats. With this one cool trick, they could erase the enormous damage they’ve done to themselves and punish Biden for screwing them so thoroughly.  More importantly, they’d lay down a marker that Trump cannot rely on formal arguments of presidential authority to defend corrupt but technically legal abuses of power. 

 

Andy McCarthy wrote back in 2018 that, “we’ve become such a litigious society we fail to recognize that the Constitution mainly relies on political checks, not judicial ones.” Sacrificing Biden for the sake of even partially restoring those political checks is a small price to pay—even if it’s “unfair” to Biden.

 

The Case for Hardball

 

Which brings me to the much-discussed internal discussions inside the Biden administration to offer blanket preemptive pardons to a slew of people Trumpers would like to legally prosecute or persecute. 

 

Nick Cattogio does an excellent job running through the pros and cons of what I still consider to be an absolutely horrendous idea. Again, if you share Mason’s concern about the destruction of the republic, I can think of no better way than establishing the precedent that presidents can and should issue blanket and sweeping pardons to allies, aides, business partners, and family members for any wrongdoing even before they’ve been charged with anything. And I say that fully acknowledging that there’s plenty of reason to believe—or at least worry—that the next administration will be outrageously and performatively vindictive against lots of innocent people. 

 

I think where I differ with Nick is that he’s more despairing of the republican virtue of the American electorate than I am. “If most voters cared about Trump’s illiberalism,” Nick writes, “America wouldn’t have reelected a coup-plotter on the off chance that he’ll bring the price of eggs down by a quarter.” I take his point, and I don’t dismiss it, even if I think it’s overstated. 

 

But this leaves out the fact that, by his own framing, “most” of Trump’s voters voted for the price of eggs to drop—and not to provide a steady stream of content for the Charlie Kirk podcast.  

 

And that’s why I think he gives short shrift to the very real possibility—I would argue the very strong probability—that a Trump administration consumed by its political vendettas would be bad for Donald Trump and his presidency.  

 

Again, I want to be clear: I think a “retribution” campaign against Kash Patel’s enemies list and the “Deep State” would almost certainly be a grotesque, probably impeachable, abuse of power. I don’t think Liz Cheney or Mitt Romney—or even Sarah Isgur—did anything wrong. And I would be enraged by a punitive campaign against them. 

 

But as unfair as it would be to them, I don’t think that unfairness would work to Donald Trump’s benefit. And trying to preempt it wouldn’t necessarily work to the country’s benefit, or the Democrats’.

 

I get that a lot of people think Trump has a “mandate” to do all of the stuff that makes the Bannonites tumescent. He campaigned on retribution, they note, so therefore he has every right to pursue retribution. I get the political logic of that, but it’s also really stupid. 

 

Nick has argued very persuasively, albeit dyspeptically, that the American voters should get Trumpism “good and hard.” There’s a Burkean element to that argument. “Example is the school of mankind and he will learn at no other.” You want Trump unplugged, well here. Let’s see how you like it. 

 

That argument applies to the Patelian (as in Kash) jihad, too. An electorate that voted for lower egg prices, may not find a steady stream of bogus prosecutions—and the political and legal chaos that will result—a satisfactory substitute.

 

For starters, let’s assume there’s no evidence that the people on Patel’s enemy list actually committed serious crimes because, you know, they didn’t commit serious crimes. That means they would be revealed as victims of a witchhunt, as the Trumpers like to say. For Liz Cheney and some of the other politicians, that could likely improve their political prospects. But it would certainly give them enormous platforms: Media coverage, fundraising, etc., would go to 11. Personally, I’m hoping there will be a serious effort to create a legal defense fund, so that Cheney et al. aren’t drowned in legal fees. But ultimately, the courts would likely be inhospitable to a hackish MAGA effort, even if laundered through the DOJ (amid many resignations and scandals as AG Bondi and FBI Director Patel try to make it all work). And the Trump administration would look ridiculous, and Trump would look unconcerned with the concerns of the people who voted for him. 

 

Think of it this way: Trump’s ideas about trade are preposterous. Letting him have all the tariffs he wants is the quickest way to (re)learn that lesson. Lots of Trump-aligned wonks are quietly trying to work out ways to make Trump’s trade policies less damaging, and that is the responsible thing to do, of course. 

 

But the difference between tailoring tariffs to be less economically damaging and issuing blanket preemptive pardons is that issuing blanket preemptive pardons would not be the responsible thing to do for the reasons I’ve suggested. 

 

More to the point, it would be a gift to Trump. Trump cares more about talking points than facts. For all his talk about how he got rid of NAFTA he didn’t actually get rid of NAFTA —he modestly tinkered with it and gave it a new name. He didn’t care about an actual investigation into Biden’s vice presidential dealings with Ukraine or actual evidence that the 2020 election was stolen. He just wanted press releases that let him make his claims. He doesn’t really want capable, swamp-draining reformers, he wants good talking heads on TV. 

 

If you take Liz Cheney and all of those people off the board preemptively, you give Trump cover to say Democrats rigged the system again and deprived the American people of the opportunity to get justice for the so-called crimes Cheney, Isgur, and Anthony Fauci committed. You’re saving Trump from himself. You’re giving him the excuse he needs to tell the Bannonites he can’t do show trials as promised while simultaneously tainting the innocent with the implication of guilt. It’s the best of both worlds for Trump, because you’re giving him the talking points while denying him the ability to follow through on any of his promises. 

 

Worse, you will have established the precedent that presidents can issue pardons for future crimes committed on the president’s behalf. That’s a precedent that Donald Trump will surely be grateful for. Indeed, I fear the Hunter Biden pardon—and these insipid “discussions”—has already done exactly that. Which is another reason to impeach Joe Biden. 

 

I’m open to some new argument that Biden doesn’t deserve to be impeached—but I’m not sure that deserve has anything to do with it.