GOP's phony impeachment will backfire — Trump and McCarthy will pay the price

McCarthy's cowardly capitulation has likely doomed his speakership — and could torpedo Trump for good in 2024

Published September 15, 2023 5:45AM (EDT)

US President Donald Trump (2L) walks next to US House Majority Leader Kevin McCarthy (R-CA) after a meeting at the US Capitol with the House Republican Conference in Washington, DC on June 19, 2018. (MANDEL NGAN/AFP via Getty Images)
US President Donald Trump (2L) walks next to US House Majority Leader Kevin McCarthy (R-CA) after a meeting at the US Capitol with the House Republican Conference in Washington, DC on June 19, 2018. (MANDEL NGAN/AFP via Getty Images)

On Tuesday, Reps. Marjorie Taylor Greene, Matt Gaetz and their Freedom Caucus allies, along with House Speaker Kevin McCarthy, announced an evidence-free impeachment inquiry of President Joe Biden. They were doing what members of the MAGA cult do — taking their marching orders from Donald Trump.

They are not motivated by a devotion to their public duty or by a desire to protect the Republic. Instead, as Greene admitted, they only want to make the impeachment inquiry  "long and excruciatingly painful for Joe Biden." 

In two significant respects, this has every prospect of backfiring. 

It may well ensure that Republicans lose control of the House in 2024, as already looks likely. And it could also give Joe Biden a boost as he runs for re-election, presumably against Donald Trump himself or, hypothetically, some MAGA-infused successor.

The framers of the U.S. Constitution intended impeachment as the most serious charge the legislative branch could launch against a member of another branch. It was meant only for "High Crimes and Misdemeanors," not for charges based on smoke, mirrors and a desire for  political retaliation. 

As Alexander Hamilton wrote, if the impeachment power is misused it can "agitate the passions of the whole community, and … divide it into parties more or less friendly or inimical to the accused." Hamilton called on those who wield this power to act with due regard for its "delicacy and magnitude." 

But there is nothing delicate about what the Republicans are now doing. 

Having been through two serious and substantive impeachments of Donald Trump, one for trying to overturn the Constitution after the 2020 election, and another for trying to extort an investigation of Joe Biden relating to Ukraine, the fact-based American majority understands all this. 

Having been through two serious and substantive impeachments of Donald Trump, the fact-based American majority understands this impeachment inquiry is political theater.

Retiring Sen. Mitt Romney, the 2012 Republican nominee for president, stated in a book excerpt published this week in The Atlantic: "A very large portion of my party really doesn't believe in the Constitution." Exhibit A is the Republican House impeachment "inquiry."

With hard-right MAGA activists pushing for and publicizing attempts to trivialize the impeachment power, most Americans are unlikely to accept Republican attempts to destroy the ultimate constitutional check placed on the presidency.

Let's look at the two potential prospects for backfire.

First, the Republican majority in the House is razor thin, with only five seats to spare. Eighteen Republican members come from districts won by Joe Biden in 2022. Few, if any, of those can afford to be seen as supporting impeachment in the absence of any evidence of serious wrongdoing. 

Astonishingly, Rep. James Comer of Kentucky, the House Oversight Committee chair — who, along with Rep. Jim Jordan of Ohio, has run point on anti-Biden hearings — has admitted that after a year and a half of investigating, Republicans have produced no evidence of any crime or misbehavior by the president. 

On Fox News last month, Rep. Nick Langworthy, a Republican from upstate New York, said that GOP investigators had "never claimed that we have direct money going to the president." 

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In other words, the MAGA crew wants us to believe that it's OK for them to proceed against Biden without evidence of wrongdoing because they never claimed to have any in the first place. Rep. Don Bacon of Nebraska, who represents one of the 18 Biden-friendly districts, observed that "to do an inquiry, you need direct evidence."

The lack of any supporting evidence of "High Crimes or Misdemeanors" helps explain why McCarthy announced an "inquiry" without calling for a vote by the full House. Republicans in Biden districts don't want to be on the record supporting a fact-free impeachment. 

Instead, they want to keep their seats, and the people they represent know what is really going on. According to MSNBC, a poll of voters in those 18 districts found that a clear majority "said an impeachment inquiry would be "a partisan political stunt," and the same majority "said an inquiry would be more about helping former President Donald Trump." 

For irony, it's hard to beat Tuesday's reporting from Politico: In January 2020, Attorney General Bill Barr's Justice Department issued a memorandum saying that "impeachment inquiries by the House are invalid unless the chamber takes formal votes to authorize them." 

McCarthy himself was for that idea, before he was against it. 

On Sept. 1 he told Breitbart News, "[I]f we move forward with an impeachment inquiry, it would occur through a vote on the floor of the People's House and not through a declaration by one person."

His flip-flop this week followed intense pressure from his right flank, which may be a new low for McCarthy's impotent speakership. As former Speaker Nancy Pelosi told CNN on Wednesday, "it isn't worth it to be speaker to abdicate that much jurisdiction over the House."

For now, that abdication may allow McCarthy to hold on to his job. But it won't help Republicans retain control of the House next year.

There's a parallel opportunity for Joe Biden. That's largely thanks to Donald Trump, the obvious puller of the strings in this impeachment puppet show. He has proven to be a master at creating electoral blowback for Republicans.

After winning the presidency in 2016 (thanks to a near-flukish Electoral College outcome), Trump led his party to the "blue wave" of the 2018 midterms and defeat in the 2020 presidential election. He then helped prevent the expected Republican wave election of 2022 by recruiting and backing extremist candidates in competitive districts.

Democrats' overperformance in state elections has been impressive so far in 2023, according to Brent Peabody of the Military, Veterans, and Society Program at the Center for a New American Security. The party's candidates have outpaced Biden's 2020 performance by an average of 8%. 

Similarly, recent state and national polling cited by the New York Times' Nate Cohn supports the idea that Biden has increased his likely margins in key battleground states.

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The point here is that independents, whose votes decide national American elections, see through the lies of the MAGA House to the reality of the pain it has inflicted on America. Those voters want the government to address real problems, like increasing wages, improving infrastructure, reducing prescription costs and dealing with other issues that help everyone. They see clearly that impeaching Biden and shutting down the government are nothing but political theater. 

As the Washington Post put it, McCarthy and his caucus have thrown "impeachment chum into the waters" because they are struggling to "accomplish the basic tasks of governance."

Impeachment without evidence in 2023 is much like the 2016 Republican-led Benghazi hearings which produced no serious evidence of wrongdoing. At the time, McCarthy himself said the quiet part out loud when he admitted that those hearings were not about facts but were about destroying trust in Hillary Clinton.

House Republicans today are offering a rerun of that politically motivated abuse of congressional power. Trump himself has acknowledged that this year's impeachment effort is pure vengeance: "Either impeach the bum, or fade into oblivion," he posted on social media. "They did it to us!" 

As Jonathan Chait wrote on Wednesday, "Republicans have been threatening a revenge impeachment against the next Democratic president literally since Trump's first impeachment."

Sensible Americans have seen what having Trump in power has meant for them and this country. In 2016, he won in part because Democrats failed to respond adequately to Benghazi. 

When asked on Wednesday about the impeachment "inquiry," Sen. John Fetterman of Pennsylvania responded sarcastically, "Oh my gosh. It's devastating. Please don't do it."

In 2022, activists organized what is effectively a "war room" operating to counter the phony Jordan-Comer "investigations." Just this week, they launched ads targeting the 18 Biden district Republicans. Biden, too, has a team focused on answering the fabricated charges

Fortunately, he has some history on his side, namely the impeachment of Bill Clinton in 1998. Although based on actual evidence of the president's perjury, it ultimately backfired and increased Clinton's popularity.

Sen. John Fetterman, the famously plain-spoken Pennsylvania Democrat, understands the potential benefit for Biden. When asked on Wednesday about the impeachment "inquiry," he responded sarcastically, "Oh my gosh. It's devastating."

"Don't do it. Please don't do it," he added in mock horror. 

But the current House majority doesn't have a great record of picking up on such warnings or heeding the dictates of political reason.

They are showing, as Hamilton warned, that impeachment can be misused by "leaders or … tools of the most cunning faction … and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny." 

But the judgment that Trump, McCarthy and company should fear is not just the judgment of history. Long before that, millions of American voters will deliver their verdict on Election Day.

By Austin Sarat

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere.

MORE FROM Austin Sarat

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

MORE FROM Dennis Aftergut

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Commentary Donald Trump Elections History Impeachment Joe Biden Kevin Mccarthy Republicans