Signals from the GOP that it plans to put bribery allegations front and center in its impeachment probe of President Biden have renewed questions over how Republicans can prove their most disputed claim.
In making their case for the impeachment inquiry approved by the full House last week, GOP leaders stressed their commitment to investigating one of the few crimes spelled out as an impeachable offense in the Constitution.
But it’s a pathway that also comes with pitfalls, and that adds pressure on the GOP to back allegations that have been swirling for years and have been scrutinized and debunked by fact checkers.
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“The impeachable offense is — I think, the key thing is in Burisma,” House Judiciary Chair Jim Jordan (R-Ohio) told reporters in a recent briefing, referring to Hunter Biden’s work for the Ukrainian energy company.
While a House impeachment inquiry is not a court of law, any formal resolution to boot President Biden from office would ignite a study of whether he violated federal bribery statutes that were narrowed in a 2016 Supreme Court decision.
Republicans have alleged that then-Vice President Biden pushed to topple Ukrainian prosecutor Viktor Shokin in an effort to help Burisma, where Hunter Biden served on the board. But the prosecutor wasn’t investigating Burisma at the time, and the effort to withhold aid for his ouster had bipartisan backing in the U.S. as well as from the international community amid criticism Shokin wasn’t tackling corruption.
The bribery allegations stem from a tip to the FBI from a trusted confidential informant who relayed a conversation in which Burisma owner Mykola Zlochevsky bragged about paying both President Biden and his son — details the bureau investigated but were unable to corroborate.
Rep. Kelly Armstrong (R-N.D.), who sponsored the impeachment inquiry resolution, acknowledged the hurdle of backing the bribery allegations but said the GOP should be able to make its case using the totality of the evidence it has collected.
“The political problem we have is that politically, it would be very nice if you had what everybody calls the smoking gun. The reality is, in a lot of these large-scale cases, there never is. There’s a totality of evidence and a totality of circumstances that says there is no rational explanation for all of it,” Armstrong told The Hill.
But legal experts who spoke with The Hill said that would not fly in court, where prosecutors would have to show a quid pro quo — a term popularized during the first impeachment of former President Trump after he threatened to withhold aid from Ukraine in an effort to secure dirt on Biden.
Ankush Khardori, a former federal prosecutor, said in court that attorneys would need to show evidence of a bribe and tie it to an official act of government power.
It’s not something that has to be documented in writing, he said, but prosecutors would need to hear from a witness to the bribe or perhaps even the person that paid the bribe themselves, should they be cooperating.
“You need some evidence of the actual agreement, and that can’t entirely be inferred from circumstantial evidence, or you’re going to be [in] tricky territory. And you need an official act, which is a legal question,” Khadori said. The definition of what constitutes an “official act” was narrowed as the Supreme Court weighed the case of former Virginia Gov. Bob McDonnell (R).
“It’s not sufficient in a bribery prosecution — again I’m talking about an actual criminal case — to just say here are a bunch of benefits that go to the defendant — things of value — and here are a bunch of things that the defendant did. You have to prove that they were done in exchange for one another,” he said.
Impeachments are political exercises at heart and don’t have the same burdens of proof that are required in court.
Still, lawmakers often turn to court standards for guidance, as do those facing impeachment themselves — Trump’s attorneys argued during his first impeachment that he should not be removed from office because he had not committed a criminal offense.
Rep. Dan Bishop (R-N.C.), a lawyer vying to serve as his state’s attorney general next year, noted that while the Senate isn’t required to use judicial standards, they often frame how lawmakers approach the issue.
“The Constitution doesn’t specify the burden of proof in the Senate on … articles of impeachment. So it’s up to the senators to decide what test to apply. But even if you take the more ordinary criminal prosecution case, your obligation still is not to prove something beyond any doubt, it’s beyond a reasonable doubt,” he said.
“[Bribery] is the most evident wrong that someone in public office can undertake. The evidence that already exists is quite powerful that something in the neighborhood of bribery was going on,” Bishop added.
“I think there’s additional evidence to be developed that is likely to make that clearer one way or the other, and then you proceed to a conclusion.”
Republicans have had trouble underpinning the allegation of bribery.
They’ve zeroed in on overseas work by both President Biden’s brother James Biden and Hunter Biden.
But financial connections between the family are limited to two loan repayments James Biden made after borrowing money from his brother — checks for $200,000 and $40,000.
A series of three payments between Hunter Biden and his father also came after he cosigned a loan for a truck for his son.
Republicans have cast doubt on the checks between the president and his brother, arguing that there should be a formal agreement for the loan or that James Biden should have been charged interest. They’ve also called on President Biden to demonstrate he loaned his brother money, despite records on file with the House Oversight Committee showing a wire transfer from an account associated with the president to that of his brother.
“Just because a check has ‘loan’ written at the bottom doesn’t mean it’s a loan,” Bishop said.
But Dave Rapallo, a former staff director for the House Oversight Committee and White House lawyer under the Obama administration, said even outside a courtroom setting, the GOP has yet to connect the dots and spell out wrongdoing by Biden.
“It’s not that circumstantial evidence is never useful — it can be. But right now, even their circumstantial evidence doesn’t show any crime by Joe Biden … If you lay out all this stuff about Hunter Biden, that still doesn’t get to Joe. I don’t understand how they’re going to make the leap,” he said.
“I don’t know if I’d call it an obligation, but to be effective, or to be convincing or to be compelling, they would need to have some evidence showing that Joe Biden took some action that was linked to any of this. And the whole thing about getting rid of the prosecutor just seems like such a stretch. Everybody in the Western world was calling for that guy to step down.”
Rep. Dan Goldman (D-N.Y.), who before being elected to the House worked as a staffer on Trump’s first impeachment, said Republican’s focus on the bigger picture in making their case ignores reams of evidence already collected by prior congressional investigations that spoke to numerous State Department employees. Together, they testified President Biden’s actions in Ukraine were taken to carry out a U.S. foreign policy stance — details backed up in State Department speeches and emails from that time period.
“It’s not even just that they don’t have evidence to support allegations of bribery. They have a lot of evidence that completely undermines and debunks those allegations,” Goldman told The Hill.
Indeed, some GOP members of the Senate have aired concerns over the evidence thus far, a group that includes Trump critics such as Sen. Mitt Romney (R-Utah) as well as Trump allies including Sen. Lindsey Graham (R-S.C.).
Armstrong, meanwhile, has said there is no doubt that Hunter Biden made a career through influence peddling and said it was improper for the Biden family to conduct business with adversaries such as China.
“It’s really easy to take each transaction individually and say, ‘Here’s the innocent explanation for that.’… [I] concede that some of those might actually be accurate. It’s really hard to have an innocent explanation for all of them,” Armstrong said.
“I think there’s far too many people that think we’re gonna find a video of Hunter Biden handing a bag of cash to Joe Biden with the Chinese Communist symbol on the paper bag. That’s not how these cases are worked. And that’s a political liability, but that doesn’t necessarily make it a proof or factual liability.”
This story was updated at 10:14 a.m.