Here is the column:
When Congress returns next month, it has little alternative but to launch a long-discussed impeachment inquiry into President Joe Biden. For House Speaker Kevin McCarthy (R-Calif.), the case for an inquiry came from a most unlikely source: Attorney General Merrick Garland.
The debacle in the Hunter Biden investigation has left most objective legal analysts in disbelief, with one CNN analyst calling it an “unholy mess.”
Even before the collapse of a widely condemned “sweetheart deal” with Hunter, the investigation headed by U.S. Attorney David Weiss was a growing concern for many observers. In prior years, I wrote about Garland’s refusal to appoint a special counsel despite the obvious conflicts posed by the potential involvement of President Biden in his son’s alleged influence-peddling scandal. I also raised the problem of an investigation that remained ongoing for years as the statute of limitations expired on major potential crimes.
It turns out that the same concerns were being raised within the Weiss team. Two IRS whistleblowers recently confirmed that the expiration of potential tax felony crimes was raised with Weiss and the Department of Justice (DOJ). There reportedly was an agreement to extend that period, including on the violations tied to the most controversial alleged payments from sources in Ukraine and other countries. The two witnesses testified that the Justice Department instead allowed the statute of limitations to expire.
These two whistleblowers — and, more recently, a former FBI agent — said that the DOJ tipped off the Biden team on attempts to interview Hunter and to conduct searches. They describe an investigation that was anything but the “routine” matter described by congressional Democrats in seeking to block House investigations.
What followed has bordered on the burlesque. Weiss cut a deal with Hunter’s legal team that was widely derided. After years of investigation, he and the DOJ agreed to a couple of tax misdemeanors, a papered-over gun charge, and no risk of jail time for the president’s son. The deal disassembled in court after a few questions from the presiding judge about sweeping immunity language and other curious elements. When District Judge Maryellen Noreika asked the prosecutor if he had ever seen any agreement like this one, he replied “no.”
House Republicans had previously demanded that Weiss and his team answer questions about the investigation and the plea bargain. And an appearance before a House committee was planned when Garland suddenly preempted that by doing what many of us have demanded for years: He appointed a special counsel. To the amazement of many, though, he appointed the one prosecutor who should have been categorically excluded — David Weiss.
Section 600.3 of the DOJ’s code on special counsels requires an appointment from outside the Justice Department, for obvious reasons. While another prior special counsel, John Durham, also came from within the Justice Department, Durham was retiring from the department at the time of his appointment. Not only did Garland have to ignore his own regulations to appoint Weiss but he also had to ignore the main qualification: The appointed outside counsel should be someone with “a reputation for integrity and impartial decision-making.”
Weiss could well have a legitimate defense to Republican complaints that he ran a fixed investigation into Hunter or accusations that he made false statements to his own team. However, he clearly remains under suspicion by many people. That is reflected in an ABC News/Ipsos poll in which almost half of Americans lack trust that the DOJ will conduct the Hunter Biden investigation in a “fair and nonpartisan manner.”
In addition to this controversial appointment, Garland again refused to expressly extend the special counsel’s mandate to include influence-peddling allegations involving President Biden.
Even some liberal pundits are mystified by these moves and why Garland would not simply appoint someone in compliance with the regulations who could guarantee a new and full investigation.
So Weiss is now investigating crimes that continue to dwindle in number due to the long delays in prosecution. It is like waiting for winter to go goose hunting in Canada, long after the geese have flown South. Everyone just gets dressed up and fires aimlessly into an empty sky.
While Hunter still can be charged on the same meager grounds (and possibly the addition of a Foreign Agents Registration Act charge), the alleged fix remains in the Biden investigation.
Now, however, Congress will have a more difficult time getting answers out of Weiss because he can claim he is engaged in an ongoing special counsel investigation, and he can use the eventual special counsel report as much to defend his own actions as to detail any potential crimes.
At the same time, the Biden administration still is resisting the sharing of information with the House, including records held by the National Archives.
For months, I have discussed a potential impeachment of the president with Republican House members and have encouraged them not to repeat the abuses of House Democrats in the use of “snap impeachments” and the discarding of fact hearings in the House Judiciary Committee.
Garland, however, has effectively forced their hands.
While Garland seems incapable of imagining any crime involving the president, he has made a conclusive — if unintended — case for an impeachment inquiry.
With the investigative impediments created by the Weiss appointment and by Garland’s refusal to expressly extend the special counsel’s mandate to the allegations of Biden family influence-peddling, there is little choice but to commence an impeachment inquiry. The authority of the House is at its apex when carrying out its duties under the impeachment clause.
Whatever interest — or ability — remains to prosecute Hunter Biden, Congress has a separate duty to confirm any high crimes and misdemeanors committed by President Biden. Indeed, the Democrats themselves established precedent for carrying out retroactive impeachments for prior offices, including any which may have occurred when Biden was vice president.
With the current state of the Hunter Biden investigation and the baffling conduct of Attorney General Garland, there is no alternative for the House but to launch the impeachment inquiry.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.