A Department of Justice (DOJ) legal memorandum written during the Trump administration may strike a blow to House Republicans’ efforts to compel President Joe Biden and the White House to turn over documents for their recently announced impeachment inquiry. This is because of the way in which Speaker of the House Kevin McCarthy (R-California) began the process without a full vote of the congressional chamber.
Political observers have described the memo as a “literal Trump card” that could foil or disrupt efforts to impeach Biden, which former President Donald Trump is demanding of Republican lawmakers in the run-up to the 2024 election.
Giving in to demands from the far right elements within the House Republican caucus (some of whom have readily admitted that impeachment is about hurting Biden politically to help Trump’s chances against him in next year’s presidential race), McCarthy on Tuesday directed three House committees to launch an impeachment inquiry against Biden over questionable claims that he engaged in shady business dealings with his son, Hunter Biden, and others while he was vice president.
Several observers have noted that there is no concrete evidence linking the president to any illegal or corrupt actions, and unlike other impeachment inquiries that have been started in the past, the public hasn’t been given any direct proof of what Republicans allege Biden has done.
While Trump and his loyalists have insisted for weeks that McCarthy should start the inquiry, it was uncertain whether the Speaker had the votes to pass a resolution on it within the full House. There is no statutory or constitutional requirement that an impeachment inquiry be started by a full vote, but a memo from the Trump-era DOJ officials suggests that the executive branch doesn’t have to abide by requests from the House for documents or other evidence without such a vote.
“The House must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony,” the memo, written by former DOJ lawyer Steven Engel, said.
The memo was written in response to impeachment charges against Trump from the Democratic-run House in late 2019, which included allegations that Trump and his White House had obstructed their impeachment inquiry by refusing to provide documents to them.
At the time, Speaker of the House Nancy Pelosi (D-California) had authorized an impeachment inquiry in the fall of 2019, and committees in the House had demanded that documents from the White House be turned over. A full vote by the chamber was held a few weeks later.
The memo was used during the Senate trial of Trump’s first impeachment to defend the former president against those obstruction charges. As the Biden administration has not altered the legal opinion, the contents of the memo are still the binding action that the DOJ would take, should Biden be requested by House Republicans to turn over documents without a full vote.
The White House could use the memo in two different ways. First, it could cite it to justify refusing to cooperate with the inquiry until such time that a full House vote happens. And second, it could also use the memo later on, during an impeachment trial (if the House eventually votes to impeach Biden), to explain why documents weren’t initially shared, if Republicans seek to charge Biden with obstruction as part of their articles of impeachment.
The White House has defended itself against claims of impropriety that Republicans have made against Biden in their calls for impeachment. In response to the announcement from McCarthy on Tuesday, the Biden administration released a 14-page document that lists the many claims Republicans have made alleging misconduct by the president, refuting them one by one.
“At every turn, [Republicans’] allegations about wrongdoing by Joe Biden have been debunked and refuted by their own witnesses’ testimony, the financial records they have obtained, independent public reporting, and more,” the document states. “It’s clear that this ‘investigation’ is all politics and no evidence.”