Why McCarthy launched an impeachment inquiry without a vote — and why he can

Speaker Kevin McCarthy (R-Calif.) moved to launch an official impeachment inquiry into President Biden on Tuesday — without a vote on the House floor. 

It's perfectly legal and constitutional for McCarthy to start an inquiry without a vote. But it's a significant reversal for the GOP Speaker, who just 11 days ago said he would not open an official probe without a floor vote. 

It also leaves him open to cries of hypocrisy: McCarthy criticized former Speaker Nancy Pelosi (D-Calif.) for kicking off an impeachment inquiry of former President Trump in the same manner in 2019. Pelosi announced an inquiry on Sept. 24, but the House did not vote on the matter until Oct. 31.

Asked Tuesday about whether he was being hypocritical, McCarthy referred back to Pelosi: “I’m not, because she changed the precedent.”

“I warned her not to do it that way in the process. And that's what she did, that’s what we did,” McCarthy said.

There are advantages to the strategy for McCarthy. 

Moving forward on an inquiry without a vote allows swift action on a priority for conservatives who have been pressuring the House Speaker. McCarthy’s decision also protects moderates — particularly those who represent districts President Biden won in 2020 — from having to take a tough vote. 

But nothing that McCarthy said on Tuesday prevents the House from moving forward on an impeachment inquiry vote in the future, which is still a possibility, GOP aides told The Hill.

“The precedent allows the speaker to call up an impeachment inquiry. Speaker McCarthy’s announcement this morning constitutes the formal opening of an impeachment inquiry but importantly does not preclude a vote from occurring in the future,” a senior House aide said. 

“This phase of an impeachment inquiry provides an opportunity for the House to formally outline the scope of its investigation, provides notice to the accused, and time for further conversations with members,” the aide said.

The impeachment inquiry into Biden centers on his family’s foreign business dealings and whether a tax crimes investigation into his son, Hunter Biden, was improperly slow-walked. 

Republicans have so far not proven that Biden personally financially benefited from or made policy decisions based on his family’s business dealings, but have pointed to numerous conflict of interest issues and accused the president of being dishonest about how much he talked to his son about his business.

Just a week and a half before unilaterally launching an inquiry, McCarthy told Breitbart News that if the House moved forward on an impeachment probe, “it would occur through a vote on the floor of the People’s House and not through a declaration by one person.”

The remarks came after a CNN report said that Republicans were discussing whether they could open an inquiry without a full House vote.

A reporter told McCarthy he was “confused” given the Speaker’s statement 11 days prior to Breitbart. McCarthy responded: “Sorry you're confused. Were you confused when Nancy Pelosi did it?”

White House spokesman for oversight and investigations Ian Sams accused McCarthy of flip-flipping on the matter.

“House Republicans have been investigating the President for 9 months, and they’ve turned up no evidence of wrongdoing His own GOP members have said so He vowed to hold a vote to open impeachment, now he flip flopped because he doesn’t have support Extreme politics at its worst,” Sams wrote on X on Tuesday. 

McCarthy pushed back on queries about whether the move was designed to avoid losing a battle to ignite an impeachment on the House floor, saying he “pretty much” has the votes to pass an impeachment inquiry. 

A number of moderates, however, have expressed hesitation with launching an inquiry, and McCarthy could only afford to lose a handful of Republican votes in the slim House GOP majority.

Rep. Don Bacon (R-Neb.), who represents a district Biden won in 2020, said he recommended that the House does not launch an impeachment inquiry.

“I think there’s corruption there, but to do an inquiry you should have some kind of direct evidence towards the president. I think that we’re close, so I’m not opposed to never doing it, but I just think we should set a high bar,” he added.

He also said he would have liked for McCarthy to hold a vote on the matter.

“I would have recommended to do the vote,” Bacon added. “I just think it’s right. But, you know, let’s be candid, Pelosi started this, she set a new… precedent.”

“I don’t like doing just because Pelosi did it we did it,” Bacon added at a separate point. “Pelosi set a low bar.”

Rep. Ken Buck (R-Colo.) has also said that he does not think there is enough evidence to move forward on impeachment, but that it “really doesn't matter” if he is supportive of an inquiry or not “because the three committees are going to continue to do their work just as they had in the past.”

“I still want to see the evidence. But the impeachment inquiry to me was a distraction from the spending, the appropriations processes,” Buck said. “I think that now we are focused on what we should be focused on, the appropriations process.”

Dave Rapallo, a law professor at Georgetown University who worked on the House staff that handled Trump’s first impeachment, said while the full House has to vote on an article of impeachment to refer the matter to the Senate, there are no guidelines for how the investigation must originate.

“There's no provision in the Constitution that discusses how to initiate an impeachment. In the past, there has been an occasion where the House votes on a resolution to launch an impeachment but that's not a requirement. And that's, of course, that's what Speaker Pelosi did in the first impeachment was there was no resolution” kicking off an inquiry, he said. 

“Republicans were apoplectic about it.”

At the time, McCarthy penned a letter to Pelosi calling on her to suspend the inquiry.

“Unfortunately, you have given no clear indication as to how your impeachment inquiry will proceed — including whether key historical precedents or basic standards of due process will be observed,” he wrote in 2019.

And on Twitter he said it was a fact that “Speaker Pelosi can't decide on impeachment unilaterally. It requires a full vote of the House of Representatives.”

Former President Trump, via then-White House counsel Pat Cipollone, argued he shouldn’t have to meet the demands of the inquiry because Democrats never brought the matter before the full House.

“Your inquiry is constitutionally invalid and a violation of due process. In the history of our Nation, the House of Representatives has never attempted to launch an impeachment inquiry against the President without a majority of the House taking political accountability for that decision by voting to authorize such a dramatic constitutional step,” Cipollone wrote.

And then-House Judiciary ranking member Doug Collins (R-Ga.) warned the House would be in a “perpetual state of impeachment” without a vote.

“Without an explicit authorization from the full House, the court has no determinative measure of when an official impeachment proceeding has begun and when the committee is merely exercising its normal oversight powers,” Collins wrote in an amicus brief encouraging a judge to block congressional access to materials gathered by special counsel Robert Mueller.

Rapallo said none of those arguments carry any legal weight, as a vote is not required under the constitution or House rules.

“A resolution isn't technically necessary for them to be able to use those powers. As far as why he didn't have the vote that he said he was going to have, you know, it could very well be that he doesn't have the votes,” Rapallo said.

“'I’m less concerned about the absence of a vote for the impeachment inquiry and more concerned about the absence of any evidence.” 

One of the purposes of opening an impeachment inquiry, Republicans say, is to add legal weight to their requests for information from the Biden administration.

“I think the courts are much more willing to look at it like, ‘Oh, the House is now in a — in a different mode, focused on a constitutional duty that's exclusive to the House of Representatives — an impeachment inquiry,” House Judiciary Committee Chairman Jim Jordan (R-Ohio) said. “I think the courts would say like, okay, give them the information.”

Asked if the same legal weight exists through just the word of the Speaker rather than through a full House vote, Jordan said: “I think there's that potential.”

“And I don't think the speaker said he was opposed to having a vote. We may have at some point,” Jordan said. 

Some Republicans would have preferred a vote, but they are not objecting to McCarthy’s unilateral declaration.

“I think there ought to be a vote, but I'm prepared to get on with it,” said Rep. Dan Bishop (R-N.C.), a member of the House Judiciary Committee. 

Caroline Vakil contributed.