AMAC EXCLUSIVE
With all eyes turning to the presidential election and House Republicans struggling to stay united with a historically slim majority, an impeachment of President Joe Biden before November now seems like a remote possibility. But Republican leaders have hinted at a possible criminal referral to the Department of Justice as another avenue to hold Biden accountable for his influence peddling scheme.
Late last month, House Oversight Committee Chairman James Comer (R-KY) indicated that criminal referrals stemming from his investigation into the Biden family could come “within weeks.” President Biden and his son, Hunter, have both refused to appear before the committee, hampering Comer’s efforts to get more answers about the Biden family’s shady business dealings.
While Biden’s DOJ would almost certainly not act on any criminal referral of the president, a referral would lay the groundwork for potential future charges against Biden by potentially providing the DOJ with a mountain of evidence to prosecute him and any of his family members implicated in his apparent corruption.
When Congress discovers potential crimes during an investigation, committees or individual members can make a criminal referral to the Department of Justice. A criminal referral is a non-binding recommendation that the DOJ investigate and potentially indict the person or people in the referral.
While it is an informal process, the referral should include the allegations, the specific basis for the allegations, and an articulation of the evidence of the possible crime. Typically, but not always, the entire House must still approve criminal referrals. While Republicans do not currently appear to have unified support behind impeachment, a criminal referral could stand a better chance of passing.
Since the 1920s, Congress has issued criminal referrals for 183 individuals or organizations, with 37 percent of those referrals resulting in indictments. Notably, in July 2016, the House Judiciary and Oversight Committees issued a criminal referral for presidential candidate Hillary Clinton for perjury and false statements.
Regarding the Biden family’s corruption, Jonathan Turley, a professor at George Washington University Law School, argued in his congressional testimony on the issue that President Biden’s awareness of “money going to his family in exchange for influence or access” is enough evidence to recommend a bribery charge to the DOJ.
According to Turley, “under 18 U.S. Code § 201, it is bribery when being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the official duty of such official or person.”
Importantly, this statute covers accepting anything of value “personally or for any other person or entity.” Even if President Biden did not personally accept money from outside sources as bribes, his awareness of the benefits received by Hunter and Hunter’s associates in exchange for influence or access to the elder Biden is enough to warrant further investigation by federal law enforcement. “To say that millions of dollars going to his family would not be considered a benefit to Joe Biden is legally and logically absurd,” Turley emphasized.
While Turley did argue that House Republicans have not yet gathered the necessary evidence for impeachment, he made clear that “the record has developed to the point that the House needs to answer troubling questions surrounding the President.”
One way to answer these questions would be for the House to use what they now know from the investigation as the evidentiary basis for a criminal referral. DOJ would then be able to use its expanded investigatory powers to obtain more information about the Biden family business.
Notably, the Department of Justice has brought charges against two Democrat Congressman for corruption in just the past year. Last September, the DOJ brought charges against Senator Bob Menendez (D-NJ) and his wife for bribery, and just this past week the DOJ released an indictment against Representative Henry Cuellar (D-TX) and his wife for accepting approximately $600,000 in bribes from two foreign entities, an oil and gas company owned by the Government of Azerbaijan and a Mexico City bank.
The evidence unearthed so far against Joe Biden seems equally as damning as that against Menendez and Cuellar. At the very least, it warrants further investigation.
It’s no secret that public confidence in the entire American legal system is in the midst of a steep decline. A June 2023 poll showed that just under half of Americans, 49 percent, say they have “little or no confidence” in the DOJ.
Part of this distrust and lack of confidence comes from the political motivation in bringing charges against President Trump, but not against Biden. The DOJ listening to and acting on a criminal referral from Congress about President Biden’s actions could help show impartiality and boost the American people’s perception of the institution.
The House Judiciary has more than enough evidence for the referral. It is time to take action.
Katharine “Katie” Sullivan was an Acting Assistant Attorney General and a senior advisor to the White House Domestic Policy Council under President Trump. She previously served 11 years as a state trial court judge in Colorado.
