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What Is Key to an Impeachment Inquiry – Truth or Punishment?

William L. Kovacs

May 2024

What Is Key to an Impeachment Inquiry – Truth or Punishment?

As part of the impeachment inquiry of President Biden, Congress should ask itself – What is more important to the United States – knowing the truth about President Biden’s alleged payments from our foreign adversaries or impeaching and convicting him? Politics and the lack of time will not allow Congress to have both.

Discovering the truth about the alleged Biden Family corruption will either establish that President Biden is innocent of all criminal allegations or alert the nation to how it has been compromised by his corruption. If impeachment is more important to Congress, there is not sufficient time for it to occur, and even if impeached, there will be no conviction in the Senate.

It should be clear to the two House committees that the Department of Justice (“DOJ”) will do whatever is necessary to obstruct their impeachment investigation into the Biden family corruption by refusing to produce the requested information or the needed witnesses.

The House must recognize reality – he who controls the DOJ determines the rule of law in this country. Biden will not ever stand trial in the Senate. The Senate established that fact with the Mayorkas impeachment, which it dismissed without hearing a scintilla of evidence. Moreover, its actions clarify the scope of power conferred on the Senate as “the sole power to try all impeachments.” The Senate’s dismissal of the Mayorkas impeachment changed the impeachment process forever. It was the only time in 225 years and twenty-one impeachments that the Senate refused to hear evidence. The three prior dismissals all occurred due to a resignation from office or expulsion from Congress.

The Democrats’ actions de facto eliminated Congress’s impeachment power from the Constitution. As long as the president’s party controls at least one House of Congress, the president, his appointees, friends, criminal syndicates, illegal aliens, and cartel members are free to break any law and remain in control of the nation. The Constitution is only as viable as those who have the power to determine its meaning and application.
If the House seeks punishment against Biden and the family syndicate, Congress, as the legislative branch, can’t impose it. Even if Congress exposes the corruption, DOJ will not prosecute it, as evidenced by the Horowitz and Durham reports of government corruption.

A congressional obsession with impeaching and convicting Biden will be a futile gesture that obstructs the pathway to securing the truth about his financial dealings. Fortunately, Congress still has time to discover the truth. The only leverage the House has to obtain the truth from its inquiry is to grant “Use Immunity” to Hunter and James Biden, their business associates, and the past and present leadership of the DOJ and FBI.

“Use Immunity means that, while the government may prosecute witness for offences related to subject matter of witness’ testimony, the witness’ testimony itself and any fruits there from, may not be used against witness in any criminal case except prosecution for perjury arising out of testimony.” Use Immunity protects the Fifth Amendment rights of the witness while allowing Congress to secure the testimony needed for its investigation.

If the House wants the truth, the witnesses with the information must testify, and as long as a witness can assert a Fifth Amendment right, there will be no testimony about what happened. Discovering evidence within these confines can only be achieved by granting Use Immunity.

Congress has the sole discretion to grant Use Immunity. For separation of powers principles, Use Immunity is not self-executing by Congress as it is traditionally an executive function. Upon a majority vote of its members, the House must apply to the federal district court for an order to compel the testimony. 28 USC sec 6005 mandates the court issue the order. Moreover, neither the DOJ nor the courts can interfere with the grant of it. Section 6005 authorizes either House of Congress to grant Use Immunity once an individual refuses to give testimony or provide other information based on his privilege against self-incrimination.

The district court must grant the congressional request if it finds:

1. In the case of a proceeding before either House of Congress, the immunity request was approved by a majority vote of the members present or
2. In the case of a proceeding before a committee, the request for such an order was approved by two-thirds of the members of the Committee and
3. That the Attorney General was given ten days’ notice. The Attorney General can request another twenty days to “insulate from the immunity grant any incriminating data already in his files prior to the witness’s testimony.”

Use Immunity was used extensively by the Democrats in Watergate and the Iran-Contra Affair. Once one House of Congress meets the conditions of the statute, granting Use Immunity is mandatory. “The court shall” issue the order. Chief Judge Sirica [in the Watergate trials] held section 6005 casts the court’s role as ministerial, and the Attorney General is deprived of his normal discretion concerning the granting of Immunity.

Once receiving Use Immunity, the witnesses can testify free of prosecution for any testimony of their criminal activity given to Congress. A refusal to answer subjects the witness to Contempt of Congress and could result in imprisonment.

Historically, Congress is reluctant to grant use immunity since it usually results in an inability of the DOJ to prosecute criminals. DOJ describes the dilemma:

Congress must now choose between granting Immunity to exercise its oversight and investigative functions or forgoing a grant of Immunity to allow the prosecution of key witnesses.

However, Congress is not facing such a dilemma in the Biden impeachment proceedings. The DOJ has a long record of refusing to prosecute any of the involved parties, including identified lawbreakers in the Horowitz and Durham reports.

In the Watergate trials, a corrupt DOJ refused to cooperate with Congress like today. The US Senate sought to grant Use Immunity to witnesses. DOJ asserted it, and the court has the power to block the grant of Immunity. Chief Judge Sirica upheld the Senate’s power, writing:

Immunity is the fixed price that the government must pay to obtain certain kinds of information, and only the government [Congress] can determine how much information it wants to ‘buy’ in light of the fixed price.

Judge Sirica concluded: [There is a] power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. Quoting President Wilson, he notes the informing function of Congress should be preferred even to its legislative function.

The American people deserve the truth about corruption in their government. The House of Representatives has the power to obtain the truth but only by relinquishing its illusionary right to impeach and convict the president of “High Crimes and misdemeanors.” What is more critical to the nation, truth or the false hope of punishment by removal from office? After all the facts come out, Biden will either be exonerated or punished by history, the most painful of all punishments for a president.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the US Chamber of Commerce and chief counsel to a congressional committee. Bill can be contacted at [email protected]