Opinion: Smirnov indictment pushes GOP impeachment probe of Biden off the edge

Editor’s Note: Dennis Aftergut, a former federal prosecutor, is currently counsel to Lawyers Defending American Democracy, a nonpartisan organization dedicated to preserving the rule of law. The views expressed here are his own. Read more opinion at CNN.

On Thursday, the Justice Department indicted Alexander Smirnov, a former FBI informant, for lying about President Joe Biden and his son Hunter Biden’s involvement in negotiations with the Ukrainian energy company Burisma Holdings. Smirnov is a central witness in the House Republicans’ Biden impeachment inquiry, which was already circling the drain as committee leaders have persisted in pursuing baseless allegations for political gain.

According to the indictment, Smirnov lied to the FBI by claiming that officials at Burisma, where Hunter Biden served on the board years ago, bribed then-Vice President Biden and his son so the vice president would interfere with a criminal investigation into the company. Smirnov now faces charges for making false statements to the FBI and creating false records.

Smirnov’s testimony has been the “heart” of House Oversight Committee Republicans’ stumbling “investigation” into impeaching President Biden. News of Smirnov’s indictment had Oversight Committee Chair James Comer of Kentucky beating a strategic retreat: “The impeachment inquiry,” he said on Thursday, “is not reliant on the FBI’s [interview of Smirnov]. It is based on a large record of evidence.”

That’s to be expected from politicians trying to salvage an investigation whose key witness has been exposed. With Smirnov’s indictment for fabricating claims, the air is out of the House inquiry’s tires. For those in the fact-based world, the oversight committee’s impeachment car, driven by Comer, is stuck on the edge of a cliff with two wheels hanging in thin air.

The Smirnov episode is Exhibit A in what happens when politicians grinding partisan axes make serious public charges without evidence against elected officials. That shameless behavior erodes citizens’ precious trust in government.

Prosecutors learn early that, in white-collar crimes, you’d better have indisputable documents or witnesses whose testimony is thoroughly corroborated before seeking an indictment. Otherwise, you can get seriously burned in the backfire.

As Hannah Arendt, the dean of 20th century political theorists, wrote in 1971 about years of government lies revealed in the Pentagon Papers amidst the Vietnam War, “There always comes the point beyond which lying becomes counterproductive.”

Politicians like Comer and GOP Ohio Rep. Jim Jordan, chairman of the House Judiciary Committee, could learn something from Arendt and from capable prosecutors about tossing aside facts and truth. Unfortunately, the MAGA committee chairs seem to have neither time nor interest in thought, care, competence or real evidence. All that seems to matter to them is repeating the charges enough times for them to sink into the public consciousness.

In 2016, there was no there there with House Republicans’ Benghazi investigation, but the smear looked like it had an adverse effect on former Secretary of State Hillary Clinton’s presidential campaign. So Republicans have apparently decided, “Let’s do it again.”

But don’t expect it to work this time. The very smart Democrats now on the House Oversight Committee learned from experience and are onto Comer’s political stunts. His claims have been called out by New York Rep. Dan Goldman, a former prosecutor who worked on the first impeachment of former President Donald Trump, and ranking member Rep. Jamie Raskin of Maryland, a constitutional scholar who served on the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

As Yale professor Timothy Snyder, the eminent historian of 20th century totalitarianism, has written, “Students of democracy have argued since ancient times … that the truth matters, and that truth needs defenses.” We are lucky to have capable defenders of truth whose counter-punches have been stronger than Comer’s feckless jabs. They don’t carry the power of reliable facts.

With Smirnov, Comer has led with his jaw. When you are dealing with a shaky witness whose testimony is the key to your fight plan, you need to muscle up with corroboration. Comer has none.

Indeed, Comer and Jordan have overhyped Smirnov’s testimony so many times, according to the progressive watchdog Congressional Integrity Project, that it’s hard to keep count. To cite just one example, last June, Comer told Fox News’ Sean Hannity, “This is one of the highest paid, most respected, most trusted, most effective human informants. So what we learned is what the whistleblowers told Sen. Grassley all along. The FBI never investigated this.”

That last claim is yet another falsehood. This whole investigation into Burisma goes back five years. In early 2020, Rudy Giuliani, Trump’s disgraced lawyer who was trying to dig up dirt on Hunter’s father, handed documents over to Trump administration Attorney General Bill Barr. According to CNN reporting, Barr told reporters at the time, “‘We can’t take anything we receive from Ukraine at face value.’ Former Pittsburgh US Attorney Scott Brady oversaw the FBI investigation of the Giuliani claims. The 1023 document [memorializing Smirnov’s interview] demanded by Comer is among the products of that investigation. … The FBI and prosecutors who reviewed the information couldn’t corroborate the claims.”

There’s the rub. And Comer’s face plant by relying on Smirnov’s alleged lies is just the latest in a long string of leaning on witnesses who have provided no evidence of wrongdoing by President Biden. They include the president’s bookkeeper, Hunter Biden’s business associates, his art dealer and a host of others who’ve said that President Biden is a loving father but was not involved in his son’s business deals. Comer seems to have gone to the ends of the Earth to find dirt on the president. But the congressman has ended up with an empty dustbin.

Impeachment is the most serious non-criminal charge that Congress can bring against a federal official. It is no place to be inflating allegations and to be relying on witnesses whose testimony is not corroborated. Doing so drains public confidence in impeachment as a guardrail on executive abuses of power. Wild charges without basis in reliable evidence insult fact and truth, the foundations of democracy.

New York University professor Ruth Ben-Ghiat put it this way in her seminal book “Strong Men”: “The decay of truth and democratic dissolution proceed hand in hand.” Snyder makes the same point: “Once factual truth is no defense in politics, all that remains is spectacle and force.”

From Comer and Jordan, we’ve seen plenty of spectacle but an absence of light. These point men for Trump and truthlessness are dangers to democracy.

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