Republicans are weighing criminal referrals to the Justice Department instead of articles of impeachment against President Biden, a move that would provide an off-ramp for a struggling investigation but force the GOP to demonstrate the president or his family broke the law.

The GOP probe has been facing growing skepticism within the party, with some Republican lawmakers voicing concerns that they have yet to see investigators answer the nagging question of whether there was illegal conduct. Others have expressed doubts the matter will ever come to a vote given that key GOP members remain unconvinced.

Criminal referrals could help avoid an embarrassment on the House floor — like when the GOP lost an initial vote to impeach Homeland Security Secretary Alejandro Mayorkas.

But the strategy would require the GOP to expound in detail what crimes they believe were committed by the Biden family, along with citing specific statutes and outlining evidence.

It’s a task that might be more difficult than impeachment itself, a problem Democrats are zeroing in on.

“With the impeachment bus running on empty, our GOP colleagues now are apparently preparing to save face by ending the impeachment farce with criminal referrals. But criminal referrals require evidence of crimes,” Rep. Jamie Raskin (Md.), the top Democrat on the Oversight and Accountability Committee, said last week.

House Oversight Chair James Comer (R-Ky.) has hinted at the off-ramp in recent week, calling criminal referrals the “best path” in a recent interview with Newsmax. 

“It’s always been about holding them accountable,” Comer said.

“The way that we’re going to do [it] has always been the best route for accountability. We’ve proven the wrongdoing, now it’s time to hold people accountable. That’s what we’re gonna do.”

A skeptical audience

Criminal referrals would require making a case to what could be an even more skeptical audience than House Republicans — a team of seasoned attorneys who would weigh whether such charges could be proven in court.

It’s also not entirely clear who Republicans would refer, though the possibilities range from President Biden himself to family members and associates of his son Hunter Biden.

“They’ve already got what they asked for, which was a special counsel on that,” Raskin said of the investigation into Hunter Biden that has resulted in multiple charges in two states.

“And if they had what they thought were felony offenses against the president of the United States, why wouldn’t they impeach him?”

“I think it’s an attempt to find a soft landing for them when the whole investigation has already crashed,” he added.

Many of those eyed by the GOP for charges have already been prosecuted by the Justice Department, including Hunter Biden on numerous charges related to his failure to pay taxes, as well as gun charges.

And several of his former associates have already faced legal scrutiny. His former business partner Devon Archer was sentenced to just over a year in prison on charges related to defrauding a tribe. Archer’s business partner in the effort, Jason Galanis, is already serving time. 

“They’ve committed a lot of financial crimes, a lot of crimes, and they need to be held accountable,” Comer said. “Hunter Biden and Jim Biden have been investigated by numerous government agencies for decades and nothing happens but Galanis and Devon Archer are both going to prison.”

While Comer described Hunter Biden as an equal partner in the venture, his attorneys said he was not involved in the scam that led to sentences for Archer and Galanis, though his name was used by the two without his knowledge in brokering the deal. Hunter Biden also said in his deposition that he only briefly met Galanis a decade ago.

“It always happens that way. Someone has to pay the price. It’s always the Biden associate and never the Biden,” Comer said.

But Democrats argued the Justice Department has already thoroughly reviewed the conduct of Hunter Biden and his business associates.

“If they refer Hunter Biden to the Department of Justice for any of the underlying conduct it is entirely duplicative because the Department of Justice did a five-year financial colonoscopy of Hunter Biden to determine whether he violated FARA, whether he did anything wrong or illegal relating to his financial businesses overseas,” Rep. Dan Goldman (D-N.Y.), a former federal prosecutor, said in referring to the Foreign Agents Registration Act.

“Ultimately, they concluded that they could only charge him with tax fraud as it relates to his financial conduct. And so to the extent that they would refer any of the underlying conduct, it is purely, purely political, because the Department of Justice has already done that investigation,” Goldman said.

Republican leaders have stressed that they have not fully committed to any one plan.

“We’re still looking at all options and what makes sense,” House Judiciary Chair Jim Jordan (R-Ohio) told The Hill. 

Approaching it cautiously

The idea hasn’t been wholeheartedly endorsed by all who have otherwise championed the impeachment investigation.

Rep. Dan Bishop (R-N.C.), a Judiciary member, stressed the need to approach the matter cautiously.

“Criminal referrals are something that require careful analysis and are not done whimsically or on sort of an extemporaneous, spur of the moment kind of approach,” he told The Hill.

“But they are an important part of oversight — even if you take the historic cases in which criminal referrals have not been acted upon by a Justice Department that is on the same partisan side as some of those who might be referred — because it lays out an historical record. And so I think there are a number of situations that might merit that consideration. At this point in time it’s premature to say anything else.”

Democrats argue Republicans have a “show your work” problem.

“If they get into detail about why they believe that a referral is necessary, they will undermine themselves because there is no evidence,” Goldman said.

“So the only way that they will be able to make a criminal referral is if they do a very generalized referral because once they have to lay out any of the evidence, it will crumble on itself.”

Rep. Glenn Ivey (D-Md.), a former federal prosecutor and member of the Judiciary Committee, said the move would stall due to a lack of evidence for the Justice Department to advance.

“It’s a dead end for them,” he said, adding that the Justice Department would reject it “relatively quickly.”

“I would think the Department of Justice would respond but, I mean, it would be just to dismiss it on its face, because they don’t have anything at all to send over.”

Other Republicans have expressed hesitation about doing the sort of generalized referral Goldman referred to.

“I wouldn’t support general criminal referrals,” Rep. Kelly Armstrong (R-N.D.), who sponsored the legislation to formally kick off the impeachment inquiry, adding that he believes some of the behavior in question should have required registration as a foreign agent and that, in some cases, “criminal referrals are warranted.” 

He also noted that Comer and Jordan are racing a political clock, needing to wrap their work and issue a report on their findings ahead of the election.

“I think all of this stuff is laced with different pitfalls. That’s why you do the report. You make a decision and you stand by it,” he said.

But there are some ways Republicans may be looking beyond the election, especially if their recommendations may be viewed differently by the Justice Department of a potential second Trump administration.

“It’s all part of teeing it up to reopen Hunter’s investigation,” Goldman said, suggesting future prosecution was the rationale behind his lawyers seeking broad criminal immunity under a plea deal that collapsed under judicial review.

“And that is the only reason why that plea agreement fell apart is that Hunter Biden, understandably, insisted on protection, not only from the prosecutors who were doing his case but in the future from Donald Trump, who has demonstrated a willingness to use the Department of Justice as his own investigator and to go after his own political enemies.”

Raskin said referrals aren’t needed because former President Trump has expressed a willingness to politicize the Justice Department if he’s reelected.

“The argument that’s being made for a criminal referral strategy is that if and when — god forbid, a million times — that Donald Trump were to take over the White House again, that at that point, they could order prosecutions of people,” Raskin said.

“Of course, Donald Trump has already said he’s going to weaponize and politicize the Department of Justice to go after his enemies and so it would be consistent with that. He doesn’t need referrals from this committee to do it. It’s much more of a face-saving measure. I mean, they’ve been on this 15-month wild goose chase, and they have found no geese.”