A panel of legal scholars on Wednesday debated the legal standards for impeaching Internal Revenue Service Commissioner John Koskinen, dividing over whether the framers of the Constitution meant to include gross incompetence as as reason for an ouster.
The experts, called to testify before the House Judiciary Committee, agreed that impeaching Koskinen, an executive branch official who is not a cabinet member, would set a precedent for Congress.
They locked horns on whether Congress should expand an accusation that until now has been used for judges, two presidents and, 140 years ag0, a secretary of war to include failure to comply with a congressional subpoena and lying to Congress — the charges House Republicans have leveled at Koskinen. Republicans claim that the tax collector, who came out of retirement in 2013 to take over the IRS during a scandal over the treatment of conservative groups, obstructed their investigation.
“If this committee believes that a witness came in and lied to it and obstructed its investigation, then that’s grounds for impeachment,” said George Washington University law professor Jonathan Turley, a frequent witness before House and Senate committees on constitutional issues.
“Was it intentional, deliberate indifference?” he asked. “What hangs in the balance is whether our framework of government works.”
Turley and Andrew McCarthy, a former federal prosecutor in the Southern District of New York, told the committee that impeachment would be a logical way to hold an administration official accountable for misconduct, a necessary check on executive power by a Congress that “has allowed its powers to atrophy,” Turley said.
The experts’ mark of approval emboldened committee Republicans, who are considering a resolution to impeach Koskinen for lying under oath and misleading Congress when he said he would hand over thousands of emails written and received by the central figure in the scandal, now-retired IRS official Lois Lerner.
It turns out that the IRS had destroyed the records. Koskinen took four months to tell this to Congress, which also is accusing him of failing to locate backups of the records. They eventually were found by the agency’s inspector general.
Committee Chairman Bob Goodlatte (R-Va.) said, “Volumes of information crucial to the investigation were destroyed. Subpoenas went unanswered. Testimony was misleading.”
The agency admitted to poor judgment and even mismanagement. Several investigations, most recently by the Justice Department, found no evidence of malicious or criminal behavior by agency employees, but rather poor judgment.
The IRS declined to comment on the proceedings.
The House Oversight and Government Reform Committee voted last week along party lines, with Republicans in favor, for a far less severe censure of Koskinen.
Oversight committee Democrats spoke to their own panel of constitutional law experts, who warned that a provision of the censure resolution that would force Koskinen to forfeit his pension would be an overreach of congressional power.
Censure has no guarantee of consideration on the House floor, and House and Senate leaders have not expressed enthusiasm for impeachment.
Nevertheless, the Judiciary panel spent two-and-a-half hours debating what the framers meant when they gave Congress the right to impeach and what rises to an offense against the state.
“We’re moving into uncharted waters here,” said Michael J. Gerhardt, a professor of constitutional law at University of North Carolina at Chapel Hill. “The House has never impeached a sub-Cabinet official. I would urge everyone here to take a deep breath and look at alternatives.”
Gerhardt said the “high crimes and misdemeanors” contained in the impeachment resolution that Oversight Committee Chairman Jason Chaffetz (R-Utah) introduced last fall most often involve corruption or treason, “political offenses against the state.”
Gross negligence or incompetence would “step onto a slippery slope the framers did not support as an impeachable offense,” Gerhardt said.
Rep. Jerrold Nadler (D-N.Y.), acting as the committee’s top Democrat, said, “You can make mistakes, you can even have bad judgment, but that doesn’t rise to an impeachable offense.”
Nadler and other Democrats said that Congress, with just weeks left until the summer and fall recesses, would have a massive investigation to take on without enough time to do it. Koskinen, for example, would be entitled to call his own witnesses to rebut the charges.