GOP effort to oust IRS chief

How the GOP effort to oust IRS chief could backfire 

A bid to remove Koskinen would be unprecedented — and likely open new floodgates of partisan warfare. 

By Rachael Bade and Katy O’Donnell

For over a year, House conservatives have been clamoring to remove IRS Commissioner John Koskinen. But now that the impeachment process is moving forward, they face a delicate decision: Are they willing to toss 200-plus years of precedent to bring him down?

If House conservatives press ahead with an impeachment of the embattled tax chief, they’d be voting to remove a relatively low-level executive-branch leader for one of the most minor offenses in American history, several impeachment experts told Politico. That decision could, effectively, lower the threshold for congressional punishment of an executive-branch authority from here on out — and ensure a wave of new proceedings against government officials who have tangled with Congress in the past.

Impeachment has typically been used to punish treason, bribery and other “high crimes” in the top echelons of government. But Koskinen’s impeachment — based on an argument that he failed to comply with a congressional subpoena — would effectively expand that definition to include gross incompetence.

It’s never been done before.

“Nobody has ever been impeached for what we’ll call ‘gross negligence.’ … It has never, in our entire history, despite all the partisan difference, been the basis for impeachment in the past,” said North Carolina School of Law professor Michael Gerhardt, an impeachment expert who has testified before Congress on the matter.

And that, experts say, could touch off a rash of impeachment proceedings, as Hill investigators line up to take on other agency heads who have crossed them.

“Google everything with ‘gate’ at the end of it,” said Indiana University Maurer School of Law professor Charles Geyh, another impeachment expert, of the potential new threshold. “Would Hillary Clinton have been subject to impeachment in the aftermath of the attack? Why not? Add Benghazi to the pile.”

On the one hand, lowering the threshold would send a strong signal of discontent to the administration. Geyh noted that Congress would essentially “have a new weapon in the arsenal, which is not that you just have an Oversight hearing or insist the president have heads roll” but actually bring up impeachment.

But the move could backfire on Republicans if Democrats reclaim the House in some future election.

“This is where the politics of impeachment can come back and bite you in the butt,” Geyh continued. “I don’t want to suggest that the Democrats aren’t above these semantics. To the contrary: The next step in the process will be in the next Republican administration, the Democrats are going to say, ‘Hey, you remember what you did to this administration?’”

Some Democrats are already recognizing that two can play this game.

“You’re inviting the other party to reciprocate when it’s their turn; then it’s just tit-for-tat,” said Oversight panel Democrat Gerry Connolly (D-Va.). “It debases the process. This has been sparingly used since the founding of the republic … and for good reason. The bar is a very high bar, and it ought to be so we don’t resort to partisan office removal.”

Of course, an actual impeachment and conviction of Koskinen is highly unlikely. There’s a reason, experts say, the founders gave the Senate — where there are strong powers afforded to the minority — the power to convict on the House’s impeachment rulings. While the House needs only a majority, the Senate requires two-thirds to approve a conviction, and, consequently, bipartisan backing, to remove an official.

And while the Senate has typically followed the House’s lead, carrying out full impeachment trials 16 of the 19 times the House impeached an official, Senate Republicans have already expressed reservations about the merits of the conservatives’ case again Koskinen.

Still, an impeachment of Koskinen, even just in the House, would be rare. Almost all the officials the House has acted against were judges. And two — Andrew Johnson and Bill Clinton — were presidents. Only once, 140 years ago, in 1876, did the House move to impeach an agency chief, Secretary of War William Belknap, on charges of corruption.

Even then, Belknap was an official Cabinet member, unlike Koskinen, and Congress’ historical-research arm suggests that there’s still an open question about whether Congress can impeach someone below the Cabinet level.

“A question which precedent has not thus far addressed is whether Congress may impeach and remove subordinate, non-Cabinet level executive branch officials,” reads a Congressional Research Service study on impeachment from last October. “Historical precedent provides no examples of the impeachment power being used against lower-level executive officials.”

Experts think the House can easily get around that argument to make the case that Koskinen may be impeached, even though impeaching an executive below the presidential level is unusual.

But outside experts say the actual case against Koskinen is relatively weak — and troubling as a precedent. The House Judiciary Committee is slated to debate the case in the coming days.

Republicans have two key arguments against Koskinen: that he failed to comply with a subpoena and misled Congress. On Koskinen’s watch, lower-level IRS employees deleted backup tapes that were central to a congressional investigation about the way conservative groups were treated at the IRS — well after Congress asked for them.

While some conservatives suspect a coverup, the best case they can argue against him is that Koskinen did not do the responsible thing in ensuring all his people understood top-level instructions that they were supposed to preserve those files.

He also failed to notify Congress about the issue for more than four months, something Oversight Chairman Jason Chaffetz (R-Utah) has argued amounts to lying.

“Under subpoena, there is a responsibility to respond, and to suggest that you’ve looked everywhere to find documents when you haven’t …,” Rep. Mark Meadows (R-N.C.) said, before trailing off and shaking his head.

Republicans say these are grounds for impeachment because they constitute “gross negligence, dereliction of duty and breach of public trust.” They argue that the impeachment standard has never required them to show criminal behavior.

They’re partially right: The founders described impeachable offenses as “abuse or violation of some public trust.” Some offenses, they said, may even be “political,” crimes that do not constitute criminal violations.

Precedent also supports that notion. Only one-third of impeachments in the House have specifically invoked a criminal statute. In 1803, for example, Judge John Pickering was impeached and convicted for being drunk on the bench. A judge in 1912 met the same fate for “inciting parties before him to enter financial transactions with him,” and a third was waved off for bringing the judiciary into “ill repute” because he was taking kickbacks.

But experts still aren’t sure that gross mismanagement constitutes a “high crime.” Gerhardt said it could, but only if the House can prove some sort of ill will or bad intent on Koskinen’s part.

“If someone were acting in good faith and made a mistake … we don’t use impeachment for that. But if someone was deliberately trying to obstruct justice like, say [President] Richard Nixon, then we say, OK, that’s bad intent and bad misconduct, providing the right level for impeachment,” he said.

The problem, he continued, is that Congress has to prove ill will, and he’s not sure it can do that in Koskinen’s case.

Geyh agrees, while also differentiating Koskinen from Nixon, who resigned when the House started his impeachment hearings: “The difference, of course, is you had some evidence that the president was responsible for destroying incriminating evidence and trying to conceal the truth.”

“In the case of the IRS commissioner, certainly, concealing evidence, destroying evidence, all of those things manifest kind of corruption that could be an impeachable offense, but if the evidence all shows … your underling did it and there is no evidence to suggestion that you ordered it, then the most that can be said is you’re slow and stupid,” he continued. “We don’t have much of a history for making incompetence rising to the level of the crime.”

Conservatives are making the case that intent doesn’t matter when it comes to impeachment. They say, regardless of intent or knowledge, Koskinen had a legal obligation to prevent files being deleted when there was a preservation order in place — and saying “I didn’t know” is no excuse.

“Whether you believe that was an accident or intentional … I don’t believe you have to prove intent in order to get there,” Chaffetz said when asked about the standard for impeachment. “Lying to Congress is a crime, but the standard [for impeachment] is a different one.”