Fred Wertheimer: “House Freedom Caucus Pushes for Sept Vote on Unprecedented & Baseless Impeachment Resolution Against IRS Commish Koskinen”
In July, Rep. John Fleming (R-LA) introduced a resolution of impeachment (H.Res. 828) against Internal Revenue Service Commissioner John Koskinen.
In August, Rep. Jim Jordan (D-OH), chairman of the House Freedom Caucus, said that House Freedom Caucus members would push for a House vote on the impeachment resolution when Congress returns in September. Under House rules, an impeachment resolution is a privileged resolution that can be brought directly to the House floor by any member for a vote at any time.
This effort has received little public or media attention and yet it has the potential for enormous negative consequences if it is successful.
A Solemn Constitutional Responsibility
H.Res. 828 is a misuse of the impeachment process. The resolution alleges a meritless case for impeaching Commissioner Koskinen that is not supported by the facts and that has no constitutional or legal basis.
Impeachment is a solemn constitutional responsibility given to each member of the House. Thus, in the 228-year history of the United States Constitution, the House has exercised its power of impeachment in only one case involving an Executive Branch official other than the president, when the House impeached the Secretary of War in 1876.
The House has never impeached a sub-Cabinet level Executive Branch official, like Commissioner Koskinen. House members throughout history have recognized that the impeachment power was not placed in the Constitution to be used for political, partisan or ideological purposes.
House Speaker Paul Ryan’s leadership will be tested in September when he faces the issue of persuading his Republican colleagues to reject the unprecedented and baseless effort to impeach Commissioner Koskinen. Silence and inaction by Speaker Ryan is not a defensible option in this matter.
When Democrats controlled the House in 2008, Democratic leaders rejected a similarly baseless impeachment effort against President George W. Bush. Democratic Rep. Dennis Kucinich (OH) that year filed an impeachment resolution against President Bush and brought it directly to the House floor as a privileged resolution.
Despite having a number of grievances with President Bush that included concerns about his administration’s retention of records and responses to congressional inquiries, Democratic leaders moved quickly to kill the Kucinich impeachment resolution by referring it to the House Judiciary Committee to die.
Speaker Paul Ryan and his leadership team should similarly move quickly to block the Koskinen impeachment resolution. They should lead an effort on the House floor to table the resolution and kill it.
House Freedom Caucus members are pursuing the impeachment of Commissioner Koskinen without a legitimate basis for any such sanction. Some conservative outside groups have also joined in the effort. They are using the impeachment resolution as a fundraising tool and are conducting a grassroots campaign to pressure Members to vote for the impeachment resolution.
This is surely not what the Founder Fathers had in mind when they provided House members with the power and responsibility for impeachment. Impeachment is unlike other powers granted to Congress and it requires members to vote their conscience on the merits, and not their party, politics or ideology.
Commissioner Koskinen is a highly regarded public servant who has served Democratic and Republican Presidents with distinction. The impeachment allegations are without merit.
In July, eight former IRS commissioners, appointed by Democratic and Republican presidents, sent a letter to Republican and Democratic House leaders stating that Commissioner Koskinen “is recognized as an honest and honorable public servant who is trying to do a good job on behalf of our country and its citizens in running the IRS under trying circumstances.”
The letter from the former IRS commissioners further states that proposals to impeach or censure Commissioner Koskinen “are both disproportionate and counterproductive,” and would “do serious, long-term damage to our revenue system.”
The letter concluded, “To serve the best interests of United States taxpayers and the agency that we formerly led, we ask that the House reject censure or impeachment and move forward with the important work of improving the administration of our tax system for all Americans.”
(A separate resolution of censure, H.Res.737, introduced on May 18, 2016, makes the same baseless case against Commissioner Koskinen that is set forth in the impeachment resolution and also should be rejected if it is pursued.)
The impeachment resolution against Koskinen is not based on allegations that the IRS improperly targeted applications for tax-exempt status by conservative groups, since those activities all occurred, and ended, before Koskinen became IRS commissioner.
Instead, the impeachment resolution is based on allegations that Commissioner Koskinen failed to fully respond to congressional subpoenas, and made false and misleading statements to Congress about whether he would preserve and produce to Congress all requested documents.
There is simply no evidence that Commissioner Koskinen engaged in any improper conduct during his service as IRS Commissioner. There is no evidence that Koskinen intentionally impeded any aspect of any investigation or that he made any knowing misrepresentation to Congress or that he in any way acted in bad faith.
In reality, Commissioner Koskinen presided over an extraordinary effort by the IRS that produced more than a million pages of agency records and that cooperated with multiple overlapping investigations by Congress, the Justice Department and the Treasury Inspector General for Tax Administration (TIGTA).
The Treasury Inspector General investigated the issues at the heart of the impeachment resolution: whether there is any evidence that anyone at the IRS – including Commissioner Koskinen – knowingly and intentionally erased relevant back-up tapes, destroyed hard drives or otherwise attempted to impede the production of documents sought by investigators.
The Inspector General concluded there is “no evidence” that IRS employees “intended to destroy data on the tapes or hard drives in order to keep this information from Congress, the DOJ or TIGTA.” This finding was based on an investigation that took more than a year to complete and included interviewing 118 witnesses and reviewing over 20 terabytes of data.
According to the Inspector General, “[N]o evidence was uncovered that any IRS employees had been directed to destroy or hide information from Congress, the DOJ, or TIGTA.”
A similar conclusion was reached by the Justice Department which conducted its own investigation of this matter and communicated its conclusions by letter to the House Judiciary Committee leaders.
The letter addressed the question of whether there was any “deliberate attempt to conceal or destroy information in order to improperly influence a criminal or Congressional investigation.” The Justice Department stated that it “uncovered no evidence of such an intent by any official involved in the handling of tax-exempt applications or the IRS’s response to investigations of its conduct.” This statement covered Commissioner Koskinen’s time at the IRS.
The Constitutional standard for impeachment requires that the individual in question has committed “treason, bribery or other high crimes or misdemeanors.”
The constitutional standard for impeachment is whether a federal officer has committed “treason, bribery or other high crimes and misdemeanors.” As shown above, this standard is clearly not met in the Koskinen matter.
Even if one believes that Commissioner Koskinen made some mistakes in managing the multiple investigations he inherited, mistakes in office are not, and have never been, grounds for impeachment.
In testimony before the House Judiciary Committee on June 22, 2016, Professor Michael Gerhardt, a leading constitutional scholar on impeachment, stated:
[T]he Founders considered but rejected making certain high-ranking officials impeachable on broader grounds such as “maladministration.” The Founders did not want high-ranking officials in the executive or judicial branches to be subject to impeachment for their mistakes in office.
Conclusion
There is no factual or legal basis for the Koskinen impeachment resolution.
Passing a meritless impeachment resolution, furthermore, would severely damage the ability of a president from either party to recruit qualified individuals in the future to serve in important high-level government positions. Such a misuse of the impeachment process would set the stage for impeachment efforts regularly occurring in the House regardless of the merits and without concern about the damaging consequences of such actions.
Commissioner Koskinen should not become a sacrificial lamb for reasons that have nothing to do with his performance as a public official.
House members should exercise their constitutional impeachment power responsibly by voting to defeat any resolution to impeach Commissioner Koskinen.
