Paul L. Caron
Dean


Thursday, June 2, 2016

The IRS Scandal, Day 1120

IRS Logo 2Politico, How the GOP Effort to Oust IRS Chief Could Backfire, by Rachel Bade & 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. ...

[A]n 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. ...

[E]xperts 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.

https://taxprof.typepad.com/taxprof_blog/2016/06/the-irs-scandal-day-1120.html

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Comments

I think the Committee is making a play for media attention. If the media hadn't consistently blacked out this story I doubt that impeachment would have been attempted. They must see impeachment as their only way to inform the public of what looks a lot like a cover-up.

Posted by: AMTbuff | Jun 2, 2016 7:44:30 AM

Mr. ATM: Children who don't get their parents' attention through tantrums. Congressional committees, even ones "led" by Rep. Chaffetz, should be held to a higher standard.

Posted by: Publius Novus | Jun 2, 2016 3:27:56 PM

(Let's make that "throw" tantrums.)

Posted by: Publius Novus | Jun 2, 2016 3:29:24 PM

There are plenty of good reasons to impeach the Commissioner now that would get him convicted in the Senate. The Future State Initiative basically usurping the role of Congress that would otherwise be exercised through an Authorization Act is a big one. IRS hasn't had one of those since 1998 where in contrast the military establishment gets one pretty much annually.

Posted by: Lieutenant Blantyre | Jun 2, 2016 4:30:31 PM

Mr. Blantyre: What upsets you about the Future State Initiative? As for the military, the Founders great fears of a standing army induced them to limit military appropriations to periods of not more than two years. No civilian agency is limited in that way.

Posted by: Publius Novus | Jun 3, 2016 5:46:07 AM