If the House Judiciary Committee moves to impeach or censure Internal Revenue Commissioner John Koskinen, it would be entering “uncharted waters” while possibly producing an illegal bill of attainder—essentially declaring the IRS chief guilty of a crime and punishing him without a fair trial, the committee was told during a Wednesday hearing featuring legal experts.
Minutes before the hearing, House Oversight and Government Reform Committee Jason Chaffetz, R-Utah, renewed his call for impeaching Koskinen a week after voting for censure.)
Judiciary Chairman Bob Goodlatte, R-Va., called the allegations of misconduct against Koskinen “serious” and “shocking,” saying his committee over the past several months has “meticulously pored through thousands of pages of information produced by the investigation.”
That conduct meant, he said, that on Koskinen’s watch, “volumes of information crucial to the investigation into the IRS targeting scandal were destroyed. Before the tapes were destroyed, congressional demands, including subpoenas, for information about the IRS targeting scandal went unanswered,” Goodlatte said. “Koskinen provided misleading testimony before the House Oversight and Government Reform Committee concerning IRS efforts to provide information to Congress.”
But Rep. Jerrold Nadler, D-N.Y., called the process “petty,” noting that only 30 legislative days remain before the election-year recess while issues such as responding to the Orlando massacre, immigration and voting rights reform remain unaddressed. “The most recent impeachment took a year,” he said, referring to the 1974 impeachment of President Richard Nixon. In that case, the accused was allowed to respond, and the investigation focused on misconduct, not “negligence,” as asserted by Chaffetz’s panel. “Censure has no force of law,” Nadler added, “but to defame a fine public servant.”
And the Oversight committee’s resolution threatening to take away Koskinen’s pension and other benefits, Nadler said, would amount to an unconstitutional “bill of attainder” (a position advanced the day before in a press release by House Oversight ranking member Elijah Cummings, D-Md.).
Expert testimony from two law professors, a prosecutor and a Library of Congress expert on American law appeared to support that contention, though two of the professors were sympathetic to Republican efforts to punish Koskinen in some form to reassert the authority of Congress over an “overreaching” executive branch.
Jonathan Turley, a law professor at The George Washington University who has worked with Congress on a past impeachment, said Congress must rely on its “nuclear options”— impeachment, censure, contempt and fines—because of “unprecedented erosion of its authority” by an “increasingly unchecked” executive branch and regulatory state.
Congress has become a “paper tiger,” he said, and that has “left the system unstable and dysfunctional.” Turley called it “bizarre” that a small legal organization like Judicial Watch has been more successful than Congress in getting information out of the executive branch (using the Freedom of Information Act). “It happens because there is no penalty,” he said. “This body has to understand it has the tools to respond. The question is not the means but the will.”
“Impeachment is an extraordinary remedy,” Turley acknowledged, “but we’re living in extraordinary times.”
Michael Gerhardt, a professor at the University of North Carolina School of Law, said, “This body has never impeached a sub-Cabinet officer, so we’re moving in uncharted waters.” The basic standard of impeachment is treason and bribery, which are “self-defined and well understood,” he said. “So you have to be more concrete based on serious fact-finding. There has to be bad intent and bad conduct.”
Gerhardt implored the lawmakers to “take a deep breath and think of the precedent.” In his opinion, the professor said, gross negligence or incompetence do not qualify. If lawmakers opt for censure, he continued, “be careful with the wording. There is not much distance between censure and a bill of attainder, which would be struck down.”
Andrew McCarthy, a former assistant U.S. attorney in New York’s Southern District, stressed that it is “the duty of Congress to uphold constitutional order” against executive overreach. He described the IRS has having been “weaponized against political opponents.” He said responsibility for removing Koskinen lies with President Obama. But he added that the Senate would never vote for impeachment “absent sufficient public consensus,” noting that the Framers of the Constitution considered “mal-administration” as an impeachment standard but rejected it.
Todd Garvey, a legislative attorney in the American Law Division of the Library of Congress, noted that there are “limits and safeguards on impeachment,” directed solely at the president, vice president and civil officers. He reported that over U.S. history, 19 government officials have been impeached: 15 judges, two presidents, one senator and one secretary of war.
When the chairman asked him about censures, he said the last one was during the Teapot Dome scandal of the 1920s.
Goodlatte later came back with staff research showing an assistant Army secretary was censured in 1998 and an ambassador was censured in 1896.