GOP Schooled on Process to Impeach IRS Chief

WASHINGTON (CN) — Legal experts diverged Wednesday as Congress grilled them about the authority to impeach the commissioner of the IRS, a position near and dear to the Republican Party.

"In my opinion, and I'm just a law professor, but in my opinion I believe gross negligence or gross incompetence does not qualify as an impeachable offense," said Michael Gerhardt, who teaches at University of North Carolina. "That is a step onto the slippery slope of offenses I don't think the framers and I don't think the common law support as impeachable offenses."

Republicans have said gross negligence is the minimum offense IRS commissioner John Koskinen committed when he supposedly stonewalled their investigation into whether conservative political groups seeking tax-exempt status faced undue scrutiny.

Koskinen was not even at the agency when the supposed political targeting occurred, having stepped in only after the scandal broke, but lawmakers say he lied under oath, gave misleading information during a congressional investigation and ignored congressional subpoenas.

Though Democrats say the investigation is a partisan witch hunt that has turned up no credible evidence IRS targeting ever occurred, the House Oversight Committee approved a bill last week to censure Koskinen.

This rhetoric figured heavily into a two-hour hearing Wednesday morning before the House Judiciary Committee that ultimately provided little consensus on the Congress' rights and obligations to impeach an executive official.

"The underlying offense here was the most egregious thing you can do: going after people's political free speech rights," Rep. Jim Jordan, R-Ohio, said.

Rep. Hank Johnson, D-Ga., scoffed.

"What we're doing here has no relationship to an impeachment proceeding," he said. "We should not give the public the false impression that this is about impeachment. This is about the dog chasing its tail."

Professor Gerhardt and another legal expert both agreed today that Congress has the authority to impeach Koskinen based on the allegations against him, saying criminal intent is not necessary to impeach a federal official.

They also cautioned about ensuring that the proceedings are politically viable.

"You can have a thousand high crimes and misdemeanors, if you don't have public consensus that the official should be removed, the official won't be removed," said Andrew McCarthy, a former assistant U.S. attorney who wrote a book building a case to impeach President Barack Obama.

When asked if lying to Congress was an impeachable offense, McCarthy said it was, but that Congress would have to prove "bad intent," not just a bad act.

The witnesses did not offer their opinions on the specific evidence against Koskinen, but they did give historical context on the House's past efforts to impeach government officials. They also shared perspectives on the role of the impeachment power and what the founders intended when they established it.

McCarthy said impeachment is an "extraordinary remedy," but maintained Congress has an obligation to impeach officials it believes committed serious wrongdoing.

"You have an obligation constitutionally, because nobody else can, to check executive abuse power, overreach," McCarthy said. "And if you allow a situation where an agency like the IRS is weaponized against political opponents of the administration, and you allow a situation where, when you ask for relevant information you're entitled to have from the executive branch, they either provide you with false information or they obstruct justice, you either have to act or you are basically green lighting that conduct."

But Gerhardt, who was most often the target of questions from Democrats at the hearing, said impeachment is not to be wielded lightly.

"The impeachment process was not meant to a kind of roving commission that would then cover all kinds of mistakes and misconduct," Gerhardt said. "It's the most serious things."

After the hearing Rep. Jason Chaffetz, the Utah Republican who introduced the impeachment proceedings against Koskinen and chairs the House Oversight Committee that moved to censure him, told reporters he would like to see the House move forward with both the censure resolution and impeachment.

"I need to chat with [House Judiciary Rep. Chairman Bob Goodlatte] but I would like to move forward on both fronts," Chaffetz said. "I think it warrants it. Congress needs to stand up for itself, I think that's what you heard in the testimony."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit