Amidst all the unworthy bills House Republicans are bringing to the floor this month, there was one way they could have saved face. Doing so would have made the lame-duck session worthwhile. They could have supported the efforts of Rep. Jim Jordan, R-Ohio (A, 94%) and the Freedom Caucus to impeach IRS Commissioner John Koskinen for his false statements and obstruction of justice. Instead, GOP leadership joined with the Democrats to kill the impeachment effort.
Late in the afternoon, Jordan brought a privileged motion to the floor that would have lodged articles of impeachment against the sitting IRS Commissioner. [Watch his floor speech here.] Under John Koskinen’s watch, the IRS destroyed 24,000 Louis Lerner emails and 422 backup records. Koskinen also lied to Congress on multiple occasions and destroyed evidence in the investigation into the IRS scandal in which the agency was caught targeting conservative organizations. House conservatives felt that this was a perfect time to finally make impeachment great again. After leadership stonewalled House conservatives for months, Jordan finally used a privileged motion to force a vote.
In order to cover themselves, all but one GOP member voted against the motion to table (kill) the resolution. Then, they immediately voted to send the articles of impeachment back to the Judiciary Committee instead of voting to consummate the impeachment and send the articles to the Senate for a trial. The vote, which essentially derailed the impeachment effort, was 166-72. This, after GOP leaders promised conservatives they’d address the issue in the lame duck in exchange for backing off their push for impeachment in September.
Why impeachment is so important
Some detractors are suggesting that it’s worthless to impeach an IRS Commissioner in this late hour. Just wait for a new administration and be done with it, they say. Putting aside the fact that Koskinen would still serve one more year of his five-year term into the Trump administration, there is something more fundamental taking place.
In addition to the powers to legislate and appropriate funds, the framers gave Congress the power to impeach officials of the other two branches of government when they abuse their power [U.S. CONST. art. II, § 4]. Anyone acquainted with the writings of our founders will find that they put a lot of stock in the tool of impeachment and regarded it as one of the most effective means of controlling unelected officials in the executive and judiciary. By my count, impeachment is referenced 58 times in the Federalist Papers and countless times during the Constitutional Convention.
Yet, over time, the political party system has rendered impeachment moot. Rather than having Congress as an institution check the other two branches, we have the three branches of government divided by two political parties. Thus, without a single member of the same party (as the person being impeached) willing to support articles of impeachment, there is no way to obtain 67 votes in the Senate for removal.
Nonetheless, this is no excuse for not trying, projecting a show of legislative strength, and serving as a deterrent to lower level officials. While impeachment against a president has essentially been neutered, lower level officials in the executive branch and lower court judges don’t want their names tarnished and the headache of a public impeachment trial in the Senate. And remember, it only takes a simple majority vote in the House to force a trial in the Senate. Yet, despite the lawlessness of so many officials in the executive and judicial branches, impeachment has almost never been used over the past century. No executive official has been impeached since 1876 when, under President Grant, Secretary of War William W. Belknap was impeached by the House [but subsequently acquitted in the Senate] as part of a string of pay-for-play scandals in the Grant administration.
Impeachment was designed to protect legislative power against usurpations
And no, impeachment was not reserved merely for robbing banks. The great Justice Joseph Story writes in his “Commentaries” that impeachment was reserved for any usurpation of political power “growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard for the public interests.” It is also very evident from Alexander Hamilton in Federalist #65 that the crimes engendering impeachment would be political by nature (leaving criminal charges for a formal prosecution in court) — crimes that “relate chiefly to injuries done immediately to the society itself.” It is also clear from Hamilton in Federalist #s78, 79, and 81 that he felt impeachment would be the superlative check against federal judges abusing judicial review. It is obvious he wasn’t referring to judges committing murder, but rather judges violating the Constitution with their decisions as we are witnessing today.
This is not just about Koskinen or the IRS scandal. This is about reviving a vital check against the unelected branches, which cuts to the core of our constitutional crisis: that the most important decisions are no longer made by elected officials [social transformation without representation]. Yet, this was the perfect time to revive impeachment because it was a case of incontrovertible malfeasance related to a nationally known scandal. If Republicans are unwilling to impeach Koskinen, it is quite evident they are unwilling to impeach anyone else for any reason other than that individual facing a criminal prosecution in a trial court.
This is a power Democrats in Congress should embrace as their worst nightmares of a Trump administration come true. Conservatives will stand with them if and when a Trump administration official violates the Constitution or abuses their power.
In addition, this is one of the many tools that can and must be used against judicial tyranny. Hamilton wrote in Federalist #81 that the power of impeachment alone would be a “complete security” against judges usurping legislative power and would “remove all apprehensions” of those who feared that judicial review would morph into judicial supremacy. While the development of a permanent two-party system proved Hamilton’s prediction wrong, it doesn’t take away the fact that the House indeed has the power to pursue impeachment for those who do violence to our Constitution and usurp the legislature. As Hamilton said, “There never can be danger that the judges, by a series of deliberate usurpations of the authority of the legislature, would hazard the united resentment of the body [e]ntrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.”
The notion that a federal judge could nullify basic state powers, redefine marriage, and even redefine gender — with Congress standing by idly — would have mystified even the most ardent Anti-Federalist of the time.
What our founders ultimately never envisioned was a cadre of cowards like the modern GOP leadership who will ignore their powers to legislate, engage in oversight, appropriate funds, and to impeach — opting instead to cede their fortitude to the weaker branches of government.
It’s time to make impeachment great again!