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Legal Experts: 'Utterly Irresponsible' Not to Conduct IRS Impeachment Probe


"High crimes and misdemeanors don’t have to be felonies.”

IRS Commissioner John Koskinen is sworn in before testifying before a Senate Homeland Security and Governmental Affairs Committee on Capitol Hill April 15, 2015 in Washington, DC. On the sixtieth anniversary of the Internal Revenue Services April 15th deadline the committee is hearing testimony on the IRSs challenges in implementing the Affordable Care Act. (Photo by Mark Wilson/Getty Images)

While bringing impeachment charges against Internal Revenue Service Commissioner John Koskinen could seem an audacious move, some constitutional law experts believe it’s the only responsible step for members of Congress to take.

“Impeachment is a remedy to deal with grave offense in the abuse of office — whether or not someone committed private wrongs that warrant being put in jail,” Andrew McCarthy, former chief assistant U.S. attorney in New York, told TheBlaze. “If there have been abuses of power committed by public officials, it would be irresponsible to leave them there.”

IRS Commissioner John Koskinen is sworn in before testifying before a Senate Homeland Security and Governmental Affairs Committee on Capitol Hill April 15, 2015, in Washington, D.C. (Mark Wilson/Getty Images)

McCarthy, best known for leading the prosecutions of the culprits in the 1993 bombing of the World Trade Center, is the author of “Faithless Execution: Building the Political Case for Obama’s Impeachment.” The book, in part, argued against impeaching a president without having the public and a bipartisan majority in Congress behind it — the mistake behind the failure of the 1998 impeachment of President Bill Clinton.

However, McCarthy said that does not apply to an unelected federal official.

“Political concerns are much more heightened when you were talking about a president elected twice by the American people. If you can’t go forward with a political case to the American people and a case to pressure the opposition party, it’s not worthwhile,” Mccarthy said.

“With the IRS on the other hand, this was not an elected official, and the IRS is the most unpopular government bureaucracy even in the best of times — and it’s certainly not the best of times,” McCarthy continued. “For the Republicans, this politically tees up well. Democrats in the Senate might put pressure on him to resign if they don’t want a trial and be put in the political position of defending the IRS.”

Koskinen took the post to lead the IRS in 2013 to clean up the mess left behind from scandal that saw the IRS apparently targeting conservative groups. However, the House Oversight and Government Reform Committee say he was not honest with investigators and failed to comply with congressional subpoenas.

House Oversight Chairman Jason Chaffetz (R-Utah) and 18 other Republican members of the committee signed onto an impeachment resolution that was referred to the House Judiciary Committee just four days after the Obama Justice Department announced there would be no prosecutions against Lois Lerner or other figures in the Tea Party targeting scandal.

“Impeachment is one of the few checks the legislature has on executive power. High crimes and misdemeanors don’t have to be felonies,” John Eastman, a law professor and director of the Center for Constitutional Jurisprudence at Chapman University. “When a public official won’t comply with the law, it is the only option left. If Congress doesn't conduct proper oversight, they are part of the problem."

McCarthy agreed.

“The concept of high crimes and misdemeanors doesn't mean felonies but is based on English law of what’s expected of those with a public trust and is similar to concepts of military justice regarding offenses such as dereliction of duty or conduct unbecoming,” he said.

Specifically, the House Oversight and Government Reform Committee members cited the following offenses as impeachable:

• Failed to comply with a subpoena resulting in destruction of key evidence. Commissioner Koskinen failed to locate and preserve IRS records in accordance with a congressional subpoena and an internal preservation order. The IRS erased 422 backup tapes containing as many as 24,000 of Lois Lerner’s emails — key pieces of evidence that were destroyed on Koskinen’s watch.

• Failed to testify truthfully and provided false and misleading information. Commissioner Koskinen testified the IRS turned over all emails relevant to the congressional investigation, including all of Ms. Lerner’s emails. When the agency determined Ms. Lerner’s emails were missing, Commissioner Koskinen testified the emails were unrecoverable. These statements were false.

• Failed to notify Congress that key evidence was missing. The IRS knew Lois Lerner’s emails were missing in February 2014. In fact, they were not missing; the IRS destroyed the emails on March 4, 2014. The IRS did not notify Congress the emails were missing until June 2014 — four months later, and well after the White House and the Treasury Department were notified.

Though Koskinen was not involved in the targeting scandal itself, his actions likely prevented the truth from surfacing, said David Rivkin, who formerly served as a deputy director in the Reagan Justice Department and as a legal adviser in White House Counsel’s office

“He didn’t cause this, but just as prosecutors bring a case to send a message, this could be done to make a point,” Rivkin, now a partner at the Washington law firm Baker Hostetler LLP., told TheBlaze. “There is a broader narrative in the context of how this administration has violated separation of powers.”

Rivkin said that the purpose of impeachment is not to punish — or even fire — a public official. Rather, it’s to protect the public trust.

“If Congress does nothing, it is de facto approval,” Rivkin said. “It would be utterly iresponsible and utterly dangerous to civil liberties and the balance of powers for the House to do nothing.”

The House has impeached two presidents: Clinton and Andrew Johnson — both acquitted in the Senate. The House also impeached one Supreme Court justice, Samuel Chase, also acquitted in the Senate. Numerous federal judges have been impeached, some removed by the Senate.

However, it’s rare that lower level executive branch officials have faced impeachment. Perhaps the closest parallel to Koskinen would be the Grant administration’s Secretary of War William Belknap, impeached for alleged kickbacks in 1876. Though he resigned the day the House was scheduled to vote, the House proceeded to bring the impeachment charges anyway. The Senate, unsure if it had the authority to try a private citizen, acquitted him.

Based on impeachment history and tradition, experts agreed that holding federal officials accountable doesn’t require a crime in the conventional sense.

“A democratic body is political and being political does not taint a process,” Rifkin said. “The question comes if a process is unduly political or bereft of merit."

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