Judiciary chairman signals openness to censuring IRS chief

Judiciary chairman signals openness to censuring IRS chief
© Greg Nash

House Judiciary Committee Chairman Bob GoodlatteBob GoodlatteHouse votes to expand death penalty for police killings House Judiciary Dems call for hearings on Comey ouster Congress should beat the courts when it comes to taxing online retailers MORE (R-Va.) on Wednesday appeared open to censuring IRS Commissioner John Koskinen.

During a committee hearing Wednesday — the panel’s second hearing to examine Koskinen’s alleged misconduct during Congress’s investigation of the political-targeting scandal — Goodlatte asked witnesses questions about other options to punish Koskinen besides impeachment.

ADVERTISEMENT
At the first hearing last month, some House Republicans argued that Koskinen should be impeached because of his actions while the House was investigating 2013 findings that conservative groups’ applications for tax-exempt status were given extra scrutiny by the IRS.

The Republican lawmakers said Koskinen failed to comply with a subpoena, since while he was commissioner backup tapes containing thousands of former IRS official Lois Lerner’s emails were destroyed. They also said that Koskinen made false and misleading statements under oath about the IRS’s efforts to provide Congress with Lerner’s emails.

The House can vote to impeach with a majority vote. But in order for Koskinen to be removed from office, the Senate would have to vote to convict by a two-thirds majority, which is unlikely.

Goodlatte did not say what his committee’s next steps would be. An aide to the committee said members would reflect on the discussion during Wednesday's hearing before deciding whether to take further action.

House Oversight and Government Reform Committee Chairman Jason ChaffetzJason ChaffetzJordan won't run for Oversight gavel Oklahoma rep. launches long-shot bid for Oversight chair Mueller reviewed Comey memos: report MORE (R-Utah) has introduced resolutions to impeach and censure Koskinen, and his panel approved the censure resolution last week.

In his first question at the hearing Wednesday, Goodlatte asked George Washington University law professor Jonathan Turley what the most practical options are for the House if the Senate won’t remove an official from office that the House has impeached.

Turley said “the most obvious response” to alleged false statements traditionally was a contempt sanction, but the administration has “effectively gutted that option for Congress.” He also mentioned fines and financial penalties and said that censure of an executive-branch official is clearly constitutional.

A short time later, Goodlatte asked all of the witnesses if censure is “a remedy that is available to Congress in instances such as these?”

Todd Garvey, a legislative attorney at the Library of Congress, said yes, so long as the censure is in the form of a non-binding resolution. 

Turley said that a censure resolution should be considered during regular order in the House rather than as part of an impeachment process.

Michael Gerhardt, a law professor at the University of North Carolina, said that Congress has the ability to approve non-binding resolutions but should be careful of the wording to make sure that the measure is not an unconstitutional “Bill of Attainder” that punishes a specific person or group of people.

At the end of the hearing, Goodlatte entered into the record information that his research has found about the censure of two sub-cabinet officials.

Much of the discussion during the hearing focused on whether Koskinen could be impeached for being grossly negligent.

Goodlatte asked whether the founding fathers considered “maladministration” to be an impeachable offense. 

Andrew McCarthy, a former assistant U.S. attorney, said that the framers considered a maladministration standard but rejected it. However, he also said that an early Supreme Court justice had said that impeachment could be for political offenses stemming from gross neglect.

Gerhardt said that the framers expected that over time, there would be case law that would help to determine what constituted “high crimes and misdemeanors” eligible for impeachment. He said that he thinks the common law has shown there needs to be both bad intent and a bad act.

Some Republicans on the Judiciary Committee continued to call for impeachment of Koskinen.

House Freedom Caucus Chairman Jim Jordan (R-Ohio) said that in the past, the House has voted to cut the IRS budget and to call for a special prosecutor to investigate the political-targeting scandal. If impeachment is a last resort, “we’re there,” he said. 

“There is nothing else we can do to reassert ... the rights of the legislative branch, which have been trampled on by this executive branch,” he said.

He also said that if Koskinen’s actions’ don’t warrant impeachment, “I do not know what does.”

After the hearing, Chaffetz said he would continue to press House leadership for votes on his impeachment and censure resolutions. He once again said that he views censure as a “precursor” to impeachment.

Democrats defended Koskinen at the hearing.

Rep. Jerrold Nadler (D-N.Y.) said the idea that Koskinen could be impeached for gross negligence is novel. He also said that Congress does not have enough time this year to impeach Koskinen and that lawmakers should devote their attention to more pressing matters.

“We have so much more important work to do,” he said.

Nadler also called censure a “pointless, partisan exercise” that doesn’t carry force of law. If Chaffetz’s resolution did carry the force of law, it would be a bill of attainder, a point on which Gerhardt agreed.

Koskinen was invited to attend the Judiciary Committee’s first hearing but declined, saying he did not have enough time to prepare. In written comments to the committee, he said that the impeachment resolution lacks merit.