Here are a few pertinent facts. At the IRS, Exempt Organizations Director Lois Lerner participated in delaying for up to five years — effectively denying — tax-exempt status for, and hence suppressing political advocacy by, conservative groups. She retired after refusing to testify to congressional committees, invoking the Fifth Amendment’s protection against self-incrimination.
Koskinen, who became commissioner after Lerner left, failed to disclose the disappearance of emails germane to a congressional investigation of IRS misbehavior. Under his leadership, the IRS failed to comply with a preservation order pertaining to an investigation. He did not testify accurately or keep promises made to Congress. Subpoenaed documents, including 422 tapes potentially containing 24,000 Lerner emails, were destroyed. He falsely testified that the Government Accountability Office’s report on IRS practices found “no examples of anyone who was improperly selected for an audit.”
In June testimony to the House Judiciary Committee, Jonathan Turley of the George Washington University Law School noted that the Obama administration stands accused of “effectively weaponizing the IRS.” And the Koskinen controversy comes as Congress “is facing an unprecedented erosion of its authority vis-a-vis the executive branch.” The “increasing obstruction and contempt displayed by federal agencies in congressional investigations reflects the loss of any credible threat of congressional action. Congress has become a paper tiger within our tripartite system — a branch that often expresses outrage, yet fails to enforce its constitutional authority.” . . .
As a means of controlling the executive, the power of the purse “has become something of a constitutional myth.” This is particularly true now that Congress, inept at producing 12 appropriations bills, forfeits its leverage by funding the government indiscriminately with omnibus bills and continuing resolutions. So, Congress is left with impeachment as the only “functional deterrence for executive overreach.”
The Constitution authorizes impeachment for “high crimes and misdemeanors.” Madison favored this language and interpreted it to include “maladministration,” which surely encompasses perjury and obstruction of Congress. The idea that an IRS commissioner is not a high enough official for impeachment ignores, Turley says, “the realities of the modern regulatory state.” Commissioners have authority over 90,000 employees collecting $2.5 trillion in revenues annually.
Andrew C. McCarthy, former federal prosecutor and Justice Department official, reminded the House Judiciary Committee that “the point of the Constitution’s vesting of all executive power in a single official, the president, is precisely to make the president accountable for all executive branch conduct.” And impeachment of a subordinate official, far from being a radical remedy, is much less drastic than impeaching the president or defunding the official’s agency.
One of the articles of impeachment filed by the House against Richard Nixon was that he, “acting personally and through his subordinates ” (emphasis added), had “endeavored” to use the IRS to violate Americans’ rights, causing IRS actions “to be initiated or conducted in a discriminatory manner.” If presidents are, as McCarthy says, “derivatively responsible” for misconduct by executive branch subordinates, surely those officials are responsible for their own misconduct and that of underlings. Refusing to impeach Koskinen would continue the passivity by which members of Congress have become, in Turley’s words, “agents of their own obsolescence.”
Yes, but it would also require taking responsibility for something.
