The Corner

George Will’s Call for Impeachment of the IRS Director

In response to The National Guard Docs

In his syndicated column this morning (it’s on the homepage), George Will calls on the House to impeach IRS director John Koskinen. Will points to significant evidence that Koskinen has misled Congress and obstructed its investigation of the revenue agency’s targeting of conservative groups – harassing them with intrusive investigations and delaying (effectively, denying) their tax-exempt status in order to undermine their political speech and activism.

Over a year ago, I called for the impeachment of Koskinen and any other top IRS officials involved in this abuse of executive power. This argument is specific application of the case I make in Faithless Execution (also published last year): Impeachment is designed to cite and remove high officials for dereliction of duty and abuse of their public trusts; it is a political remedy, not a legal one, so it is irrelevant whether there is sufficient evidence to convict the official of criminal charges in court – the point is simply to deprive them of the power they have malevolently or incompetently exercised.

Will gets this exactly right today, explaining:

The Constitution’s Framers, knowing that executive officers might not monitor themselves, provided the impeachment recourse to bolster the separation of powers. Federal officials can be impeached for dereliction of duty (as in Koskinen’s failure to disclose the disappearance of e-mails germane to a congressional investigation); for failure to comply (as in Koskinen’s noncompliance with a preservation order pertaining to an investigation); and for breach of trust (as in Koskinen’s refusal to testify accurately and keep promises made to Congress).

When I began urging Koskinen’s impeachment, it was in part an effort to revive impeachment as a necessary part of Congress’s arsenal for checking maladministration. The Constitution gives Congress powerful tools for this purpose, but they are limited in number. If Congress abdicates the power of the purse and refuses to impeach abusive officials, there really is no other recourse, and, in effect, lawmakers invite more executive lawlessness and recklessness.

My other purpose was to refute the wayward call for a special prosecutor – to be appointed by Congress – then being made by some senior Republicans:

It is no more appropriate for the Congress, on the pretext of a crisis brought on by gross abuses of presidential power, to usurp the executive’s unilateral prosecutorial power than it is for the president, with disingenuous invocations of “prosecutorial discretion,” to violate his solemn oath to faithfully execute the laws as Congress has written them….

Congress may appoint and fund its own special counsel…. But a congressional special counsel is not, and may not be, an independent prosecutor. A congressional “special counsel” may only exercise Congress’s powers, not the president’s. The special counsel may conduct oversight; he or she may not prosecute.

… Congress has the power to impeach and remove from power high executive officials who have abused their powers. And while it appears that conventional felonies may have been committed in the IRS scandal, that is nearly beside the point, for two reasons.

First, “high crimes and misdemeanors” need not be indictable offenses. The term, borrowed from English law, refers instead to betrayals of the profound trust reposed in high government officials. Undermining the constitutional rights of the people and misleading Congress are among the most egregious betrayals executive-branch officials can commit. They clearly warrant impeachment and removal.

Second, with due respect to … Republicans who have emphasized the potential criminal liability of IRS and other executive-branch officials, they are barking up the wrong tree. When executive power is being abused, the public-interest imperative is to remove the power from the malevolent or incompetent officials. Whether they are also, at some point, privately prosecuted for their wrongdoing is of far less moment. In fact, since it often takes a long time to develop a criminal case against public officials, especially public officials who destroy evidence, it is irresponsible of Congress to allow the criminal process to trump the impeachment process. The officials who carried out the IRS abuse of American citizens — and those who have protected those officials — need to be removed from office now, not two or three years from now when we may finally have a scrupulous attorney general….

Will makes a similar argument. First, he marshals the considerable evidence supporting the claims of House Oversight chairman Jason Chaffetz that, under Koskinen’s stewardship, the IRS lied to Congress and destroyed documents under subpoena; and that Koskinen himself deceived lawmakers by, among other things, failing to look for Lois Lerner’s lost emails after promising to do so. Will then points out:

Even if, as Koskinen says, he did not intentionally mislead Congress, he did not subsequently do his legal duty to correct the record in a timely manner. Even if he has not committed a crime such as perjury, he has a duty higher than merely avoiding criminality.

Yup.

The subtitle of Faithless Execution is “Building the Political Case for Obama’s Impeachment.” As a practical matter, building the political case is a prerequisite – at least if the point is actually to remove the president rather than have a damaging circus. Therefore, I argued it would be a mistake to impeach President Obama. Notwithstanding that his record is replete with violations of the public trust, it makes no sense to attempt to remove a president without first building public support for his ouster. Republicans should have been doing this for some time now – for example, by making a record through a select committee on administration lawlessness. But they have no appetite for it.

Nevertheless, the political situation is very different when it comes to the IRS, which, unlike a twice-elected president, has virtually no public support. I put it this way in the column last year:

The IRS is deeply unpopular with the public and many Americans are offended by the Democrats’ use of an intimidating bureaucracy to harass their fellow citizens — they may not be conservatives, but they know it could happen to them, too. Republicans, and any Democrats who still put their duty to the Constitution above their party loyalty, should be taking meaningful action. Let congressional Democrats defend the IRS and any other corrupt officials in the run-up to the midterm elections if that’s what they want to do.

That’s why, for me, the most interesting part of George Will’s very interesting column is his assessment of the politics. It would, he says, be worth it for the House to impeach Koskinen even if Senate Democrats prevent his being convicted and removed:

If the House votes to impeach, the Senate trial will not produce a two-thirds majority needed for conviction: Democrats are not ingrates. Impeachment would, however, test the mainstream media’s ability to continue ignoring this five-year-old scandal, and would demonstrate to dissatisfied Republican voters that control of Congress can have gratifying consequences.

Yes … Republicans please take note: Politics is about public persuasion and winning the argument even if you lack the votes to win the battle. If you shrink from every important fight because you don’t have the votes, you never expose the administration’s wrongs, you never draw attention to the rightness of your own position, and you never move public opinion. You never even have the argument, much less win it, you demoralize your supporters, and you ensure that you will continue to lack the votes to win the battles.

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