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When Impeachment Is Wrong, What’s Right?

United States Capitol building, detail
photo by Phil Roeder

The U.S. Constitution specifies that civil officers be “removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

This mechanism is rarely used in practice. In our country’s history, two presidents have been successfully impeached by the House of Representatives, though both were acquitted by the Senate and neither was removed from office. Congress has also impeached a handful of federal officials, though lawmakers have not removed an appointed executive branch official this way in 140 years, and never one below the rank of cabinet secretary, according to Bloomberg.

That record could change, however, if Congress decides to move forward with an impeachment resolution against Internal Revenue Service Commissioner John Koskinen.

Jason Chaffetz, R-Utah, filed the resolution on the grounds that Koskinen failed to make sure his agency could provide a thorough record of emails connected to the IRS’ former director of exempt organizations, Lois Lerner, who was the central figure in the nonprofit-targeting scandal that led to Koskinen’s appointment. The resolution also cited Koskinen’s June 2014 testimony that no subpoenaed emails had been destroyed; it subsequently came to light that IRS employees in West Virginia had destroyed as many as 24,000 of Lerner’s emails in March of that year. (Koskinen later said that he believed his remarks to be accurate when he made them.)

If Koskinen’s failure to ensure that the IRS records subpoenaed by Congress were preserved and his failure to accurately inform Congress of the destruction of that material constitute the civilian equivalent of dereliction of duty, does that mean he has committed an impeachable offense?

Consider this: If we removed all bureaucrats who were not doing their jobs from their positions, we would have a lot of vacancies in the federal work force. And if we demanded that Congress do the removing, lawmakers would not have time to do anything else.

So let’s assume that Koskinen is right in calling Congress’ effort to impeach him for his failure to carry out the responsibilities of his office “improper,” as he did in his prepared testimony before the House Judiciary Committee last week. What next?

The obvious answer for any self-respecting public official, but especially for one who was brought out of retirement to clean up a mess that actually only got worse on his watch, would be to quit. Koskinen would not even be the first person related to this particular IRS scandal to do so, after all. And if Koskinen did indeed have any self-respect, he would do just that, rather subjecting Congress – as well as future officeholders at his level – to the inevitably painful exercise of blasting him out of his desk.

It looks unlikely that Koskinen will gracefully step aside, however. The commissioner’s term ends in November 2017, and he has said he will not resign – though he would leave office early if the next president wished him to. Otherwise, he clearly plans to stay put, even though he has demonstrated, at best, an inability to clean up the mess he was tapped to handle.

What about the current president’s wishes? In May 2013, Obama said that a Treasury Department report on improper targeting of conservative groups revealed findings that were “intolerable and inexcusable.” He went on to add that, “The IRS must apply the law in a fair and impartial way, and its employees must act with utmost integrity.” He also told reporters that Americans had to have confidence that the IRS is “applying the laws in a nonpartisan way.”

Such strong words might suggest a president disinclined to let Koskinen remain in place after failing to carry out his duties so visibly and on such a large scale. If Obama had meant a fraction of his 2013 rhetoric, he would be demanding Koskinen’s resignation letter. Yet from all appearances, the White House is not at all interested in Koskinen’s current congressional scrutiny – or, more accurately, it is interested in portraying the House’s inquiries into IRS political targeting as itself a political machination.

Koskinen should go. He clearly serves no purpose anymore, other than to keep his seat warm until the next president can appoint a successor. To stay in his job after his collective failings sends a message that accountability is not a requirement in high-level, sensitive government positions. That is a message we cannot afford to send.

Impeachment may be the wrong way to remove him, but that is really up to Koskinen, not Congress. If he were truly interested in doing the right thing, he would leave of his own accord.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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