CLAIM. IRS Commissioner Cannot Be Impeached Because 'Gross Incompetence' Is Protected

Internal Revenue Service Commissioner John Koskinen testifies under subpoena before the House Oversight Committee as lawmakers continue their probe of whether tea party groups were improperly targeted for increased scrutiny by the IRS, on Capitol Hill in Washington, Monday, June 23, 2014. The sign in the background was displayed by the Republican majority staff of the committee. The IRS asserts it can't produce emails from seven officials connected to the tea party investigation because of computer crashes, including the emails from Lois Lerner, the former IRS official at the center of the investigation. (AP Photo/J. Scott Applewhite)

Internal Revenue Service Commissioner John Koskinen testifies under subpoena before the House Oversight Committee as lawmakers continue their probe of whether tea party groups were improperly targeted for increased scrutiny by the IRS, on Capitol Hill in Washington, Monday, June 23, 2014. The sign in the background was displayed by the Republican majority staff of the committee. The IRS asserts it can't produce emails from seven officials connected to the tea party investigation because of computer crashes, including the emails from Lois Lerner, the former IRS official at the center of the investigation.   (AP Photo/J. Scott Applewhite)
Internal Revenue Service Commissioner John Koskinen prays for death after being successfully defended from impeachment by pleading that he is a “gross incompetent.” (AP Photo/J. Scott Applewhite;caption by streiff)

I am not making up anything at all in this post. I swear it.

The House Judiciary Committee is in the process of debating whether or not to vote articles of impeachment against IRS Commissioner John Koskinen over his failure to comply with virtually anything he has been told to do by Congress (see RedState commentary here | here). One would think that when an agency head has shown themselves to be unable or unwilling to follow the law that Congress has the clear right to remove them. Article II, Section 4 of the US Constitution states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.

Because if Congress can’t remove officials for failing to follow the law then the whole concept of checks and balances becomes impossible.

The possibility of Koskinen being impeached has some experts running for the tall grass. One argument is that a GOP congress impeaching a Democrat official will inevitably set off a tit for tat response where Democrats will feel bound to count coup on a Republican in retaliation and on and on:

But the move could backfire on Republicans if Democrats reclaim the House in some future election.

“This is where the politics of impeachment can come back and bite you in the butt,” Geyh continued. “I don’t want to suggest that the Democrats aren’t above these semantics. To the contrary: The next step in the process will be in the next Republican administration, the Democrats are going to say, ‘Hey, you remember what you did to this administration?’”

Some Democrats are already recognizing that two can play this game.

“You’re inviting the other party to reciprocate when it’s their turn; then it’s just tit-for-tat,” said Oversight panel Democrat Gerry Connolly (D-Va.). “It debases the process. This has been sparingly used since the founding of the republic … and for good reason. The bar is a very high bar, and it ought to be so we don’t resort to partisan office removal.”

The most stunning defense, however, was this

If House conservatives press ahead with an impeachment of the embattled tax chief, they’d be voting to remove a relatively low-level executive-branch leader for one of the most minor offenses in American history, several impeachment experts told Politico. That decision could, effectively, lower the threshold for congressional punishment of an executive-branch authority from here on out — and ensure a wave of new proceedings against government officials who have tangled with Congress in the past.

Impeachment has typically been used to punish treason, bribery and other “high crimes” in the top echelons of government. But Koskinen’s impeachment — based on an argument that he failed to comply with a congressional subpoena — would effectively expand that definition to include gross incompetence.

It’s never been done before.

“Nobody has ever been impeached for what we’ll call ‘gross negligence.’ … It has never, in our entire history, despite all the partisan difference, been the basis for impeachment in the past,” said North Carolina School of Law professor Michael Gerhardt, an impeachment expert who has testified before Congress on the matter.

And that, experts say, could touch off a rash of impeachment proceedings, as Hill investigators line up to take on other agency heads who have crossed them.

Let’s be clear. Deliberately blowing of Congressional subpoenas is not “minor.” It is hard to think of a more direct FOAD that can be directed at the legislative branch than ignoring the law and then ignoring a demand that the agency explain itself. And the idea that gross incompetence by federal officials should result in tenure should be a comic stereotype not the law of the land.