IRS com­mis­sioner mer­its im­peach­ment

Daily Local News (West Chester, PA) - - OPINION - Ge­orge Will Colum­nist Ge­orge Will’s email ad­dress is georgewill@wash­post.com.

Repub­li­can con­gres­sional lead­ers ar­dently want con­ser­va­tive mem­bers of the House to not force a vote on im­peach­ing the IRS com­mis­sioner. The pub­lic does not care about John Kosk­i­nen’s many mis­deeds. And im­peach­ment will dis­tract at­ten­tion from is­sues that in­ter­est the pub­lic. And be­cause Democrats are not in­grates, the re­quired two-thirds of the Se­nate will never vote to con­vict Kosk­i­nen, whose be­hav­ior con­tin­ues the pat­tern of do­ing what Democrats de­sire with the most in­tru­sive and po­ten­tially puni­tive gov­ern­ment agency.

These Repub­li­can lead­ers’ rea­sons are cu­mu­la­tively un­per­sua­sive. Re­sus­ci­tat­ing the im­peach­ment power would con­trib­ute to re­vi­tal­iz­ing Congress’ Ar­ti­cle I pow­ers. Im­peach­ments are rare -- no ap­pointed of­fi­cial of the ex­ec­u­tive branch has been im­peached in 140 years. But what James Madi­son called the “in­dis­pens­able” power to im­peach should not be al­lowed to at­ro­phy, as has Congress’ power to de­clare war.

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 self­in­crim­i­na­tion.

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.”

An­drew C. McCarthy, for­mer fed­eral pros­e­cu­tor and Jus­tice Depart­ment of­fi­cial, re­minded the 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 per­son­allyand 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.”

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