Tax Analysts Blog

Impeaching the IRS Commissioner Is the Wrong Thing to Do

Posted on Nov 4, 2015

The House Republican attempt to impeach IRS Commissioner John Koskinen is one of the most unseemly developments of the Lois Lerner affair. Unseemly is probably not a strong enough word to describe the partisan effort to remove a sitting commissioner. It is just wrong.

I say that without any particular bias in favor of the commissioner. Indeed, I think the Department of Justice went too easy on Lerner and the IRS. Nor do I carry any water for the administration. I disagree far more often than I agree with President Obama on tax policy. Yet, I believe impeachment should be reserved for “big things.” It should not be used as a weapon in the political arena or in policy debates.


There have been 19 impeachments in the U.S. House. Most were judges. And all the convictions in the Senate were cases of bribery and corruption. No commissioner was ever impeached. There has been a legion of calls to impeach presidents, Cabinet members, and members of Congress. Most, if not all, were politically motivated. If you can’t vote them out, or vote them out quickly enough, the next best thing is to use the impeachment process.


And that is wrong. House GOP members say they are frustrated with Koskinen. Since when did frustrating someone equate to a high crime or misdemeanor? Those calling for impeachment say that Koskinen failed to comply with a congressional subpoena ordering him to locate and preserve IRS records related to congressional investigations of the IRS's handling of conservative groups' exemption applications; lied in his testimony before Congress regarding the e-mails of Lois Lerner, the former IRS exempt organizations director at the center of the investigations; failed to act with competence and forthrightness in overseeing the investigation of the IRS's handling of exemption applications; and acted in a manner inconsistent with the trust and confidence placed in him as an officer of the United States.


Of those charges, the only impeachable offense is lying to Congress under oath. The only possibility of lying that I can see is when the IRS destroyed a lot of e-mails several weeks before Koskinen testified that the IRS was handing everything over. But even then there is absolutely no indication that Koskinen knew about the destroyed e-mails or otherwise intentionally misled Congress.

Koskinen may be guilty of being combative with Congress. He may be guilty of caginess during his testimony. He may be guilty of being a lousy commissioner. But none of those are reasons for impeachment.

Read Comments (17)

edmund dantesNov 4, 2015

Mr. Brunori, what is the proper remedy to stop the weaponization of the IRS by
the Obama administration? The politicization of the IRS is, at this point,
beyond dispute. It has cast a terrible pall over the agency. The Department of
Justice whitewashed the whole matter. Many believe that the IRS cost Romney the
election, through its intimidation and delays of conservative grass roots
organizations. Congress has been groping for some kind of leverage to get the
politics out of the IRS, and cutting their budget has been the primary blunt
instrument. I'm fine with cutting their budget even more, until they begin to
cooperate--is that the best way forward?

You think impeachment is unseemly, but the politicization of IRS is not? I
often agree with you, but you are wrong on this one. Koskinen swore under oath
that an exhaustive search proved all of Lerner's emails had been destroyed.
Many of those emails were later found in a West Virginia archive, where the
curators said they had never been asked about their backups. That is simply the
most blatant example of lying under oath. Perjury should now go unpunished?
Getting the politics out of tax collecting is important, but it's hard to
communicate clearly and simply. That's why you hear more and more calls to
simply abolish the IRS. There may be no other way to remove all the cancer.
It will be interesting to see if President Trump aims the big IRS guns at the
Democrats. They might sing a different tune about weaponizing the IRS then.

MIKE55Nov 4, 2015

I agree with everything in this article with one very important exception:
"[T]here is absolutely no indication that Koskinen knew about the destroyed
e-mails or otherwise intentionally misled Congress."

A more accurate statement would be that there is no smoking gun proving beyond
any reasonable doubt Koskinen lied. There is instead a hard-to-swallow story
about a series of coincidences and incompetence, with no proof one way or the
other. Also, while failure to comply with the subpoena in good faith is not an
impeachable offenses (I agree with you on that), it does say something about
Koskinen's credibility, which is the critical factor in evaluating the one
offense everyone agrees is impeachable.

At the end of the day I think Koskinen lied, so I think he should be impeached.
I have no proof of course (nobody does), but that's my best guess. Impeachment
shouldn't be based on guesses, but that's the position we're in: everyone
agrees Koskinen made a false statement before Congress, but nobody knows
whether he did so knowingly. I don't think there's any justification for a
"ties go to the runner" type of rule when it comes to evaluating false
statements made before Congress, so I have no problem with the House impeaching.
I will say it's despicable this is going down party lines, since evaluating a
witnesses credibility should have zero correlation to one's political beliefs.
To me that says just as much about those who are opposing impeachment as those
who are pushing for it. If we had honest politicians, we'd presumably see a mix
of people from both parties on each side of the issue.

David BrunoriNov 4, 2015

Edmund and Mike S,
Be clear, if the commissioner lied under oath I think impeachment would be
warranted. But as Mike S points out there is no direct evidence. But my point
was that we talk of impeachment a lot. People wanted to impeach W. They wanted
to impeach Obama. That is not the way to solve political debates.
And Edmund, I agree with you on the politicization of the IRS. Personally I
think the IRS did very wrong with respect to the EOs. I think Lerner went far
beyond bad management as the DOJ said. There does not seem to have been a lot
of punishment handed out. But you can't blame Koskinen for Lerner.

hlNov 5, 2015

David Brunori,

Then who should be blamed for Lerner?

david brunoriNov 5, 2015

HI,

Personally, I think Lerner should be blamed for Lerner. As much as my
conservative friends want to find a smoking gun that leads to the White House,
it has not materialized.

MIKE55Nov 5, 2015

"Be clear, if the commissioner lied under oath I think impeachment would be
warranted. But as MikeS points out there is no direct evidence."
But my question is: why should Koskinen get the benefit of the doubt in the
absence of direct evidence? He made a demonstrably false statement before
Congress. No one yet knows whether he did so knowingly, but even Koskinen
himself admitted the whole thing "looks suspicious" (or something along those
lines). To me if you make a false statement under oath, and your explanation of
exactly how it happened seems whacky, it's not out of line for Congress to come
after you.

david brunoriNov 5, 2015

MikeS, My point is that you shouldn't use impeachment because things look
suspicious. I think Koskinen was a little cagey. And some of the things he said
turned out to be incorrect. But man, if that is the standard you will have to
impeach a lot of folks from both parties. There is a reason this has been used
rarely in American history. Anyway, I do appreciate your views.

edmund dantesNov 5, 2015

Where is the constitution does it say the incompetence and dereliction of duty
is not an impeachable offense? I'll grant you that "impeachment" has been
politicized by both sides, but that doesn't mean it's not appropriate here.
Koskinen was brought in to clean up the corruption at the IRS. There was much
more to the politicization than just Lois Lerner. What did Koskinen do?
Nothing. No further investigation. There were dozens, perhaps hundreds of IRS
personnel who knew about Lerner's crimes. How many whistleblowers were there?
None. Every single IRS employee who know of Lerner's conduct and failed to
report it should be fired. How many have been even reprimanded? None. What is
the message to the political hacks working at the IRS? Stonewall. Koskinen has
your back, don't worry, keep up the political work, keep going after those
conservatives. Koskinen's performance is at least impeachable, if it is not
actually criminal.
And you seem to think this is acceptable? There has been *no* punishment handed
out, taxpayers see this IRS misconduct go unpunished, taxpayers are rapidly
losing their respect for the tax law itself now, and you are fine with that?
You never answered my question--if we rule out impeachment, and the corrupt DOJ
is the final word on the investigation, how do we get the politics out of the
IRS? We just accept that the IRS is a political institution? (At least if
Democrats hold the White House.)
I suspect your attitude will change under President Trump.

hlNov 5, 2015

David,
Thanks for your forthright reply to my question about responsibility for the
discriminatory behavior by the service. The larger subject of social
organizations, tax treatment and permissible activities is raised by this
episode. Is there any reform in this area that would limit the opportunity for
administrative misbehavior?

Vivian DarkbloomNov 5, 2015

I agree with David. Impeachment is not warranted, at least not based on what
we now know. It sets a bad precedent and invites impeachments based mostly on
political motives.

That said, I wonder whether David would agree that Koskinen should never have
been appointed in the first place. His main qualification seems to have been
that he's a reliable political operative. He's proved a wise choice in that
respect. His alleged expertise in managing turnarounds was the result of some
patently obvious resume padding.

Lesson learned: Stop giving guys like Koskinen too much benefit of the doubt.
I hope you're reading this, Chris Bergin.

david brunoriNov 6, 2015

Edmund, I do not think anything you describe is acceptable. I believe what
happened was a terrible injustice. I just don't think impeachment is the answer
to the problem (nor honestly do I think it is right based on what we know).
Please do not confuse me with an apologist for Lerner, the IRS or the
administration.

david brunoriNov 6, 2015

Viv, I did not think of Koskinen as a political operative (I thought he was
brought in for his business acumen). Whether he should have been appointed (he
certainly made a lot of mistake) is a different discussion. But I understand
your view.

david brunoriNov 6, 2015

MikeS, Yes, good discussion -- and thank you. My final thought is that I agree
it is not too much to demand honesty from our leaders. In Washington however
proving the outright lie is difficult. And if you are going to go the
impeachment route you gotta be sure. In my opinion of course. Thanks again

MIKE55Nov 7, 2015

"MikeS, My point is that you shouldn't use impeachment because things look
suspicious. I think Koskinen was a little cagey. And some of the things he said
turned out to be incorrect. But man, if that is the standard you will have to
impeach a lot of folks from both parties. There is a reason this has been used
rarely in American history."
I suspect the number of officials who have made demonstrably false statements
while under oath is actually very small. There is thus no "slippery slope" with
respect to that particular impeachment charge (though I agree the other four
charges apply too low a bar).
Even if I'm wrong and our Federal officials are constantly being caught in
false statements made under oath, I have no problem with an impeachment in each
and every case, no matter how many people the Senate has to investigate. I
accept that the battle to hold government officials accountable for the
accuracy of their statements to the public was lost a long time ago. However,
is it really so crazy to draw a line in the sand and demand honesty at least
while under oath?
Either way, good article and thanks for participating in the comments.

travis rechNov 9, 2015

Is the DoJ "corrupt" now? As in, they literally take money/bribes in exchange
for favors? I hadn't heard that shocking allegation yet.

edmund dantesNov 9, 2015

Mr. Brunori, thanks much for your reply. I don't mistake you for a Lerner
apologist.

KIPNov 9, 2015

I think Koskinen should impeached if he lied, but even if so, I'm not sure it
makes any sense to do so in an election year where the whole process could
backfire. Besides, Koskinen's real problem is not a crime: it's his extreme
arrogance, condescension and nacissicism in the face of legitimate
Congreesional inquiry (a staple in this Administration from the top down
Lerner? As mentioned - well, explained - in my several Tax Notes columns, she
didn't need direct marching orders; she moved from the FEC to the IRS with the
'blessings' of some that knew she would act exactly as she did. Democrats
scream about wink and nod 'coordination' among Repubican political organization
and c4s all the time. But they pretend it can't possibly exist in IRS
enforcement of political organizations. This despite the letters to IRS from
activists, Senate and House leaders and the relentless attacks (think Koch
brothers ) by the President. Lerner didn't need the message but this all gave
confirmed what she assumed her implied marching orders were
As for the Justice Dept whitewash? Does anyone think it wasn't orchestrated by
a political appointee? The frightening issue is that if it were the decision of
career attorneys at Justice - then the Dept may very well be as corrupt as some
commentators on the Right have argued

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