The Koskinen impeachment: A factual necessity and a likely political failure

A lot of people probably didn't know that Congress has to power to impeach any public official, not just presidents, if they are found to have committed high crimes and misdemeanors. One of the reasons this fact is so obscure is that it happens even more rarely than the impeachment of presidents. The last time it happened was in 1876. And it makes sense that it would happen rarely, because normally if a public official has done such things, the Justice Department would bring its own charges and no action by Congress would be necessary.

But that doesn't apply in the Obama Administration, where lawbreaking is not a problem if it's done in the service of Democrats and their political agenda, and no charges will be brought regardless of the evidence. So when we find ourselves dealing with a public servant who combines the arrogance and the lawlessness of IRS Commissioner John Koskinen - and Obama's Justice Department, as is its typical practice, refuses to do anything - Congress can either ignore the evidence and let him skate, or proceed on its own. It looks like House Republicans have made their decision:

The resolution containing articles of impeachment accused him of "high crimes and misdemeanors" over the following allegations:

• That he failed to preserve IRS records in accordance with a congressional subpoena; the resolution notes the IRS erased hundreds of backup tapes containing potentially thousands of emails from Lois Lerner, the former official at the heart of the controversy.
• That he made "false and misleading statements" to Congress, including claiming "nothing" had been "lost" or "destroyed."
• That he did not notify Congress of missing emails until June 2014, despite allegedly being aware earlier.

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Pursuing impeachment against an agency leader is exceedingly rare, and a step beyond contempt charges, which is the tool House Republicans tried to use against both Lerner and former Attorney General Eric Holder in past disputes. While impeachment is often thought of as a congressional weapon reserved for presidents, it can apply to "all civil officers of the United States," on the grounds of treason, bribery or other "high crimes and misdemeanors." The charges against Koskinen should not be difficult to prove. They're backed by plenty of documented detail:

The first charge provides the facts of Mr. Koskinen's failure to comply with subpoenas. In February 2014 Congress instructed Mr. Koskinen to supply all emails related to Lois Lerner, who ran the IRS Exempt Organizations division during the targeting. We now know Mr. Koskinen made little or no effort to preserve or track these communications and that, only a few weeks after the subpoena, IRS employees in West Virginia erased 422 backup tapes, destroying up to 24,000 Lerner emails. The second charge cites "a pattern of deception" and three "materially false" statements Mr. Koskinen has made to Congress, under oath, including his assurances that no Lerner emails had been lost. In fact Ms. Lerner's hard drive had crashed and employees erased tapes. A third impeachment charge is that while Mr. Koskinen knew Ms. Lerner's emails were missing as early as February 2014, he did not inform Congress until June 13—and only then by tucking the news into the fifth page of a third enclosure to an unrelated letter to the Senate. A final charge accuses Mr. Koskinen of incompetence, noting how despite his insistence that his agency had gone to "great lengths" to retrieve lost Lerner emails, the IRS failed to search disaster backup tapes, a Lerner BlackBerry and laptop, the email server and its backup tapes. When the Treasury Inspector General did his own search, he found 1,000 new Lerner emails in 14 days.

So given the seriousness of Koskinen's actions, combined with a Democratic administration's refusal to enforce the law, you'd think this would be seen as an obvious and necessary case of Congress stepping in to provide accountability where the executive branch has utterly refused and/or failed to do so. But we all know that's not how political/media narratives work these days. Even conservatives expect the Koskinen impeachment to be portrayed as ridiculous folly on the part of Republicans, because there is virtually no chance of getting 13 Senate Democrats to join with their 54 Republican colleagues to achieve the two-thirds vote necessary for conviction. Here's what Charles Krauthammer thinks:

"This is not going to end well," said Krauthammer, a syndicated columnist and Fox News contributor. "Republicans have demonstrated, if they've demonstrated anything, Republicans in the Congress have shown that they have no ability to conduct successful investigations under this administration. Everything they've touched has failed or backfired." These impeachment proceedings began after the decision last week by the Department of Justice not to press charges against Lois Lerner or anyone else at the IRS for the targeting of conservative groups. When that decision was made, the Chairman of the House Oversight Committee, Jason Chaffetz, tweeted, "A clear message must be sent that using government agencies to stifle citizens' freedom of speech will not be tolerated. " Krauthammer said that if the intent of this attempt to impeach Koskinen is to restore confidence in the IRS, the only way Republicans can do that is by winning the White House in 2016.

I'm sure Krauthammer is right about the politics because we've seen how this sort of thing has played out in other scenarios. The evidence against Koskinen will be convincing, but Democrats and the media will claim that because it all involves his defiance of congressional directives - and in their opinion Congress shouldn't have been investigating in the first place - he really didn't do anything wrong. They used the same argument in defense of Bill Clinton. Sure, he lied under oath and obstructed justice, but there never should have been an investigation in the first place. That is no legal defense of any kind, but they made it work as a political defense and they'll try to do the same thing with Koskinen. The IRS abuse of conservative groups was a much more serious matter than Bill Clinton boinking an intern, but they'll still claim it wasn't that big a deal and that the public doesn't care. They use that one a lot. But their primary claim will be that the whole thing is a waste of time because it has no chance of succeeding. Now it's probably true that they'll never get a conviction because they can never get those 13 Democrat votes they need (assuming they get all the Republicans, and you probably can't assume that either). But if that's true, then on whom does it reflect poorly? The Republicans, who are treating strong evidence of serious crimes in a serious way? Or the Democrats, who look the other way at the Justice Department and are guaranteed to vote to acquit regardless of the evidence? You know perfectly well that the media narrative will be that Republicans are "wasting time and money" on an effort that can't possibly succeed. But the better question is: Should it succeed? If Koskinen has really done the things he's accused of doing, and the evidence shows that, who is being irresponsible here? The Republicans for charging him? Or the Democrats for refusing to hold him accountable? Why aren't the Democrats the ones who will face the media's ire when they're letting a dishonest public official skate purely out of partisan motivation? That's the real dilemma that congressional Republicans face here. I'm sure Krauthammer is right about the politics, but consider the real implication of what he says - that only a Republican in the White House can make justice possible. If that's true, then the principle we're establishing is that every administration's own officials are above the law so long as that administration holds power, and that the only way to hold anyone accountable for breaking the law is to have the opposing party take over. If Congress backs down and doesn't impeach Koskinen, what they're accepting is that Congress has no real role whatsoever in dealing with executive branch lawbreaking. Even if the politics of impeaching Koskinen are bad (if only because of the disgusting way the media would spin the story), is that really a principle we can afford to have Congress accept? Do we really want to set the precedent that from this day forward no Justice Department will hold executive branch officials to account for lawbreaking, and that only a change of administration can do that? Because if that's the case, get ready for an avalanche of investigations and prosecutions every time the White House changes hands. That is not a direction we want this country to take. Narratives aside, Congress has a duty to pursue this. If the press thinks it's irresponsible to deal with high crimes and misdemeanors because the guy's own party is going to protect him - as if that's not the real scandal - then all I can say is that Republicans have to make a decision at some point to do their jobs regardless of media narratives and politics. And if the public agrees with the media, then the country is screwed anyway.