Impeachment and the IRS Scandal: Should John Koskinen Face the Music? By Andrew C. McCarthy
https://pjmedia.com/andrewmccarthy/2016/06/23/impeachment-and-the-irs-scandal/
Note: Yesterday, I testified before the House Judiciary Committee in Part II of a hearing on “Examining the Allegations of Misconduct Against IRS Commissioner John Koskinen.”
The hearing, at which three other lawyers also testified, explored impeachment principles. Below is the written testimony I submitted prior to the hearing.
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Chairman Goodlatte, Congressman Nadler, members of the committee, my name is Andrew C. McCarthy. For over eighteen years, I was a federal prosecutor in the Southern District of New York, retiring from the Justice Department in 2003 as the chief assistant United States attorney in charge of the Southern District’s satellite office (which oversees federal law enforcement in six counties north of the Bronx).
During my tenure in the office, I investigated, tried and supervised the prosecution of numerous criminal cases, running the gamut from organized crime and narcotics trafficking through political corruption and terrorism. In addition, I held various executive staff positions in the office, including deputy chief of the appellate unit, in which I wrote and edited briefs submitted by the United States to the Court of Appeals for the Second Circuit, and prepared other prosecutors for oral argument (in addition to writing briefs and presenting oral argument in numerous of my own cases).
During my Justice Department service, I was twice awarded the Justice Department’s highest honors: the Attorney General’s Award for Distinguished Service in 1987 for the “Pizza Connection” organized crime and international narcotics trafficking case targeting the Sicilian mafia, and the Attorney General’s Award for Extraordinary Service in 1996 for the terrorism prosecution against the jihadist cell of Omar Abdel Rahman (a/k/a “the Blind Sheikh”) responsible for (among other atrocities) the 1993 World Trade Center bombing and an unsuccessful plot to bomb New York City landmarks.
Since retiring from the Justice Department, I have been a writer, focusing on matters of law enforcement, national security, constitutional law, politics and culture. Concededly, I tend to come at policy matters from a conservative and constitutionalist perspective; nevertheless, I have always believed the application of legal principles and precedent should be a non-partisan endeavor, just as it was when I was a prosecutor. In my post-Justice Department career, I have written several books, including (in 2014), Faithless Execution: Building the Political Case for Obama’s Impeachment.
In a nutshell, Faithless Execution argues that the Framers saw impeachment as an “indispensable” tool (to quote James Madison) in the constitutional framework of divided authorities, which obliges Congress to police executive overreach. The principal purpose of the Constitution is to limit the power of government to intrude on the liberties and suppress the rights of the American people. Separation of powers is the primary way the Constitution guarantees these liberties and rights. Thus, the Framers were deeply worried that maladministration — including overreach, lawlessness, or incompetence — could inflate the constitutionally-limited executive into an authoritarian rogue who undermines our constitutional order.
Impeachment is one of the principal checks on that damaging tendency. Executive overreach invariably involves the usurpation of congressional power, the misleading of Congress, and the abuse of authority granted to the executive by Congress. The Framers thus expected that lawmakers would have an incentive to defend both the American people and Congress as an institution, notwithstanding partisan ties to the president.
Nevertheless, I further posited in Faithless Execution that impeachment is a political remedy, not a legal one. Consequently, regardless of how clearly the legal requirement of “high crimes and misdemeanors” is established, impeachment and removal — as a practical matter — will not occur absent sufficient public consensus to induce the Senate to convict an impeached official by the required two-thirds supermajority. The theory presented in my book is that, to be viable, impeachment cases must be built politically by aggressive congressional exposure of executive misconduct. If they are not, it is a mistake for Congress to proceed with impeachment, even if lawmakers are in a position to prove many instances of misconduct that rise to the level of high crimes and misdemeanors.
There is, of course, a caveat here: The degree to which political support must be built varies directly with the degree of political connection between the public and the executive branch official in question. The public has a great political investment in a president – the official in whom the Constitution vests all executive power, and whom Americans, in the case of President Obama, has elected not once but twice. The public has considerably less political investment in an unelected subordinate official responsible for carrying out the duties of a critical executive agency, the powers of which have been abused.
In the latter situation, it is a duty of the president to take action to discipline or terminate the rogue executive agency officials or be deemed personally responsible for that misconduct. Indeed, 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.
If the president is derelict in this duty, it is essential that Congress take action. The impeachment of subordinate, unelected executive officials in whom the public has evinced no political support is an ideal way to deal with executive lawlessness. It is a far less drastic remedy than, for example, impeaching the president or using Congress’s power of the purse to slash the funding of the abusive agency.
At the 1787 constitutional convention in Philadelphia, George Mason rhetorically asked, “Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?” These epigrammatic questions elucidate the Framers’ rationale for including in the Constitution a procedure for the impeachment and removal of executive officials, up to and very much including the president.[i]
Few matters at the convention addled the delegates as much as the dangerous potential that the president of the United States – the powerful new position they were creating, the single official in whom they decided to vest the entirety of federal executive power – could become a king. The objective of the Constitution was to safeguard liberty, not sow seeds for the very tyranny from which the American colonies had liberated themselves.
Much of the convention, therefore, was dedicated to foreclosing that possibility. The president would have to face election every four years. While immense, the chief executive’s authorities would be checked in every important particular. The president, for example, would be commander-in-chief, but Congress would retain the power to declare war and hold both the purse and significant powers over the armed forces. The president could make treaties and broadly conduct foreign affairs, but international agreements could not amend the Constitution (there being a separate process for that); treaties could not take effect unless approved by a Senate supermajority; and Congress was empowered to regulate foreign commerce. The president would appoint major government officials, but they could not take office without Senate approval.
Indeed, the main point of having a unitary executive – vesting awesome powers in one president, rather than in an executive committee or in a minister advised by a privy council[ii] – was accountability. Ultimately responsible for all executive conduct and unable to deflect blame for wrongdoing, a single president, Alexander Hamilton argued, would be amenable “to censure and to punishment.”[iii] The future Supreme Court justice James Iredell concurred: The president would be “personally responsible for any abuse of the great trust reposed in him,” a key ingredient in making him “of a very different nature from a monarch.”[iv]
Palpably, if the president is derivatively responsible for all misconduct committed by subordinate executive branch officials, those subordinate officials are responsible for misconduct committed by themselves and their own underlings when the authorities of their agencies are abused. Indeed, to the limited extend delegates at the Philadelphia convention dissented from the concept of congressional power to remove a president from power, it was on the theory that it would be both essential and preferable to remove subordinate officials who had participated in the abuse of executive power. Because chief executives would always have subordinates in the commission of any misconduct, some of the Framers thought it sufficient that these “coadjutors” could be punished during the presidential term. The removal of subordinate officials would address abuses of power without the destabilizing effects impeaching a president would portend.
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