On November 9, 2017, well into the Clinton or Trump Administration, IRS Commissioner John Koskinen’s term will expire. Koskinen, like FBI Director James Comey, is a Senate-confirmed executive who has a term of office making him independent of the president’s term. Koskinen will be lauded at that time as a man of integrity who not only kept the IRS on life support while under constant attack but who provided the necessary leadership and integrity to drive the agency forward to better serve taxpayers.
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Impeachment of federal office holders is reserved for those who commit high crimes or misdemeanors. Unfortunately, the House of Representatives seems determined to have a go at Koskinen for reasons that are political and unworthy of impeachment. Chairman Jason Chaffetz of the Committee on Oversight and Government Reform introduced an impeachment resolution against Koskinen. The House Judiciary Committee held hearings. This is an uncharacteristic misstep by the Paul Ryan House of Representatives.
Koskinen is an exemplary public official. He should be getting an award for his service, not this type of attention. He has not done anything wrong personally. Impeachment in the absence of crimes or unethical behavior, none of which has occurred here, is a dangerous precedent that has not been part of the U.S. experience and could dissuade experienced, competent executives like Koskinen from accepting appointment to senior management positions within government. I recently defended a case in Austin, Texas, where a similar mean-spirited legislative impeachment proceeding rightly failed.
Why is Koskinen singled out for this ‘honor?’ In essence, the claim is he failed to respond to lawfully issued congressional subpoenas and engaged in “a pattern of deception” in statements pertaining to the IRS production of emails, and failed to act with competence in overseeing the investigation into IRS’s treatment of conservative groups. The proponents’ case that Koskinen committed high crimes and misdemeanors depends upon issues he did not control.
But Koskinen wasn’t even at the IRS when the scandal occurred, and he certainly was not leading the search for documents to respond to congressional requests. Republican members of Congress are rightfully upset that IRS employees in West Virginia magnetically erased hundreds of backup tapes in March 2014, destroying some of former IRS official Lois Lerner’s emails. While IRS recycling the backup tapes was dumb as a bag of hammers, Koskinen did not engage in that activity.
Can these alleged transgressions by the IRS be attributed to the new commissioner or rise to the level of an impeachable offense by him or contempt of Congress? Clearly, the answer is no. This is not a case where a senior government official directly or indirectly ordered that subordinates destroy evidence being sought through a Congressional subpoena. See the Nixon case. Nor is there any suggestion that Koskinen or any other senior IRS official was complicit in a scheme or plot to destroy evidence sought by the Oversight Committee. In the absence of such evidence, impeachment is not an appropriate remedy.
The IRS reportedly has spent $20 million and 160,000 employee hours responding to investigations related to its ill-advised treatment of conservative groups. The agency has also provided Congress with millions of pages of documents. But spoliation of electronic files at the IRS through ineptitude is hardly a surprise — it happens every day at major corporations as well.
The inherently personal attack on Koskinen is wholly unfounded. It simply does not square with Koskinen’s well-deserved reputation for candor, competence, and achievement over five decades in government and the private sector.
Let’s get a grip: Commissioner Koskinen has previously served as Deputy Mayor of the District of Columbia; Deputy Director for Management of the Office of Management and Budget; Chairman of the President’s Council on Y2K; and interim CEO and later Chairman of Freddie Mac. He also worked on the turnaround of large, struggling enterprises, including Penn Central Transportation Company and the Teamsters Pension Fund.
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Koskinen is what he appears to be — an exemplary public servant who heads an agency in disarray; while his 76-year-old peers are fishing or golfing.
People with Koskinen’s skill-set are incredibly hard to find in public service. One can only hope that this impeachment resolution — and the personal nature of its assertions — won’t cause others to turn away from public service, depriving the government of the seasoned, competent executives that it desperately needs.
Stephan M. Ryan has served as general counsel of the Senate Homeland and Governmental Affairs Committee and is a former Assistant U.S. Attorney for the District of Columbia and Deputy Counsel of the President’s Commission on Organized Crime. He has worked with IRS Commissioner Koskinen on cybersecurity issues.
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