TO: Interested reporters and editors

FROM: Karen Hobert Flynn, president, Common Cause

SUBJECT: House Weighs Unprecedented Impeachment of IRS Commissioner without Due Process

I’m writing to urge your coverage of what I believe is the most important underreported story in Washington, a determined and disturbing effort by members of the House Freedom Caucus to have the House impeach IRS Commissioner John Koskinen and put him on trial in the Senate.

Commissioner Koskinen has been denied due process as regular order has been circumvented in the rush by some members for quick action on impeachment to score political points and flog a familiar whipping boy in the IRS. A floor vote on an impeachment resolution could come as soon as Thursday of this week.

If Commissioner Koskinen is impeached, similar proceedings would likely become commonplace on Capitol Hill and civil servants would be further cowed by a Congress that regularly goes after agency heads and personnel in an effort to intimidate them and keep them from performing their official duties.

The Freedom Caucus is a group of several dozen Republican House members that came to prominence during their successful effort last year to force the resignation of then-House Speaker John Boehner. They remain something of a thorn in the side of Boehner’s successor, House Speaker Paul Ryan, and the rest of the GOP leadership.

Caucus members allege that Koskinen impeded congressional inquiries into the IRS’s alleged harassment of conservative “social welfare” nonprofit groups. They say he acquiesced in the destruction of evidence and provided false and misleading testimony.

The charges are serious. The IRS and other agencies have a responsibility to respond promptly and accurately to congressional investigators. But Koskinen’s accusers are engaged in a rush to judgment, relying on “evidence” that does not stand up to scrutiny, and flouting every standard of due process and fair play. They’re asking the House to set a dangerous precedent by impeaching a sub-cabinet officer for the first time in our history and doing so without giving him a reasonable opportunity to defend himself.

Fondo

• John Koskinen came out of retirement in December 2013 at President Obama’s request to take charge of the IRS. He brought a reputation as a dedicated, non-political public servant, having last worked in government as President George W. Bush’s appointee to be non-executive chairman of Freddie Mac.
• Koskinen joined the IRS as the agency was beset by charges that it applied improper scrutiny to applications by conservative groups for tax-exempt status under section 501 (c)(4) of the tax code. These “social welfare” groups are exempt from donor disclosure requirements, making them popular among major donors in both political parties. There is considerable evidence, which we at Common Cause would be happy to discuss, that many of the groups have abused their tax-exempt status by engaging almost exclusively in political activity.
• All of the IRS’s alleged misconduct in processing applications from conservative groups occurred BEFORE Koskinen joined the agency. It’s also worth noting that while their applications were pending, the groups were able to claim (c)(4) status without certification from the IRS and hide the identity of their donors. Many did just that, collecting and spending millions of dollars on political advocacy.

The charges against Koskinen

• H.Res. 828, the impeachment resolution backed by the Freedom Caucus, accuses Koskinen of engaging in “in a pattern of deception that demonstrates his unfitness” for office. Months after IRS employees in Cincinnati destroyed backup copies of emails sought by a House committee investigating the agency’s handling of tax exemption applications, Koskinen testified that all the relevant emails had been preserved and would be provided to investigators, the resolution adds.
• In independent reviews of Koskinen’s conduct, the Justice Department and a Treasury Department inspector general concluded that the email tapes were erased by accident and that Koskinen was not involved. The inspector general’s report said its investigation found “no evidence that the IRS employees involved intended to destroy data… in order to keep this information from Congress” or other investigators.
• At Koskinen’s direction, the IRS spent more than $20 million to collect and provide to investigators about 1.3 million pages of documents, including more than 24,000 emails that had been thought to be lost in the crash of a hard drive used by Lois Lerner, the IRS executive whose office was in charge of reviewing (c)(4) applications.
• The House Judiciary Committee, which typically reviews and refers impeachment resolutions to the full House, has neither reviewed nor voted on H.Res. 828. The committee has conducted hearings on Koskinen’s conduct and he has testified in person and in writing but there has not been the kind of exhaustive inquiry Congress historically has conducted before an impeachment.
• Eight former IRS commissioners, including Democratic and Republican appointees, have written to congressional leaders on Koskinen’s behalf, calling him “an honest and honorable public servant who is trying to do a good job on behalf of our country and its citizens.”
• In August, 124 tax law professors, representing law schools in 39 states and Washington, DC, asserted in a letter to House leaders that “nothing that has been reported provides any basis for impeachment or censure.” The professors added that impeachment “will harm the country by weakening our revenue system… leading to increased tax evasion, reduced revenue collection and a higher national debt.

Conclusión

• The Constitution reserves impeachment for officials who’ve committed “treason, bribery, or other high crimes and misdemeanors.” The allegations against Koskinen are flimsy at best and fall far short of that standard.
• Never in history has a sub-cabinet officer been subjected to censure or impeachment proceedings. This could set a precedent that invites any faction in Congress to use impeachment as a tactic for partisans to delay, distract, or cause gridlock when they differ with an administration.
• Our traditions of due process and fair play require that officials facing impeachment receive ample opportunity to confront and cross-examine witnesses against him/her and present a full defense. Americans accused of even the pettiest crimes enjoy due process rights that have not been extended to Commissioner Koskinen.
• An impeachment based on such weak evidence and growing out of such an abuse of due process would send a demoralizing message to every federal employee and make it more difficult for future presidents to recruit talented, experienced executives to federal service.

The IRS is an easy, inviting target for politicians running for re-election, regardless of party. But the pursuit of Commissioner Koskinen crosses the politics-as-usual line. It deserves, indeed it demands, the careful scrutiny of an independent press.

I would encourage you to write on this topic because Commissioner Koskinen is being tried without due process and further because the negative repercussions of an impeachment in this instance are likely to widespread and long-lasting.