IRS Commissioner Koskinen Impeachment Trial Would Be Historic

This post was originally published on Forbes Oct 28, 2015

Unless, like a sensible person, you have been shielding yourself from learning about developments in the interminable, never-ending IRS scandal, now on Day 902 by Tax Prof count, you are aware that impeachment articles against IRS Commissioner John Koskinen have been drawn up.

If the House votes to impeach Mr. Koskinen, he gets tried by the Senate. Two-thirds of the senators have to vote in favor for there to be a conviction.  The effect of conviction would be that Koskinen would be immediately fired and if they want to rub it in disqualified from ever holding federal office.  There is no appeal.

It's About The E-mails

Mr. Koskinen came into the IRS after what I call the "core scandal", delays and intrusive inquiries on tax-exempt application by Tea Party and similar groups. His "high crimes and misdemeanors" relate to IRS response to the investigation by the Committee on Oversight and Government Reform of the House of Representatives.  IRS employees in Martinsburg, West Virginia erased 422 backup tapes destroying as many as 24,000 Lois Lerner e-mails.  A couple of months later Mr. Koskinen testified that nothing had been destroyed.  He also testified that backup tapes from 2011 had been recycled.  Previously he had promised to provide all the Lois Lerner e-mails. He was slow in informing the Committee that there were problems with crashed hard drives and backup tapes.  Subsequently TIGTA investigators found more than 1,000 Lois Lerner e-mails that the IRS had missed in all its rooting around.  This video dramatizes it if you don't want to slog through the resolution.

Is John Koskinen Worried?

Most of what I know about the workings of large organizations comes from reading history and biography and reports from college classmates.  There was also this brief interlude in the "twilight" of my career where I was a managing director in a not-quite Big 4 firm.  Overall the impression I have is that the larger the organization the more it is dominated by people who are worried about their careers.  People who aren't worried about their careers can accomplish lot until they get fired.

Probably the best-known example of this principle is John Boyd, who is considered by some to be a military thinker on the level of Sun Tzu. He would tell young officers that they would come to a point in their career where they have to decide whether they want to be somebody or do something.

If you decide you want to do something, you may not get promoted and you may not get the good assignments and you certainly will not be a favorite of your superiors. But you won’t have to compromise yourself. You will be true to your friends and to yourself.

One of my classmates told me a story once.  He had been warned that a particular person had a lot of power.  So he asked what that person could conceivably do to him.  The answer was that he might have the power to see that he had to retire as a lieutenant colonel.  Trust me, that is not how you terrify somebody who grew up working class.

John Koskinen is 76 years old and is being threatened with losing his IRS job a couple of years early and "Oh the horror" of being ineligible for another government job.  I'm betting that the impeachment threat is not scaring him at all and that he took the IRS job to do something, rather than be somebody. Koskinen could have come into the IRS and thrown as many people under the bus as possible in order to look good, but he made a different choice. He said in an interview.

I was telling somebody earlier , my experience in organizational turnarounds is that people are never the problem. It’s the structure, the leadership, the resources you’re given. This is the best workforce I’ve ever been associated with at the front end of a start-up, and it’s because there’s a mission.

 History

There have only been nineteen impeachments since the Constitution went into effect in 1789.  Three Presidents, a senator, fourteen judges and a Secretary of War. There have been seven acquittals.  The charges cover a range of behavior.  Have you ever heard the expression "sober as a judge"? Well Judge Mark Delahay, not so much.   He was impeached for being drunk on the bench and ended up resigning in 1873.  Judge West Hughes Humphreys was impeached for supporting the Confederacy.  He kept his job as a Confederate judge, until they, you know, lost the war. William Belknap, Secretary of War under Ulysses Grant is the only appointed executive branch official ever impeached.

A House of Representatives’ committee uncovered evidence supporting a pattern of corruption blatant even by the standards of the scandal-tarnished Grant administration. 

The trail of evidence extended back to 1870. In that year, Belknap’s luxury-loving first wife assisted a wheeler-dealer named Caleb Marsh by getting her husband to select one of Marsh’s associates to operate the lucrative military trading post at Fort Sill in Indian territory. Marsh’s promise of generous kick-backs prompted Secretary Belknap to make the appointment. Over the next five years, the associate funneled thousands of dollars to Marsh, who provided Belknap regular quarterly payments totaling over $20,000.

Interestingly, he had served as Iowa Collector of Revenue under Andrew Johnson.  He resigned before the House voted his impeachment but they went ahead anyway.  He was acquitted.

How Might Koskinen's Trial Play Out?

I'm thinking that the impeachment charge closest to that of Koskinen's would be the one against Andrew Johnson for violating the "Tenure in Office Act" by removing Edwin Stanton as Secretary of War.  Fundamentally, the dispute was probably more about Johnson being "in their face" with Radical Republicans.  Of course, those Radical Republicans had a very different set of concerns than the current batch.  They were kind of hoping the federal government might enforce civil rights legislation to protect the recently liberated African Americans.  Johnson not so much.

At any rate, I tend to think that the Koskinen impeachment might not play out that well for Republicans.  I could see Koskinen turning the tables on them in his defense in the Senate and making a case that Issa's committee never was interested in finding out what actually happened, but was mainly looking for stupid remarks by Lois Lerner that could be played up by Fox News.

According to my legal brain trust, the rules for the impeachment trial may be set by the Senate on a more or less ad hoc basis, since it does not come up that often, so it might be arranged to avoid discovery that Republicans would find embarrassing.

Other Coverage

Joe Kristan is a tax blogger with whom I feel very simpatico, as we were both working tax CPAs in regional firms. Joe still is, while I am sem-retired strving to be the first tax blogger to give up his day job entirely.  We differ a bit in our view of the Commissioner.  Even after Koskinen did us all a big solid by easing up the compliance requirements of the repair regs, Joe did not become a fan.  Even so, Joe does not think the impeachment is such a hot idea.

A resolution has been introduced to impeach IRS Commissioner Koskinen. While his conduct in office has been awful, I hope they don’t really try to make it happen. It could backfire, and even if he were impeached, there will never be a conviction. I would rather they spend the time and energy reducing the powers of all IRS commissioners by reducing the power of the IRS through tax reform.

I would further add that even if he is convicted - So what?

You will be able to find links to a wealth of commentary on the Tax Prof Blog - The IRS Scandal Day 902.. If you have been following this you will probably not be surprised to learn that Elijah Cummings does not think the impeachment proposal is such a good idea. "Calling this resolution a stunt or a joke would be insulting to stunts and jokes."