[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


                EXAMINING THE ALLEGATIONS OF MISCONDUCT
                 AGAINST IRS COMMISSIONER JOHN KOSKINEN
                               (PART II)

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 22, 2016

                               __________

                           Serial No. 114-74

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                             JUNE 22, 2016

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Member, Committee on the Judiciary..     2

                               WITNESSES

Jonathan Turley, Shapiro Professor of Public Interest Law, The 
  George Washington University
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Andrew C. McCarthy, former Assistant U.S. Attorney for the 
  Southern District of New York
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Michael J. Gerhardt, Samuel Ashe Distinguished Professor in 
  Constitutional Law & Director, Program in Law and Government, 
  UNC School of Law
  Oral Testimony.................................................    45
  Prepared Statement.............................................    47
Todd Garvey, Legislative Attorney, American Law Division, Library 
  of Congress
  Oral Testimony.................................................    54
  Prepared Statement.............................................    56

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Jason Chaffetz, a 
  Representative in Congress from the State of Utah, and Member 
  Committee on the Judiciary.....................................   109
Material submitted by the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................   114

 
 EXAMINING THE ALLEGATIONS OF MISCONDUCT AGAINST IRS COMMISSIONER JOHN 
                           KOSKINEN (PART II)

                              ----------                              


                        WEDNESDAY, JUNE 22, 2016

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn House Office Building, the Honorable Bob 
Goodlatte, (Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Chabot, King, Franks, 
Gohmert, Jordan, Chaffetz, Gowdy, Collins, DeSantis, Nadler, 
Lofgren, Johnson, and Jeffries.
    Staff Present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Zachary Somers, Parliamentarian & General Counsel; 
Paul Taylor, Chief Counsel, Subcommittee on the Constitution 
and Civil Justice; (Minority) Aaron Hiller, Chief Oversight 
Counsel; Susan Jensen, Senior Counsel; and Veronica Eligan, 
Professional Staff Member.
    Mr. Goodlatte. Good morning. The Judiciary Committee will 
come to order, and without objection, the Chair is authorized 
to declare recesses of the Committee at any time. We welcome 
everyone to this morning's hearing on examining the Allegations 
of Misconduct against IRS Commissioner John Koskinen (Part II). 
And I will begin by recognizing myself for an opening 
statement.
    The Constitution sets forth a system of checks and 
balances, which grants each branch of government tools to 
ensure that no one branch of government attains too much power. 
The legislative branch's tools include the power to write the 
laws, the power of the purse, the impeachment power, and the 
power to censure, among others. These tools empower Congress to 
exert oversight over the executive and judicial branches, 
including rooting out corruption, fraud, and abuse by 
government officials, and taking further disciplinary action on 
behalf of the American people when warranted.
    The duty to serve as a check on the other branches, 
including against corruption and abuse, is a solemn one, and 
Congress does not take, and must not take this responsibility 
lightly. That is why this Committee has scheduled this hearing 
today.
    In 2013, the American people first learned that their own 
government had been singling out conservative groups for 
heightened review by the Internal Revenue Service as they 
applied for tax-exempt status. This IRS targeting scandal was 
nothing short of shocking. It was a political plan to silence 
the voices of groups representing millions of Americans.
    Conservative groups across the Nation were impacted by this 
targeting, resulting in lengthy paperwork requirements, overly 
burdensome information requests, and long unwarranted delays in 
their applications. In the wake of this scandal, then-IRS 
official Lois Lerner stepped down from her position, but 
questions remain about the scope of the abuses by the IRS.
    The allegations of misconduct against Koskinen are serious, 
and include the following: On his watch, volumes of information 
crucial to the investigation into the IRS targeting scandal 
were destroyed. Before the tapes were destroyed, congressional 
demands, including subpoenas for information about the IRS 
targeting scandal, went unanswered.
    Koskinen provided misleading testimony before the House 
Oversight and Government Reform Committee concerning the IRS's 
efforts to provide information to Congress. These are very 
serious allegations of misconduct, and this Committee has taken 
these allegations seriously.
    Over the past several months, this Committee has 
meticulously pored through thousands of pages of information 
produced by the investigation into this matter. On May 24, this 
Committee held a hearing, at which the Oversight and Government 
Reform Committee formally presented its findings and evidence 
to the Members of this Committee.
    And today, this Committee holds a second hearing to allow 
outside experts to assess and comment on the evidence presented 
to the Committee at its May 24, 2016 hearing, and the many 
options for a congressional response. I look forward to hearing 
from all of our witnesses today.
    It is now my pleasure to recognize the gentleman from New 
York, Mr. Nadler, who will offer an opening statement in lieu 
of the gentleman from Michigan, Mr. Conyers, who is not able to 
be here due to weather conditions and traffic flying here from 
Detroit, as I understand it. So, Mr. Nadler, welcome. You are 
recognized.
    Mr. Nadler. Thank you, Mr. Chairman. Today, this Committee 
will yet again conduct an exploratory discussion of whether 
various allegations against the commissioner of Internal 
Revenue warrant the commencement of formal impeachment 
proceedings. With less than 30 legislative days remaining 
before this Congress enters near 2-month recess, there are 
certainly more pressing matters demanding our attention.
    The horrible attack in Orlando cries out for meaningful 
response from this Committee. Millions of immigrants long to 
come out of the shadows to become legally part of our Nation. 
With national elections looming just months away, the urgent 
need for election reform goes unanswered. I could go on.
    Instead, we have today's hearing, a potential precursor to 
impeachment, itself a highly time- and resource-consuming 
process. Our most recent impeachment took more than a year to 
complete in the House alone.
    This process necessitated the creation of a bipartisan 
taskforce to conduct an independent investigation of the 
proposed charges, even though the judge in question had been 
under investigation for years. The taskforce reviewed the 
evidence, conducted depositions, held hearings, and gave the 
accused individual an opportunity to testify, cross examine 
witnesses, and invite witnesses of his own.
    Then and only then did the taskforce consider the merits of 
the proposed articles of impeachment, and vote to refer them to 
the full Committee. Then and only then did the full Committee 
consider a resolution of impeachment, and refer it to the House 
floor.
    The power of impeachment is a solemn responsibility, 
assigned to the House by the Constitution, and to this 
Committee by our peers. That responsibility demands a rigorous 
level of due process. There are no shortcuts if we hope for a 
successful conviction. Even if we thought that this proposed 
impeachment were a good idea, and I certainly do not, there are 
simply not enough days left in the congressional calendar for 
us to finish the task.
    As for the merits of this proposed impeachment, I would 
like to submit two historical documents into the record. A 1974 
report to the House Judiciary Committee, which accompanied the 
impeachment of President Nixon, and the text of a speech by our 
late friend and colleague, Representative Barbara Jordan of 
Texas from that year.
    Let me add that during the consideration of impeachment 
proceedings against President Clinton, I first reviewed 
everything I could get my hands on, on what was an impeachable 
offense from Justice Burger's book to various other things. I 
found this report the most succinct, best, most accurate 
summary of what is impeachable, the Judiciary Committee report 
from 24 years earlier.
    The 1974 report made an appearance at our first hearing on 
this topic. The proposed resolution before us rests on a novel 
legal premise, that we can impeach a government official for 
gross negligence, rather than personal misconduct. At our last 
hearing, Mr. Conyers asked the gentleman from Utah if gross 
negligence constitutes an impeachable offense.
    He responded, ``I think that is part of it, yes, yes I 
do.'' In fact, in 1974, the House Judiciary Committee came out 
with a report, and it talked about the standard by which an 
impeachable offense should be held, and I happen to concur with 
that--that is the quote from Mr. Chaffetz. We have since gone 
back to review that 1974 report, and it makes no such 
conclusion about this legal theory. The report never once even 
uses the term ``gross negligence.''
    Now I am certain that Chairman Chaffetz did not intend to 
mislead the Committee. His testimony is certainly not grounds 
for discipline by the House, even though he has not yet 
corrected his misstatement. We all agree that the tools at our 
disposal for holding government officials responsible for their 
conduct are designed for more substantial problems. When 
considering the case against Commissioner Koskinen, if I 
pronounce it correctly, it would be wise to apply the same 
standard.
    Which brings me to the statement of the late gentlewoman 
from Texas. As we considered articles of impeachment against 
President Nixon, she warned us of the consequences of allowing 
partisanship to interfere with our responsibilities. At the 
outset of the impeachment process, she said, ``Common Sense 
would be revolted if we engaged upon this process'' for petty 
reasons.
    Congress has a lot to do, appropriations, tax reform, 
health insurance, campaign finance reform, housing, 
environmental protection, energy sufficiency, mass 
transportation. ``Pettiness cannot be allowed to stand in the 
face of such overwhelming problems. . . . It is reason, and not 
passion, which must guide our deliberations, guide our debate, 
and guide our decisions.''
    Those words still ring so true, as does that list of 
unaccomplished problems. With so many problems facing this 
Nation, with so much left to do in this Congress, and so little 
time in which to do it, we seemed to have ignored the counsel 
of the gentlewoman from Texas.
    The continued call to impeach Commissioner Koskinen, 
despite likely failure in the House and near-certain failure in 
the Senate, is, using her word, petty. And it is petty. It is 
beneath the trust that has been placed in this Committee by our 
peers that we would use 2 days exploring an impeachment that is 
never going to happen.
    The plan to censure the commissioner where impeachment has 
failed also seems like a pointless partisan exercise. A House 
resolution does not carry the force of law, or serve any 
purpose other than to defame a good and decent public servant. 
And I should add, to the extent that it did carry any force of 
law, it would be a constitutionally prohibited bill of 
attainder.
    The late gentlewoman from Texas counseled us to let our 
reason guide us, even when the temptation to lash out for 
political purposes is strong. Mr. Chairman, we have so much 
more important work to do. We should focus our attention on 
that task instead, and put this exercise behind us after today. 
I thank you, and I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and without 
objection, all other Members' opening statements will be made a 
part of the record.
    We welcome our distinguished witnesses today, and if you 
would all please rise, I will begin by swearing you in.
    Do you, and each of you, solemnly swear that the testimony 
that you are about to give shall be the truth, the whole truth, 
and nothing but the truth, so help you God? Thank you, and let 
the record reflect that all the witnesses have responded in the 
affirmative.
    Our first witness is Jonathan Turley, professor of law at 
George Washington University.
    Our second witness is Andrew McCarthy, former Assistant 
United States Attorney for the Southern District of New York, 
and currently a senior fellow at the Foundation for Defense of 
Democracies.
    Our third witness is Michael Gerhardt, professor of 
constitutional law, and director of the Program in Law and 
Government at the University of North Carolina, School of Law.
    And our fourth and final witness is Todd Garvey, 
legislative attorney at the American Law Division at the 
Library of Congress.
    Your written statements will be entered into the record in 
their entirety, and we ask that you each summarize your 
testimony in 5 minutes. To help you stay within that time, 
there is a timing light at the table. When the light switches 
from green to yellow, you have 1 minute to conclude your 
testimony, and when the light turns red, that is it, your time 
is up. Mr. Turley, we will begin with you. Welcome.

   TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC 
         INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY

    Mr. Turley. Thank you, Mr. Chairman, Ranking Member Nadler, 
Members of the Judiciary Committee. My name is Jonathan Turley, 
and I am the Schapiro Professor of Public Interest Law at 
George Washington University. It is an honor to appear before 
you today, to talk about the options available to Congress in 
addressing the alleged misconduct of the IRS commissioner.
    Since today's hearing is focused on the options rather than 
the merits of congressional action, I will solely address the 
range of remedies available to Congress, and some of the 
questions raised as to barriers to those remedies facing the 
Committee.
    Having served as lead counsel before the Senate in the last 
impeachment trial, where I was facing the Chairman on the other 
side as part of the prosecution, and having represented the 
House of Representatives recently in a Federal challenge to 
executive overreach, I do not take these remedies lightly. When 
we go down this path, there are many constitutional questions 
and procedural issues to consider.
    I would like, hopefully, today to remove a few of the 
questions that have been raised, which I believe do not have 
merit in terms of barriers to this Committee. But I also want 
to emphasize that this is occurring at a critical time for 
Congress. Congress is facing an unprecedented erosion of its 
authority vis-`-vis the executive branch.
    There is increasing obstruction and contempt displayed by 
Federal agencies with regard to congressional investigations, 
and there is a loss of any credible threat of congressional 
action. To put it simply, Congress has become a paper tiger 
within the tripartite system. The rise of a dominant and 
increasingly unchecked executive branch has created a dangerous 
shift within our system. And that vacuum left by years of 
passivity by Congress has left the system unstable, and often 
dysfunctional.
    Without delving into the details of the current 
controversy, on its face, it is a legitimate subject for 
congressional investigation. The IRS Commissioner is accused of 
effectively weaponizing the IRS to target political opponents. 
President Obama, himself, called that type of allegation very 
serious; in fact, I think he said it was outrageous.
    Now once again, the commissioner has every right to defend 
himself on those allegations. But for my analysis, I am going 
to assume the allegations are true, and focus on what are the 
remedies or options that this Committee can take. The most 
notable and alarming aspect of this case, and something that I 
have testified about before, is that a small organization like 
Judicial Watch was more successful in securing information from 
the Administration than the United States Congress.
    Now, that is perfectly bizarre, that using the Freedom of 
Information Act, which is a relatively weak statutory platform, 
a small organization had greater success because of the 
obstruction of this Committee, and I think that the Framers 
would never have anticipated, let alone condoned, such a 
bizarre situation.
    There is a lack of functional deterrence today to such 
obstruction. In economics, as I talk about, we often look at 
the rate of detection and the size of the penalty, which are 
both balanced in terms of deterrence. Agencies act as rational 
actors, and right now there is no penalty. That is why this is 
occurring, because Congress has been largely dormant.
    I talk in my testimony about the classic means that 
Congress has used in the past, from appropriations or 
legislative slowdowns to confirmation questions to oversight. 
Those remedies have proven to be unsuccessful because of this 
vacuum left by congressional passivity.
    That leaves what are sometimes called nuclear options, 
individual courses taken against officials who commit these 
acts. Things like impeachment, contempt, censure, and fines. I 
focus my written testimony on each of those options, and I will 
be happy to talk about them today.
    Whatever the conclusion of this body is as to the merits of 
these allegations, which I am not here to testify about, I 
think this body should understand that it has the tools to 
respond. If our system is to function, Congress must matter. 
Congressional subpoenas must be enforceable. Conduct that is 
contemptible must be punishable. This body has the means to do 
that. The question is not the means, but the will to do it.
    I thank you for your time today, and I will be happy to 
answer any questions that you may have.
    [The prepared statement of Mr. Turley follows:]
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                               __________
    
    Mr. Goodlatte. Thank you, Mr. Turley. Mr. McCarthy, 
welcome.
    Mr. McCarthy. Thank you, Mr. Chairman, Congressman Nadler. 
Mr. Chairman, let me just clarify, I am not associated with the 
Foundation for Defense of Democracies, and have not been----
    Voice. You have to push the button.

TESTIMONY OF ANDREW C. McCARTHY, FORMER ASSISTANT U.S. ATTORNEY 
             FOR THE SOUTHERN DISTRICT OF NEW YORK

    Mr. McCarthy. Okay, thank you. I just wanted to clarify, I 
do not have affiliation with that organization. I was a Federal 
prosecutor in the Southern District of New York for a little 
over 18 years, retiring from the Justice Department in 2003 as 
the Chief Assistant U.S. Attorney in charge of the Southern 
District satellite office.
    Since retiring from the Justice Department, I have been a 
writer focusing on matters of law enforcement, national 
security, constitutional law, politics, and culture. 
Conceitedly, I tend to come at policy matters from a 
conservative or constitutionalist perspective. Nevertheless, I 
have always believed the application of legal principles and 
precedent should be a nonpartisan endeavor, just as it was when 
I was a prosecutor.
    In my post-Justice Department career, I have written 
several books. One, called Faithless Execution, is about 
impeachment. 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 constitutionally limited executives 
into authoritarian rogues would could undermine our 
constitutional order.
    The Framers settled on high crimes and misdemeanors, a 
standard elaborated on by Alexander Hamilton, who said that 
these were offenses which proceed from the misconduct of public 
men, or in other words, from abuse or violation of some public 
trust. They are of a nature which may, with peculiar propriety, 
be denominated political, as they relate chiefly to the 
injuries done immediately to the society itself.
    I am quite sympathetic to Congressman Nadler's remarks 
about the difficulty of fixing the standard, and I think the 
difficulty of fixing it is because the standard in each 
individual case has to balance three different things: the 
gravity of the misconduct or incompetence alleged, the 
culpability of the official at issue, and the duty of Congress, 
and I think this is the one that is underrated the most and 
needs to be emphasized, the duty of Congress to uphold the 
constitutional order in light of those two considerations.
    Impeachment is one of the principal checks on the damaging 
tendency toward agglomeration of executive power. Executive 
overreach invariably involves the usurpation of congressional 
power, the misleading of Congress, and the abuse of the 
authority granted to the executive by Congress. The Framers 
thus expected that lawmakers would have an incentive to defend 
both the American people and the institution of Congress, 
notwithstanding partisan ties to the President, or the 
executive branch.
    Nevertheless, it must be stressed 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 remove the official at an 
impeachment trial.
    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.
    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. To take the case of 
President Obama, for example, the American people have elected 
him not once, but twice. The public has considerably less 
political investment in an unelected subordinate official 
responsible for carrying out the duties of critical executive 
agencies, the power of which had 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. If the President fails in this duty, it is 
essential that Congress take action. Thank you, Mr. Chairman.
    [The prepared statement of Mr. McCarthy follows:]
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                               __________
                               
                       
                             
    Mr. Goodlatte. Thank you, Mr. McCarthy. Mr. Gerhardt, 
welcome.

  TESTIMONY OF MICHAEL J. GERHARDT, SAMUEL ASHE DISTINGUISHED 
PROFESSOR IN CONSTITUTIONAL LAW & DIRECTOR, PROGRAM IN LAW AND 
                 GOVERNMENT, UNC SCHOOL OF LAW

    Mr. Gerhardt. Thank you, Chairman Goodlatte. I appreciate 
the honor of being here today. It is an enormous privilege to 
appear before you not just now, but each and every time I have 
had the opportunity to come talk to you about important about 
constitutional law.
    As a constitutional law professor, I cannot think of any 
greater responsibility I have, any greater duty I have, to be 
able to talk to you about these important questions we are 
about to talk about today. I have had the chance to talk to you 
about these before, and I am happy to send our conversation to 
today's hearings.
    As I understand it, there are at least two major questions 
that you are trying to answer today, trying to think through. 
The first has to do with who may be impeached, who qualifies as 
an officer of the United States, so that they then may be 
subject to impeachment?
    I think on this score, the report we have from the CRS is 
an excellent guide. I think it tells us quite rightly that the 
critical thing to consider here is whether or not the 
particular officials you are considering as possible subjects 
for impeachment hearing have substantial or significant 
responsibility in their different realms of authority.
    It is certainly true that not every officer, that is to 
say, not every official, is subject to impeachment. And at the 
same time, it is also true, I think, that some officials that 
exercise significant responsibility would be covered.
    I want to also stress, as the CRS report itself stresses, 
that we are moving into uncharted waters here. The fact is that 
as far as impeachment is concerned, this body, the House of 
Representatives, has never impeached a sub-Cabinet-level 
official.
    And so when we do move into uncharted waters, I would ask 
everybody to take a deep breath. I would ask everybody to take 
a pause, and consider in these circumstances what other means 
are available to keep such officials in check. Do we trust 
those other mechanism to work? And if we do not trust those 
other mechanisms to work, I think we have to be candid about 
why we do not trust them.
    The other critical question, of course, you are facing 
today is the basic standard of impeachment. This is not the 
first time, I assume it will not be last time. The House 
Judiciary Committee considers the constitutional standard for 
impeachment. We have a number of different sources we can look 
at that will guide us in trying to figure out what qualifies as 
an impeachable offense. We know from the constitutional 
language, of course, that treason and bribery are covered, but 
those are relatively easily defined, and well understood.
    The critical language we are trying to unpack here today is 
high crimes and misdemeanors. The Framers, I think, believed, 
and early commentators including Justice Storey believed, that 
what those terms referred to are what we call political crimes; 
and political crimes are not self-defining.
    What Justice Storey and others expected is that over time, 
this Committee would develop and effect something akin to the 
common law that would illuminate what would qualify as an 
impeachable offense. Political crimes are offenses against the 
state. Political crimes are serious misconduct, breaches of 
duty, breaches of the public trust.
    But we have to get more concrete. And that is where I think 
your own decision-making over time, your own historical 
practices, are an important source to consult, because in my 
opinion, those also underscore that when we consider whether or 
not particular misconduct qualifies as an impeachable offense, 
it has to at least have two elements: one is bad intent, 
malicious intent and the other is seriously bad conduct.
    And so if you are looking at any particular situation, any 
particular circumstance, I think it is important to ask whether 
or not you have each of those present based on credible, 
serious fact-finding, before you can approve any kind of an 
impeachment article.
    To go further, I think it is also worth considering a very 
critical question. I think this is the question I am sure you 
always ask yourselves before you undertake an important 
responsibility. And that critical question is, what kind of 
precedent are you going to create if you move forward, if you 
take positive action here?
    In my opinion, and I am just a law professor, but in my 
opinion, I think gross negligence, or gross incompetence, does 
not qualify as an impeachable offense. That is a step onto the 
slippery slope of offenses I do not think the Framers and I do 
not think the common law support as impeachable offenses. I am 
happy to answer any other questions you have. Of course, you 
have my written statement.
    You can ask questions about that or anything else today. 
Thank you.
    [The prepared statement of Mr. Gerhardt follows:]
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                               __________
                               
    Mr. Goodlatte. Thank you, Mr. Gerhardt. Mr. Garvey, 
welcome.

 TESTIMONY OF TODD GARVEY, LEGISLATIVE ATTORNEY, AMERICAN LAW 
                 DIVISION, LIBRARY OF CONGRESS

    Mr. Garvey. Thank you, Mr. Chairman. Chairman Goodlatte, 
Mr. Nadler, and Members of the Committee, the Constitution 
establishes a general framework governing the execution of 
impeachment. Unlike the law-making function, the impeachment 
power is given wholly to Congress, with the house exercising 
the sole power of impeachment, and the Senate the sole power to 
try those impeachments.
    But the Constitution also establishes a number of 
limitations and safeguards on the use of the impeachment power. 
Among the limitations are that the officials eligible for 
impeachment are limited to the President, Vice-President, and 
those who qualify as civil officers, and that the offenses for 
which an eligible official may be impeached and removed are 
limited to treason, bribery or other high crimes and 
misdemeanors.
    Among the safeguards are the requirement that the two-
thirds of the Senate concur in any impeachment conviction, and 
that the consequences of conviction shall not extend further 
than removal from office and disqualification from holding a 
future Federal office.
    In a historical sense, Congress has formally exercised its 
impeachment power on a limited number of occasions. The House 
has impeached 19 government officials. The vast majority of 
those impeachments, 15 of the 19, have been Federal judges. The 
other four impeachments consist of two Presidents, Andrew 
Johnson and William Clinton, one Senator, William Blunt, and 
one Cabinet official, Secretary of War William Belknap. Eight 
of the 19 officials who have been impeached by the House have 
been convicted by the Senate, all of whom were Federal judges.
    It would appear that the general impeachment framework 
leaves room for interpretative decisions by Members of both the 
House and the Senate in the exercise of their constitutionally 
accorded powers. Among the uncertainties in that framework is 
the question of which offenses constitute the type of high 
crimes and misdemeanors that establish grounds for an 
impeachment.
    In considering that question, then-Congressman Gerald Ford 
famously stated that an impeachable offense is whatever a 
majority of the House of Representatives considers it to be at 
a given moment in history. While there may be some practical 
truth in that statement, the House's views of what constitutes 
an impeachable offense, both current and historical, carry 
great weight.
    This proposition finds support in both the Constitution and 
its vesting of the sole power of impeachment in the House, and 
the Supreme Court's statement in Nixon v. United States that 
the judiciary was, ``not chosen to have any role in 
impeachments.''
    For these reasons, it would appear that the House and 
Senate precedents likely form a prudent body of authority for 
interpreting the scope of the impeachment power. The 
impeachment precedents, however, do not establish fixed 
standards for the actions that constitute an impeachable 
offense.
    It is, therefore, difficult to make general assertions 
based on past practice as to the type of conduct that satisfies 
the constitutional requirement. For example, House precedents 
do not appear to speak directly to allegations of misconduct in 
the context of a Congressional investigation. Perhaps the 
closest analogue is the article of impeachment approved by the 
House against Judge Thomas Porteous in 2010 for false 
statements made to the Senate during consideration of his 
judicial nomination. The House has also previously approved 
articles of impeachment against various Federal judges for 
false or perjurious statements, but generally when those 
statements have been made during a criminal proceeding or 
before a grand jury.
    In addition, it should be noted that this Committee 
approved an article of impeachment against then-President 
Nixon, alleging that he had withheld information subpoenaed by 
a congressional Committee. He resigned, however, before the 
House voted on the Committee's recommendations.
    Finally, during the Clinton impeachment, the House, though 
approving articles of impeachment alleging perjury and 
obstruction of justice, rejected an article of impeachment 
approved by this Committee relating to allegations that the 
President gave misleading responses to congressional inquiries.
    In closing, I would note that censure may be a tool 
available to the House as either an alternative to or 
supplement for impeachment of an executive branch official. A 
censure resolution can be in the form of a one-house or 
concurrent resolution, and may include a formal reprimand of 
the executive branch official, or express the House's opinion 
that the official should resign or be removed by the President.
    A censure resolution is not legally binding, but may be 
significant for its symbolic impact. Although censure has a 
long-standing history, the House and Senate have adopted only a 
handful of these resolutions. To highlight one pertinent 
example, in 1886, the Senate censured the sitting Attorney 
General based on his refusal to provide certain records to the 
Senate.
    This concludes my prepared statement. Thank you for the 
opportunity to appear before the Committee, and I will be happy 
to answer any questions you may have.
    [The prepared statement of Mr. Garvey follows:]
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    Mr. Goodlatte. Thank you, Mr. Garvey. We will now begin 
questioning of the witnesses under the 5-minute rule, and I 
will begin by recognizing myself.
    Mr. Turley, welcome back before this Committee. In your 
opinion, if the Senate will not remove an impeached official 
from official--in other words the House had taken action, the 
Senate now has before it--what are the most practical options 
for the House, in advance of reaching that point, in addressing 
officials who may have committed misconduct?
    Mr. Turley. Thank you, Mr. Chairman. As my written 
testimony discusses, the most obvious response to alleged false 
statements or obstruction of an investigation was traditionally 
a contempt sanction, and I talk in my testimony at length about 
how the executive branch has effectively gutted that option for 
Congress, something that I believe Congress should serious look 
at in terms of its inability to get contempt prosecutions 
because of obstruction by the Justice Department.
    I also talk about the possibility of financial penalties, 
from fines to pensions. That creates some different issues, 
depending on whether they are vested interests, whether they 
are based in statutory authority, or implied congressional 
authority.
    Another obvious choice would be censure. I disagree with 
some people who have said that censure is not constitutional 
for this body to consider. I find that completely meritless. It 
is clear in my view that this body can censure an executive 
official. In fact I find it rather bizarre to suggest that this 
body can condemn actions of countries, agencies, but not 
individuals. I do not see how you can read that into the 
Constitution. But I believe that----
    Mr. Goodlatte. Let me interrupt. I will come back to that, 
but I first want to ask another question of Mr. McCarthy. Mr. 
McCarthy, you state in your written testimony that the Framers 
were deeply worried about maladministration, including 
overreach, lawlessness, and incompetence; that they could 
inflate the constitutionally limited executive into an 
authoritarian rogue who undermines our constitutional order.
    Professor Gerhardt, on the other hand, writes in his 
written testimony--and he also stated it in his oral 
testimony--that the Founders considered but rejected making 
certain high-ranking officials impeachable on broader grounds 
such as maladministration. Who is right on that point? Did the 
Framers consider maladministration an impeachable offense, or 
not?
    Mr. McCarthy. I think, Mr. Chairman, that it is more 
fitting, perhaps, to say that one answer is more complete than 
the other. Certainly the Framers considered maladministration, 
but they rejected it as the standard. And that is part of why 
they settled on high crimes and misdemeanors. They were 
concerned of the promiscuous tendency of a standard like 
maladministration to be applied in trifling circumstances 
rather than really serious ones.
    On the other hand, I think it is interesting that Professor 
Gerhardt cited to Justice Storey, and yet did not quote to you 
what Justice Storey actually said, in saying that gross neglect 
did not qualify. Here is what Justice Storey actually says--
``Impeachment applies to political offenses growing out of 
personal misconduct or gross neglect, or usurpation or habitual 
disregard of the public interests, various in their character, 
et cetera.''
    Mr. Goodlatte. Let me interrupt you there, since I have a 
limited amount of time, and ask Mr. Gerhardt if he wants to 
respond to that.
    Mr. Gerhardt. Sure, thank you. I think I probably have 
quoted Justice Storey in a number of different respects, 
including the book I wrote on impeachment. But more pertinent 
to this, I think, is that the critical thing I think to keep in 
mind here is that the notion of high crimes and misdemeanors 
was not fixed or precisely defined at the time of the 
ratification.
    And over time, as I said in my oral testimony, I think in 
my written, too, that in effect, I think what the Framers 
expected was the evolution of a kind of body of common law. 
Your decisions over time would become important. So I think you 
cannot point to one particular time in the past, and say, ``Oh, 
here is where the meaning got fixed.'' It is going to evolve 
over time. I believe, it is my belief, that over time that 
language in the Constitution comes to mean you need both bad 
intent and a bad act. But I think that is how I construe the 
common law.
    Mr. Goodlatte. Let me interrupt you, because I want to ask 
a question of Mr. Garvey, and my time is running down. Mr. 
Garvey, Mr. Turley mentioned a censure, in his belief that that 
is an appropriate remedy for Congress to use. What do you 
believe about censure? Is it a remedy that is available to 
Congress in instances such as these? And I will go back to 
everyone else and ask them to respond to that as well.
    Mr. Garvey. Thank you, Mr. Chairman. Yes, it seems so long 
as it is in the form of a one-house resolution or a concurrent 
resolution that is nonbinding that would be consistent with the 
Constitution. We have a number of examples in history in which 
either the House or Senate have censured executive branch 
officials, including two Presidents.
    Mr. Goodlatte. And including sub-Cabinet level employees of 
the executive branch, is that not correct?
    Mr. Garvey. That is right. A sitting Attorney General, and 
as I recall----
    Mr. Goodlatte. Attorney General would be a Cabinet-level 
appointee. But I believe in recent times there had been a 
censure of a sub-Cabinet level employee.
    Mr. Garvey. My understanding of the situation is that the 
last censure resolution approved by either the House or Senate 
was during the Teapot Dome Scandal in the 1920's. I am not sure 
of an approved censure resolution after that.
    Mr. Goodlatte. Okay, thank you. Mr. Turley, I think you 
have answered already, but quickly, if you have anything to 
add.
    Mr. Turley. The only thing I would add is that in terms of 
censure, I think one thing that should be avoid is I do not 
believe that censure is a creature of the impeachment 
provisions. And I believe that creates some uncertainty. I 
think that Congress has the inherent authority to censure. So 
one of the things that I encourage the body to consider is if 
you are going to create a censure resolution, it should be in 
regular order. It is not part of an impeachment process. I do 
not think you want to say that your power to censure is derived 
from the impeachment provisions.
    Mr. Goodlatte. Mr. McCarthy?
    Mr. McCarthy. I agree with Professor Turley about Congress' 
power to censure. But to my mind, it is almost beside the 
point, because censure is a two-way street. Impeachment is a 
two-way street. The question is not just how much misconduct 
has been committed by the executive branch; it is whether this 
branch is up to its responsibility to check executive 
overreach. So if you censure somebody who deserves to be 
impeached--and I do not have a view on this particular case, 
because I have not investigated it--but it is just as 
censurable to my mind for Congress to fail in its duty as it is 
for the official who has committed the conduct meriting 
censure.
    Mr. Goodlatte. Mr. Gerhardt?
    Mr. Gerhardt. On the censure question, I think we need to 
be clear about a couple things. The first is what we mean, of 
course, by censure. I believe what we are all saying, and this 
is at least what I would say, is that censure, in our 
conversation, is referring to a nonbinding resolution. As such, 
of course, you approve such things all the time. Having said 
that, I would caution this Committee to be very careful in the 
way it words its censure resolution, and what it intends for 
that resolution to be or to do.
    The critical thing to keep in mind is there is not much 
distance between a censure resolution, as we have just defined 
it, and a bill of attainder. A bill of attainder would be a 
decision by this body, in lieu of a trial, to exact or impose a 
sanction on an official. I do not believe the House Judiciary 
Committee, for that matter the House or Senate, has that 
authority. So, the thing to be careful about is the point at 
which a resolution that says something might be bad, or you are 
expressing disapproval, and your effort to impose a sanction, 
which I think would be struck down as a bill of attainder.
    Mr. Goodlatte. Thank you. My time has expired. The Chair 
recognizes the gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. Professor Gerhardt, 
can you walk us through the process of impeachment rapidly? 
That is the rapidly walk, not rapidly impeach, in the House of 
Representatives? What are the obligations of the House 
Judiciary Committee? Are we obligated to independently 
investigate the allegations, do our own fact-finding, conduct 
interviews and depositions?
    Mr. Gerhardt. You are certainly entitled to do that. Yes, 
sir.
    Mr. Nadler. Are we obligated to do that? Or can we rely on 
somebody else?
    Mr. Gerhardt. I think whether you are obligated or not is 
going to be subject to some interpretation. But I think, when 
the House Judiciary Committee does not do its own fact finding, 
it undermines the credibility of what it has done.
    Mr. Nadler. Thank you. And what due process considerations 
do they owe to the accused official? Does he have a right to 
counsel before this Committee, opening statements and hearings, 
right to question witnesses, the right to introduce witnesses?
    Mr. Gerhardt. I certainly think that would all be true. 
Yes, sir.
    Mr. Nadler. That would all be appropriate?
    Mr. Gerhardt. Oh, it would be quite appropriate.
    Mr. Nadler. And what would be the consequences should an 
impeachment proceeding that failed to honor this due process 
for the accused?
    Mr. Gerhardt. Well, if you do not honor the due process 
rights of the accused, or give the target of an impeachment 
some opportunity to defend himself, or herself, I think what 
the House Committee ends up doing, again, is seriously 
undermining what it is attempting to do.
    Mr. Nadler. And, given what you just said, and your 
understanding of the process, do you think it is reasonably 
possible for this Committee to undergo a successful independent 
review of the accusations against Commissioner Koskinen in the 
remaining weeks of this Congress?
    Mr. Gerhardt. Well, you are in a better position than I to 
say that. But, with time growing short, it is very difficult to 
do. Let me just emphasize two quick things. Impeachment is 
supposed to be a last resort. It is supposed to be something 
you do after you have explored all the other options. And the 
other thing is, I think, of course, it should be undertaken 
carefully and deliberately, and thoughtfully.
    Mr. Nadler. Thank you. Now you have written that what kinds 
of acts constitute high crimes, and misdemeanors, an extensive 
literature on that. We went through that in 1974, in 1998. 
Basically, political acts that threaten liberty, separation of 
powers, the structure of the state, essentially?
    Mr. Gerhardt. They might include some indictable crimes. 
But, of course, they also include things that are not 
indictable.
    Mr. Nadler. Right.
    Mr. Gerhardt. Some of things you just mentioned--political 
acts which undermine the integrity, undermine the 
constitutional system. To quote from the conventions 
themselves, ``acts that would subvert the Constitution.'' I 
would just note that all the examples that were mentioned in 
the constitutional and ratification conventions had to do with 
serious political acts that were subverting the Constitution.
    Mr. Nadler. And does Commissioner Koskinen's alleged 
conduct rise to this level?
    Mr. Gerhardt. I think the fact finding that has been 
undertaken so far, at best, shows perhaps, as my friend Charlie 
Jay at Indiana Bloomington described in one newspaper article I 
read, maybe that he might be--the subject of impeachment could 
be slow and stupid, but that does not mean it makes the person 
impeachable. In other words, you can make mistakes. You can 
even have bad judgement. But those things are not----
    Mr. Nadler. You can even be grossly negligent.
    Mr. Gerhardt. You can even be grossly negligent. That does 
not rise, at least in my opinion, to an impeachable offense. 
Keep in mind, some things could be misconduct. That falls short 
of being an impeachable offense.
    Mr. Nadler. Okay. Now, in your written testimony, you 
state, ``A principal concern among the Framers was to 
distinguish the Federal impeachment process from the English 
one, in which anyone could be impeached for any reason.'' How 
did the framers make that distinction?
    Mr. Gerhardt. Well, they made that distinction because they 
were quite familiar with the British system of course. And they 
had it in front of themselves to some extent as lawyers, and as 
they entered into the process of the Constitutional Convention, 
and they did not want their American system to be like the 
British system. They, actually, were trying to narrow who would 
be subject to impeachment, narrow the sanctions that would be 
available, and narrow the grounds on which it would be 
possible.
    Mr. Nadler. And has the House ever impeached anyone on the 
theory of gross negligence?
    Mr. Gerhardt. No, sir.
    Mr. Nadler. What would be the consequences for setting that 
precedent?
    Mr. Gerhardt. The House has never impeached anyone for 
gross negligence, or I think, anything akin to it. And I think 
opening the door to that actually, I think, is going to present 
all sorts of serious problems. The impeachment process was not 
meant to be a kind of roaming commission that would then cover 
all kinds of mistakes or misconduct. It is for the most serious 
things.
    Mr. Nadler. Now, House Resolution 737 was introduced to 
censure the commissioner, and expresses the sense of the House 
that the commissioner should give up his government pension, 
and any other benefits. Does this resolution carry with it the 
force of law? And, if it did, would it not be obviously and 
totally a bill of attainder?
    Mr. Gerhardt. As you described it, that would be a bill of 
attainder.
    Mr. Nadler. Because we have a 1954, I think, Supreme Court 
decision that--a provision in an appropriations bill, that said 
no funds here appropriations should be used to pay the salaries 
of two named individuals. That was a bill of attainder, was it 
not?
    Mr. Gerhardt. Right. Yes, sir.
    Mr. Nadler. So, this is clearly a bill of attainder to the 
extent that it has any force of law?
    Mr. Gerhardt. Yes, sir.
    Mr. Nadler. Does anyone disagree with that? No. My time is 
expired. I just want to make one historical correction, because 
I hear this all the time and it really bothers me. Mr. McCarthy 
said the Constitution was enacted to limit government power and 
provide for liberty. No. The Articles of the Confederation were 
enacted for that. The Bill of Rights was enacted for that.
    The Constitution was enacted to strengthen government power 
to enable the central government to lay taxes, and to function 
effectively. We put limits on that through the Bill of Rights, 
but the Constitution was enacted for the opposite purpose. Just 
a historical note. Thank you. I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from Iowa, Mr. King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I thank the witnesses 
for testifying here today. It is some pretty fascinating 
perspectives that I am hearing. I go first to Mr. Garvey. And I 
want to make sure that I was listening carefully. You spoke of 
the impeachment of President Clinton. Was that your assertion 
that the Senate rejected the House impeachment resolution?
    Mr. Garvey. Sorry. What I was saying, Congressman, was that 
this Committee approved four articles of impeachment against 
President Clinton, perjury before the Grand Jury, perjury in a 
civil deposition, obstruction of justice, and providing false 
and misleading statements to a congressional Committee. The 
House, as a whole, approved only two out of those four 
articles.
    Mr. King. And the Senate? Did you speak to the Senate's 
conclusion?
    Mr. Garvey. I did not speak to the Senate's conclusion.
    Mr. King. Okay. I am glad I clarified that, because I 
wanted to make that point. And it happens to go back to an 
earlier conversation I had before this hearing began with 
Professor Turley. And, just to be able to put it into the 
record that, when we got a vote in the United States Senate on 
those charges that they took up and determined to try President 
Clinton on, all of those questions that came before the Senate 
were wrapped up into one question, which was, ``Is he guilty of 
these various charges?
    And, if so, is it in your judgement that it is worthy to 
remove him from office, if he is guilty?'' And it allowed every 
senator to cloak themselves in whatever argument suited them 
politically. And the American people never got a verdict from 
the United States Senate. And that is a big disappointment to 
me, that one of the highest constitutional duties that can be 
served up to the United States Senate did not have history 
record a verdict after a trial in the Senate. So, I bring that 
point up for that reason.
    Mr. Chabot. Would the gentleman yield? Would the gentleman 
yield for a moment?
    Mr. King. Yes, I would.
    Mr. Chabot. I thank the gentleman for yielding, and I will 
be very quick. Also, to add to the record, I might note, having 
been one of the House managers in the impeachment of President 
Clinton, the House managers were limited to just three 
witnesses. And those all had to be done by video tape. So, our 
hands were, to a great extent--we were handcuffed. I thank the 
gentleman.
    Mr. King. I thank you. And reclaiming my time, I wish I had 
more time. I will yield to the gentleman from New York.
    Mr. Nadler. I am just curious about what you just said. You 
said the Senate never reached a verdict. The Senate voted down 
the Articles of Impeachment. Is not that a verdict?
    Mr. King. No. And I am reclaiming my time. I am happy to 
take that up at another time. I would be very interested to do 
so. And Mr. Nadler knows I mean that. So, I turn instead to Mr. 
Gerhardt. And I will make this assertion, that, as an 
employer--and I have been since 1975--our employees are at will 
employees. Now, we can dispatch them, or fire them, remove 
them, from their office for any reason or no reason at all, 
provided we are not violating a specific law.
    And I would put this Congress in that kind of a concept 
with regard to the executive branch employees who are going 
outside the bounds of their job violating the Constitution. And 
your position was, I believe, that there needs to be malicious 
intent, and they have to be serious bad conduct.
    I would assert, instead, that Congress gets to decide what 
that is. And we can be as specific as we like, or as vague as 
we like. But I would submit that, if Congress decided to 
impeach perhaps the director of the IRS, that we could do so 
for any reason or no reason at all. And it comes back to the 
political foundation of what would the consequences be if 
Congress just said, ``We decided to have a closed hearing, and 
we are going to impeach the director of the IRS,'' to get this 
over with and send a message to the President and the American 
people we are not going to mess with this kind of persecution 
against, especially, conservatives. What do you think the 
consequences would be if Congress took that position?
    Mr. Gerhardt. Well, sir, so two quick thoughts. The first 
is in the corporate world, in the corporate example, board of 
directors are not able to fire CEOs for gross negligence or 
gross incompetence. There has to be at least deliberate 
indifference. In other words, there has to be some bad faith.
    The second point is that all powers, including the 
impeachment power, are limited. The Constitution limits every 
governmental authority. And so, again, you cannot impeach, at 
least----
    Mr. King. What would the consequences be, if Congress 
decided to impeach without making a public case, and just 
simply said, ``We have our reasons, and we have impeached?'' 
What would the consequences be to Congress for such an act, 
presuming that the Senate removed from office?
    Mr. Gerhardt. I am sorry, presuming the Senate actually 
removed somebody after that?
    Mr. King. Yes.
    Mr. Gerhardt. Well, I think the consequences are comprised, 
in part, by what the Senate does. But if the House simply 
impeaches, and does not have evidence, and does not back it up, 
the consequences, actually, are political. Not like a court 
could strike that down, I do not believe. And you take the 
political heat in a sense, the political consequences for that. 
But, also, one consequence is how the Senate treats what you 
do.
    Mr. King. Watching as my time has expired, I would just 
submit that I appreciate that answer, because in the end of 
this, it is a political question before this United States 
Congress, the House, and the Senate. And, when the other 
branches of government violate the Constitution, it falls back 
to us to make the political decision. And that is one of the 
very few ways that we can enforce.
    And, if I had more time, I would pose a question as to what 
would happen if Congress would expand its powers into the 
executive and the judicial branch, in the fashion that the 
judicial and the executive branch are expanding their powers 
into our legislative branch. But I will leave that as a 
rhetorical question, and yield back the balance of my time. 
Thank you, Mr. Chairman.
    Mr. Goodlatte. The Chair recognizes the gentlewoman from 
California, Ms. Lofgren, for 5 minutes.
    Ms. Lofgren. Thank you, Mr. Chairman. You know, as I was 
listening, I was thinking this question of impeachment is 
something that, oddly enough, my career has intersected several 
times, starting in on the Nixon impeachment, when I was a young 
staffer working for Congressman Don Edwards.
    And, at the time, the Judiciary Committee published, 
really, quite an excellent report on the history of impeachment 
going back to its use in Great Britain, the Constitutional 
Convention. And I use that as a guide. I thought it was so 
thoughtful. And I wonder, if it is possible, Mr. Chairman, to 
ask unanimous consent to put that--oh, you already put that 
into the record.
    You know, we started this Congress reading the 
Constitution. And here is the guiding provision of the 
Constitution, Article II, section 4, ``The President, Vice-
President, and all civil officers of the United States shall be 
removed from office on impeachment for and conviction of 
treason, bribery, or other high crimes and misdemeanors.'' Now, 
those words have a meaning.
    And, if we look back into the history of our country, I 
think it is correct--and Mr. Gerhardt, correct me if I am 
wrong--I do not think we have ever impeached a person, a civil 
officer below the Cabinet level. And I do not think we have 
impeached a Cabinet-level official since 1876. Is that correct?
    Mr. Gerhardt. That is true.
    Ms. Lofgren. And the meaning, as evidenced in the 
historical record, of the words, ``high crimes and 
misdemeanors,'' is basically some activity that is so severely 
wrong that it undercuts the capacity of the structure of 
government. It is that serious. Is not that correct?
    Mr. Gerhardt. Yes, ma'am. It is like attacking the 
constitutional government.
    Ms. Lofgren. Yeah. It would really destroy the three 
branches.
    Mr. Gerhardt. Right.
    Ms. Lofgren. And I look at the whole history of our 
country, our ups and downs, the last time this was used for a 
Cabinet level official, 1876, and I am going, ``If we were''--
and I think the gentleman from Iowa is right. I mean, the 
Congress can do whatever it wants when we have a vote, but we 
should be mindful of the impact. If we depart from our history, 
and from our Constitution as determined and interpreted by our 
history, then we chart a different kind of America than we have 
had in the past.
    And so, I guess, my question is if we were to utilize, in a 
very radical way, the tool of impeachment to basically start 
removing civil officers through impeachment, could that not 
have the impact, Mr. Gerhardt, of really changing the balance 
of power between Congress and the executive, so that the 
executive would become less able to act, and really be a 
departure for the last couple hundred years of our history?
    Mr. Gerhardt. I think the answer, of course, would be yes. 
That is one interpretation of what happened when the Congress 
tried to impeach and remove President Johnson. That episode is 
largely understood as an attempt to sort of take out a policy 
difference between Congress and the President through the 
impeachment process, which I think history has treated as 
inappropriate.
    One important check, I think, on this body, as everybody 
here knows, is history, the historical judgement. It is one 
reason why I took the liberty of ending my written statement 
with a quote from the musical Hamilton, saying, ``History has 
its eyes on you.'' It is not just lyrical. I think it is 
actually true. It has its eyes on all of us. It holds all of us 
accountable. So, if the House or anybody else missteps, history 
is a cold hearted judge in giving you a grade or a sanction on 
whatever it is.
    Mr. Goodlatte. Will the gentlewoman yield?
    Ms. Lofgren. I am almost out of time. I would just like to 
close, since I know I just have less than a minute left, by 
indicating that, you know, I think it would be--when looking 
back on the Nixon impeachment, it ended up being bipartisan, 
because there was a judgement, not just on one party versus 
another, that there had been a serious problem here that was 
undercutting the actual structure of government.
    And I guess, if you look at the history, when you have a 
partisan action in a civil officer, I think it is an alert that 
there is a problem, that it is maybe based in a political 
difference, not in a serious effort to protect the integrity of 
the constitutional system. And, with that, I see my red light 
is on, and I yield back, Mr. Chairman.
    Mr. Goodlatte. The Chair thanks the gentlewoman and 
recognizes the gentleman from Texas, Mr. Gohmert, for 5 
minutes.
    Mr. Gohmert. Thank you, Mr. Chairman. And I could not agree 
with friend from California more. And that is why, in a 
previous hearing in this room, I pointed out that, when we 
found out from the IG Inspector and the Department of Justice 
that there could have been thousands of abuses of the national 
security letter, I called the White House, talked to the Chief 
of Staff, and said, ``This is outrageous. We are not going to 
defend this. You need a new Attorney General.''
    And I am waiting for a Democrat to stand up and say, ``We 
have been lied to in Congress, things have been obfuscated, 
hidden, and we are not going to stand for this either.'' But it 
has become so partisan that one of my other friends in Congress 
has pointed out, if Republicans had rallied around Richard 
Nixon the way Democrats have rallied around abusers in this 
Administration, Nixon would have finished out his term, 
Republicans would have kept control that they lost, so many of 
the liberal accommodations that came through legislation in the 
aftermath of Watergate would not have occurred, we would not 
have had Jimmy Carter, and history would be different.
    But, fortunately, most of us believe right is right, wrong 
is wrong, you are not supposed to lie. But Mr. McCarthy, you 
taught me a great deal from your book ``Faithless Execution.'' 
I know this a lot to ask, but in a nutshell could you give us 
the premise of your book? And I know you have touched on it in 
your written and oral testimony, but just the book itself, the 
nutshell lesson to take away.
    Mr. McCarthy. Congressman Gohmert, it would be that 
impeachment is an indispensable ingredient of the governing 
framework that the Constitution provides for us, which 
requires, if it is to work, that the branches can hold each 
other in check.
    And, if you get to a point where the major checks that 
Congress has given on executive overreach, the power of the 
purse, and impeachment being the main ones--if you get to a 
point where you basically say, ``We cannot use the power of the 
purse because that will shut down the government, and we can 
never impeach anyone,'' then you are greenlighting misconduct, 
because those are basically the only ways that you have, as a 
practical matter, to hold the executive branch in check.
    And the point is not just, again, the misconduct of the 
official, because every time misconduct of an executive branch 
official comes up, and a proceeding like this comes up, you are 
on trial as much as the official you are inquiring into is on 
trial.
    The question is whether this body can perform its 
constitutional function of keeping the executive branch in 
check. If it does not, we no longer have the same system of 
government. You know, there was some dialogue back and forth a 
moment ago about whether using impeachment in certain instances 
would shift our balance of power. The balance of power is 
already shifted. You have executive overreach to a fair thee 
well.
    And, essentially, nothing is done about it, because the 
thought on the Hill appears to be that the remedies that you 
would have to use to check the President are not worth 
invoking. And, as a result, you encourage and have more and 
more lawlessness.
    So, impeachment is a political remedy, not a legal one. And 
what that essentially means is you have to give as much process 
in a proceeding like this as is necessary to keep the 
proceeding politically viable, that it will have integrity that 
the public will respect the outcome of it. But what that also 
means, as I argue in the book, is that you can have 1,000 high 
crimes and misdemeanors. If you do not have public consensus 
that the official should be removed, then the official will not 
be removed.
    Mr. Gohmert. We have seen that.
    Mr. McCarthy. But it is really up to you to highlight for 
the public why the misconduct at issue threatens our 
constitutional order.
    Mr. Gohmert. Well, Professor Turley, it seemed like most of 
my career you were testifying the positions that were more 
favorably accepted by my Democratic colleagues. But the great 
thing I have appreciated about you is that you are a man of 
integrity, you step forward and say what you believe no matter 
who is offended, or who does not like what you say. And I think 
that if we do not take some steps here to protect our 
jurisdiction, I am afraid we lose the ability to do what you 
have done. But my time expired, so I cannot yield back what I 
do not have.
    Mr. Goodlatte. The Chair thanks the gentleman and 
recognizes the gentleman from Georgia, Mr. Johnson, for 5 
minutes.
    Mr. Johnson. Thank you. Thank you all for appearing today 
to testify in this hearing, which I liken to a dog chasing its 
tail. I mean, you know, a dog has got a flea on its tail, or a 
tick or something, and it gets so exasperated and wound up that 
it just starts chasing its tail around. And that is what this 
hearing kind of reminds me about, because it is not really--
this is not an impeachment hearing, is it, Professor Turley?
    Mr. Turley. No. It is not an impeachment hearing.
    Mr. Johnson. Yeah. And there is some obligations that the 
Judiciary Committee must fulfill in terms of actually 
instituting an impeachment proceeding against someone. Is not 
that correct?
    Mr. Turley. As far as I understand, this is not part of a 
formal impeachment procedure.
    Mr. Johnson. Yeah. I mean, we have got an obligation to 
independently investigate the allegations against the accused 
official in this Committee if it were an impeachment process. 
Is that not correct?
    Mr. Turley. The House is given that responsibility to 
determine if there is a basis for impeachment.
    Mr. Johnson. The Judiciary Committee of the House of 
Representatives is given that responsibility, is that not 
correct?
    Mr. Turley. That is my understanding. Yes.
    Mr. Johnson. And what due process considerations would we 
owe an accused official in a House Judiciary impeachment 
proceeding? We would have to afford that individual the right 
to counsel, is that not correct?
    Mr. Turley. Well, the question of due process is a little 
tougher in the sense that----
    Mr. Johnson. My question is just we would have to give that 
individual the focus of our impeachment inquiry an opportunity 
to be represented by counsel, is that not correct?
    Mr. Turley. I am not too sure, because the Constitution 
itself does not specify that you have that right.
    Mr. Johnson. Well, it has been our custom.
    Mr. Turley. It has been our custom. We were on opposite 
sides in the Porteous impeachment.
    Mr. Johnson. Yes. And that----
    Mr. Turley. You certainly did afford that opportunity to my 
client.
    Mr. Johnson. And it is only correct that we would do that. 
We would have the obligation that target a right to opening 
statement. Right?
    Mr. Turley. In the past there has been due process given to 
the accused.
    Mr. Johnson. And we would give the accused the right to 
cross-examine any witnesses against him or her, is that not 
correct?
    Mr. Turley. That is a decision of the Committee. But, in 
the past, that has occurred.
    Mr. Johnson. And that person would have a right to present 
their own witnesses in an impeachment proceeding, is that not 
correct?
    Mr. Turley. Once again, if the Committee allows it, and it 
certainly has happened in the past.
    Mr. Johnson. Well, you could not impeach somebody without 
giving them the right to have an attorney, and the right to 
confront the witnesses against them through cross examination. 
Is that not a fact?
    Mr. Turley. Well, if you are asking as a constitutional 
matter whether you have to give that right to an accused, my 
answer is probably no, that the Constitution is not part of----
    Mr. Johnson. Well, I am sure, Professor Turley, that if you 
were representing the accused, as you were with the Porteous 
impeachment process, you would insist on those basic notions of 
due process.
    Mr. Turley. I would indeed.
    Mr. Johnson. I know that you would. And so, what we are 
doing here, has no relationship to an impeachment proceeding. 
We should not give the public the false impression that this is 
about impeachment. This is about the dog chasing its tail.
    Now, how long have we been chasing the tail on this case? 
It was back in, what, March of 2015--well, October of 2015, 
when the Department of Justice declared that no criminal 
charges should issue out of the original investigation. Is that 
not correct, Professor Gerhardt?
    Mr. Gerhardt. Yes, sir.
    Mr. Johnson. And, since then, Congress has been chasing its 
tail round and round----
    Mr. Franks. Will the gentleman yield?
    Mr. Johnson. No, I will not. And here we are, while we have 
had one mass shooting after another in this country since 
October of 2015, we have had Congress, instead of holding 
hearings on what we can do to protect the public from gun 
violence, what kind of gun reform legislation we can even have 
a hearing on and consider why would it be that an individual 
who has been on a Federal terrorism watch list twice would be 
in a position of purchasing a firearm no questions asked--not 
one hearing on that. But here we continue to chase our tail on 
the IRS so-called scandal. With that, Mr. Chairman, I will 
yield back in exasperated frustration.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Arizona, Mr. Franks, for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman. Thank you all 
for being here. Mr. McCarthy, if it is all right, I will start 
out with you. You state in your written testimony that the 
framers were deeply worried that ``maladministration--including 
overreach, lawlessness, or incompetence--could inflate the 
constitutionally-limited executive into an authoritarian 
rogue,'' I think is the quote you used, ``who undermines our 
constitutional order.''
    Professor Gerhardt, on the other hand, he writes in his 
written testimony that the founders considered but rejected 
making certain high ranking officials impeachable on broader 
grounds, such as maladministration. Who do you suggest is right 
on that point? Did the Framers consider maladministration an 
impeachable offense or not?
    Mr. McCarthy. Congressman, I will just repeat what I said 
earlier. The framers considered maladministration and then 
adopted high crimes and misdemeanors. Their fear was that a 
standard like maladministration could be promiscuous and could 
be applied to trifling misconduct, or incompetence. High crimes 
and misdemeanors was more of a term of art.
    They had the example of the Hastings impeachment and Edmund 
Burke's conduct of it as a fairly fresh example at the time. 
So, I believe that is why maladministration was not the term 
that they settled on, even though it was the concept they were 
driving at.
    Mr. Franks. Yeah. Professor Turley, do you have any 
perspective on that?
    Mr. Turley. Certainly. Actually, Madison referred later to 
maladministration, in talking about the standard. There is a 
difference between what you use as the formal standard. And 
there was a concern of putting maladministration into the 
language, because it tended to be too broad. But Madison also 
talked about incapacity, negligence, and perfidy as examples of 
things upon which you could be removed. Alexander Hamilton 
referred to abuse or violation of the public trust.
    The point is that this is a standard that has room at the 
elbows. It has room for the House to hold officials accountable 
for actions of misconduct. And a lot of the debate over 
language sort of misses the primary point. I will give you an 
example. The idea that gross negligence cannot be an 
impeachable offense.
    As I state in my written testimony, it depends on how you 
use those terms. For example, in the criminal arena, as many of 
you are aware, recklessness is viewed as a basis for criminal 
prosecution. So is deliberate indifference. Those are terms 
that take what would be normally a case of gross negligence, 
but it is criminal in the sense that it requires a level of 
action that itself is considered knowing for the scienter 
purposes.
    So, at some point, the use of these terms outside the 
context of impeachment loses their meaning. At the end of the 
day, Members have to look at whether what the official did was 
a betrayal of the public trust, whether it rose to the level of 
an impeachable offense. And so, I do not think you get very far 
by saying, ``Well, you cannot have gross negligence,'' without 
looking at what that actually means in this context.
    Mr. Franks. I might just follow up on that. You know, 
treason and bribery are relatively well-defined terms. But the 
meaning of high crimes and misdemeanors, you know, is not 
defined in the Constitution or in statute, and it sort of 
remains somewhat opaque. But, in keeping with what you just 
said, in your view, is impeachment limited ultimately to 
criminal acts, even if it was criminal negligence?
    Mr. Turley. No, it is not. And that is something that 
drives me to distraction. I testified in the Clinton 
impeachment hearings. And I was surprised by some of my 
colleagues who did not think that lying under oath would 
constitute an impeachable offense. So, there is obviously great 
variety of views of what that means. I did not find that a 
particularly close question. But it does not have to be an 
indictable offense.
    I think that the whole point of the language, when you hear 
the framers talk about violations of the public trust, is it is 
presumed, obviously, if a President commits crimes in office 
that is something upon which the President can be removed. But, 
in addition to those types of crimes, there are violations of 
the public trust that the framers expressly stated could be 
bases for removal.
    Mr. Franks. Mr. Garvey, do you have a last word on that 
yourself, related to whether or not it, in your view, is 
impeachment limited to criminal acts?
    Mr. Garvey. I think, first off, I would say that is a 
decision that is committed by the Constitution to the Members 
of the House, I think, if you look at history. In practice, 
however, there are examples in which a criminal act was not 
required.
    Mr. Franks. Yeah. Thank you, Mr. Chairman. I thank all of 
you.
    Mr. Goodlatte. The Chair recognizes the gentleman from New 
York, Mr. Jeffries, for 5 minutes.
    Mr. Jeffries. I thank you, Mr. Chairman. And I want to 
thank all the witnesses for your testimony, and for your 
presence. Mr. McCarthy, do you think that impeachment is an 
ordinary remedy, or an extraordinary remedy?
    Mr. McCarthy. It is an extraordinary remedy.
    Mr. Jeffries. Okay. Now, you wrote a book called 
``Faithless Execution.'' Is that correct?
    Mr. McCarthy. Yes, sir.
    Mr. Jeffries. And, in that book, you called for the 
impeachment of President Barack Obama. Correct?
    Mr. McCarthy. No, sir.
    Mr. Jeffries. You did not? Do you think that Barack Obama 
should be impeached or should not be impeached?
    Mr. McCarthy. I believe he has committed impeachable 
offenses. I do not believe that there is a public consensus for 
his removal. And, as I argue in the book, if you proceed with 
impeachment when there is not a public consensus for removal, 
it is actually counterproductive, because you encourage more 
lawlessness.
    Mr. Jeffries. Okay. So, you believe that Barack Obama has 
committed impeachable offenses. You also believe, in that book, 
that Attorney General Eric Holder committed impeachable 
offenses, correct?
    Mr. McCarthy. Yeah. I think that, certainly, what he was 
held in contempt for amounted to impeachable offenses.
    Mr. Jeffries. That was a partisan contempt vote, correct?
    Mr. McCarthy. I cannot argue to what the vote was. I know 
that Congress held him in contempt.
    Mr. Jeffries. Okay.
    Mr. McCarthy. I did not get to vote.
    Mr. Jeffries. You also argued in that book that the 
Secretary of State committed impeachable offenses, is that 
right?
    Mr. McCarthy. I do. I believe Benghazi, they are profound 
impeachable offenses, just to take that one transaction.
    Mr. Jeffries. Okay. By my count, for this extraordinary 
remedy, we are at one President, and two Cabinet secretaries. 
Let's keep going.
    Mr. McCarthy. Who I recommended not to impeach because 
there is not a public consensus for it.
    Mr. Jeffries. I understand. The American people are 
reasonable. You also argued that the Secretary of Health and 
Human Services committed impeachable offense. Is that right?
    Mr. McCarthy. I do not recall that. I mean, I would have to 
look at that. I did argue that the President had overstepped 
his executive authority by unilaterally amending, or changing 
statutes, and that certain subordinates in the executive branch 
had actually carried out that lawlessness.
    Mr. Jeffries. Okay. So, at one President, and three Cabinet 
secretaries, am I leaving anyone else out?
    Mr. .McCarthy. Man. I seem to think there were a lot more 
than that.
    Mr. Jeffries. Okay. Let us move on to Mr. Turley. I think 
we understand the perspective that you are bringing to this 
objective hearing. Now, Mr. Turley, in the Constitution, you 
have got treason, bribery, and other high crimes and 
misdemeanors as the standard laid out by the Framers. Is that 
right?
    Mr. Turley. That is correct. Yes, sir.
    Mr. Jeffries. And that is a high bar, extraordinary remedy. 
Is that right?
    Mr. Turley. Yes. I think it is.
    Mr. Jeffries. And I think you testified that Congress has a 
variety of options at its disposal in order to sanction, you 
know, an official or a judge. Is that right? Beyond 
impeachment?
    Mr. Turley. Yes.
    Mr. Jeffries. And I think you laid out impeachment, 
contempt, censure, and fines. Is that right?
    Mr. Turley. I believe so. Yes.
    Mr. Jeffries. And, along that spectrum, would you say that 
impeachment is the most severe remedy available to the Congress 
to, you know, express an adversarial position as it relates to 
the conduct of an official or a judge?
    Mr. Turley. Yes. But I would say that impeachment is not a 
means to express your adverse positions. It is not there for 
cathartic expression by Congress. But it certainly is the most 
extreme of those options.
    Mr. Jeffries. Right. So, it is not there to really express 
opposition or vent frustration at an Administration that you 
disagree with, notwithstanding the fact they were elected by 
the American people, not once but twice in overwhelming 
Electoral College fashion. It is this extraordinary remedy, 
with the bar set--high crimes, other misdemeanors, treason, 
bribery. Now, I think obstruction of justice presumably falls 
in that spectrum of an impeachable offense. Is that right?
    Mr. Turley. I think it does. Yes.
    Mr. Jeffries. Other forms of official corruption fall in 
that spectrum of an impeachable offense?
    Mr. Turley. Yes.
    Mr. Jeffries. Perjury would fall in that spectrum of an 
impeachable offense. Is that right?
    Mr. Turley. Yes, sir.
    Mr. Jeffries. Now, negligence, or incompetence, mistake--
along that spectrum which we are starting with treason and 
bribery, and we are winding up working our way through 
corruption and obstruction of justice, perjury--would you say 
that this extraordinary remedy, the most severe one available 
to the Congress is an appropriate remedy for a mistake, even if 
that is a mistake that results in gross administrative 
negligence from someone who was not even a Cabinet-level 
secretary, let alone a President?
    Mr. Turley. Well, certainly, if you are speaking of simple 
negligence then my answer is, well, no, it is not an 
impeachable offence. But this is where we end up on that 
spectrum, which--and you are also familiar with the criminal 
code as we see in many criminal cases. And it does not have to 
be a crime, but it is a good source to look at. There are some 
forms of negligence that rise to the level of criminal conduct, 
recklessness, deliberate indifference.
    And so when you look at a negligence question, a lot of my 
writings in this area says that it really does get down to the 
context. Was this reckless action? Was it a deliberate 
indifference or something less?
    Mr. Jeffries. Right, but there is a difference between 
manslaughter, criminally negligent homicide and negligence in 
an administrative context, I think. I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, recognizes 
the gentleman from Ohio, Mr. Jordan, for 5 minutes.
    Mr. Jordan. Thank you, Mr. Chairman. Mr. McCarthy, just to 
be clear for the record here, you believe you do not have to 
show criminal intent in an impeachment proceeding?
    Mr. McCarthy. You do not have to show criminal intent.
    Mr. Jordan. The standard is gross negligence, gross 
negligence, or breach of public trust, dereliction of duty 
could be the very appropriate standard?
    Mr. McCarthy. It certainly takes into account conduct that 
threatens the constitutional framework, but is not criminal and 
therefore, would not require criminal intent.
    Mr. Jordan. And, Mr. Turley, you would agree with most of 
that, based on your testimony? You have talked about reckless, 
and you just did that with questions from the last Member.
    Mr. Turley. Ultimately, you decide as a Member of this body 
as to what warrants impeachment and certain forms of gross 
negligence, in my--if you want to use that term----
    Mr. Jordan. Yep.
    Mr. Turley [continuing]. In my view, could become 
impeachable offenses if you are talking about recklessness or 
deliberate indifference.
    Mr. Jordan. Right.
    Mr. Turley. And that is a matter this body has to weigh 
very carefully.
    Mr. Jordan. Okay, Mr. McCarthy, back to you. I am reading 
from your written testimony, and you said--it was later, page 
14. Comparing the articles that were actually filed against 
President Nixon, you quote this--the articles read, ``Had 
endeavored to use the Internal Revenue Service to violate the 
rights of American citizens,'' they also read that, ``the 
President was making false or misleading statements and 
withholding relevant and material evidence or information.'' 
That was from the articles filed against the President, back--
against President Nixon.
    Here is a testimony from Mr. Koskinen. He said, ``If you 
told me that Tom Kane,'' Chief Deputy Counsel at that Internal 
Revenue Service, his Chief Deputy Counsel, ``said that on 
February 1st--that he knew on February 1st that there were 
problems with Lerner's hard drive and they were missing emails.
    If you tell me he knew on February 1st, I would henceforth 
say that the IRS knew in February.'' So, just the facts, Mr. 
Koskinen's IRS Chief Deputy Counsel is on notice of problems 
with Lerner's hard drive and server lost emails, and Mr. 
Koskinen waits 4 months to tell us. Would that be withholding 
relevant information, material information from our 
investigation, do you believe?
    Mr. McCarthy. Where I come from, and again, not having 
personally investigated this, myself----
    Mr. Jordan. Let me frame it this way. You are a former 
prosecutor. You find out important information. Maybe you did 
not find out directly, but one of your other lawyers in your 
office finds out and is working on the case, and you guys wait 
4 months to tell the judge. Would you be in trouble?
    Mr. McCarthy. No, I can tell you, in nearly 20 years as a 
prosecutor, you screw up a lot of times. When you make a 
mistake, you are obliged to get to the court and correct the 
record, not to be called on and to correct it. There may some 
rhythm involved in the equation to make sure that you have the 
facts right when you go to report it to the court, but if it is 
a matter of great gravity--for example, if I had gotten a court 
to incarcerate someone without bail on the basis of facts that 
I find out not to be true, my obligation, no matter how silly 
it makes me look, is to get to the judge and correct the 
record.
    Mr. Jordan. Correct the record?
    Mr. McCarthy. Right.
    Mr. Jordan. All right. Four months. It is also interesting, 
in that 4-month timeframe, that is actually the time when they 
destroyed the backup tape. So they knew they were in trouble 
with the main computer that had the emails, and they did not 
tell us for 4 months, but in that interval they also destroyed 
the backup tapes that would have given us information. And they 
did that with three preservation orders and two subpoenas in 
place.
    I also like what you said here from the article, ``Endeavor 
to use the IRS to violate the rights of American citizens.'' 
Now, it is interesting that you use the word endeavor. Because 
in this case that we are talking about, they did not endeavor, 
they did it. Four hundred and twenty-six groups were targeted 
systematically and for a sustained period of time by the 
Internal Revenue Service.
    I always remind folks, never forget the underlying offense 
here. The IRS targeted people for their political beliefs. They 
got caught. Ms. Lerner lied about it when she first went public 
May 10, 2013 and said, ``It was not us, it was folks in 
Cincinnati.''
    Then she comes in front of the Oversight Committee, sits 
right where you are sitting and takes the Fifth Amendment. When 
you have that fact pattern, it puts a premium on the documents, 
the evidence, the material, the emails and they waited to tell 
us that they had problems, and then they destroyed the backup 
tapes that contained the information we needed for our 
investigation. Ridiculous.
    Let me ask you this here. Mr. Gerhardt said this should be 
a last resort. The House has voted to reduce the IRS budget, 
the Treasury's budget. We have called for the resignation of 
Mr. Koskinen, we have voted for a special prosecutor to look 
into this, we voted last week in the Oversight Committee to 
censure. Last resort, we are there.
    There is nothing we can do to reassert, as Mr. Turley said, 
the rights of the legislative branch which have been trampled 
on by this executive branch. So, I would just say this, Mr. 
Chairman. You do not have to show bad intent, criminal intent. 
Legislative Branch rights have been trampled--and Mr. Turley 
pointed a great fact. Judicial Watch can get more information 
on the IRS targeting scandal, on Benghazi, on the Clinton 
email, on anything that is going, they get more information 
than Congress gets.
    The underlying offense here was the most egregious thing 
you can do--going after peoples' political free speech rights, 
the right to speak in a political fashion. And John Koskinen, 
as head of the agency, brought in to clean it up, in the 
President's word, and restore confidence, in the President's 
word, allowed 422 backup tapes to be destroyed with three 
preservation orders and two subpoenas in place. If that does 
not warrant, all that does not warrant us taking this action, I 
do not know what does. With that, I would yield back.
    Mr. Goodlatte. The Chair thanks the gentleman and 
recognizes the gentleman from Utah, Mr. Chaffetz, for 5 
minutes.
    Mr. Chaffetz. Mr. Chairman, thank you, and thank you 
sincerely for holding this hearing. But I got to tell you, the 
frustration it is very frustrating. But let's remember why we 
are here. We are here because he had two duly-issued subpoenas 
to the Commissioner of the IRS, and they did not fulfill those 
subpoenas. In fact, they destroyed that evidence.
    The IRS, which issues on average 66,000 subpoenas and 
summons a year, they know how to dish it out, but they do not 
know how to take it. Imagine if you came back to the IRS and 
said, ``I had those documents, but you know what? I went ahead 
and destroyed them.'' Do you think that you would go to court 
or not go to court? Would you be in jail or not be in jail? We 
are talking about removing somebody from office.
    The duplicity and inconsistency from Mr. Nadler is 
stunning. He complains about censure and yet he cosponsors 
resolutions of censorship on George W. Bush, he does censures 
on Mr. Cheney, but heaven forbid we get rid of somebody who 
lied to Congress. When you provide false testimony to Congress, 
is that or is that not a crime? Is that or is that not against 
the law? Does anyone of you think that providing false 
testimony to Congress is not against the law?
    Mr. McCarthy. It really depends on whether it is 
intentionally false, if you are talking about the criminal law.
    Mr. Chaffetz. But it does not rise to that level, does it? 
In terms of, if you provide false testimony to Congress, is 
that an impeachable offense?
    Mr. McCarthy. I would say that in the Senate Judiciary 
proceedings, with respect to Attorney General Gonzales, the 
senior Members of the Committee of both parties said that the 
issue was that the Committee had lost confidence in the ability 
of the Attorney General.
    Mr. Chaffetz. So, let me read. Let me read a couple things 
Mr. Nadler cited in the 1974. He cited as the leading authority 
on this. This is from the 1974 Judiciary Committee Report, 
``Impeachment in criminal law serve fundamentally different 
purposes. Impeachment is the first step in the remedial 
process, removal from office and possible disqualification from 
holding future office.'' The purpose of impeachment is not 
personal punishment. This goes from the conclusion.
    The emphasis has been on the significant effects of the 
conduct, undermining the integrity of the office, disregard of 
constitutional duties and oath of office, arrogation of power, 
abuse of the governmental process, adverse impact on the system 
of government.
    Clearly, these effects can be brought about in a way not 
intended by the criminal law. And the other one I would 
highlight is Mr. Madison. James Madison of Virginia argued in 
favor of impeachment, stating that some provision was 
``indispensable'' to defend the community against ``the 
incapacity, negligence, or perfidy of the chief magistrate.''
    So, the reason that we are here is because we had two duly-
issued subpoenas that were not abided by; in fact, they 
destroyed the evidence under his watch, and then provided false 
statements to the United States Congress. Do not pretend that 
this is just some accident that happened over on the side, and 
certainly I think that Mr. Koskinen had a duty and obligation 
to inform the Congress when he do because, what did he do? They 
informed the White House, they informed the Department of 
Treasury, but they did not inform the Congress. And I have a 
problem with that.
    Now, Mr. Gerhardt, you argued that the CRS report would say 
that Mr. Koskinen maybe does not rise to the level of somebody 
who is impeachable. Do you believe or not believe that the 
Commissioner of the IRS does qualify as a civil officer?
    Mr. Gerhardt. I am sorry, I am not sure I understood the 
first part, what you said, but I think he has enough 
responsibility, as I said in my opening statement. I think he 
exercises a substantial enough authority where he qualifies as 
a----
    Mr. Chaffetz. Does anybody believe that the Commissioner of 
the IRS is not of a significant high enough level to be 
qualified for impeachment? Very good. Let me also highlight 
something about this range of offenses. Mr. Gerhardt, in 1999, 
you wrote a law review article that seems to be in direct 
contradiction to what you said here today. Today, your 
testimony is, ``Indeed, the Founders considered, but rejected 
making certain high ranking officials impeachable on broad 
ground such as maladministration.''
    But in 1999 you wrote, ``Mason therefore withdrew his 
motion and substituted other high crimes and misdemeanors 
against the state, which Mason apparently understood as 
including maladministration.'' So, which one was right? Were 
you wrong in 1999, or are you wrong today?
    Mr. Gerhardt. I am describing George Mason in the one you 
just quoted from that in fact, what he understood, it was not 
necessarily attributable to the entire body. In fact, they 
adopted the phrase at the convention. They specifically adopted 
the phrase, ``high crimes or misdemeanors'' to distinguish it 
from maladministration, so, number one.
    Number two, over time, I think other crimes or misdemeanors 
have grown to be understood as requiring both bad faith and a 
bad act.
    Mr. Chaffetz. And clearly, Mr. Chairman, I think there were 
more than just that. Providing false testimony, not complying 
with the subpoena, in fact, destroying--that is destruction of 
evidence does qualify, in my opinion. Yield back.
    Mr. Goodlatte. The Chair thanks the gentleman and 
recognizes the gentleman from Florida, Mr. DeSantis, for 5 
minutes.
    Mr. DeSantis. Thank you, Mr. Chairman. Thanks to the 
witnesses. I appreciate everyone's testimony. I have heard, 
just as we have gotten into this from some of the colleagues on 
the other side, that Congress just cannot handle an 
impeachment, take a year and all this. It is a 1-day case. We 
will present the case in 1 day. The facts are really the facts. 
There are subpoenas issued, the tapes were destroyed, the 
emails were destroyed, there were statements made that are 
demonstrably false, there was a lack of effort on the IRS to 
even look for in obvious places. So either you are good with 
that or you are not.
    So, I think that this idea, this is going to take, it is 
like climbing Mount Everest to simply put on this case, it is 
just not true. We absolutely could do it, and I think we need 
to do it.
    High crimes and misdemeanors--in your book, Mr. McCarthy, 
you talked about some of the historical understandings of this, 
and when the Framers were devising the high crimes and 
misdemeanors provision, the biggest example was India, the 
Governor of India who had been impeached, Hastings.
    Mr. McCarthy. Right.
    Mr. DeSantis. And they specifically looked at whether you 
needed criminal intent, and I notice in the debates they said, 
well, no, you cannot say you can only have treason or crime 
because Hastings was not necessarily guilty of that. He was 
more guilty of breaching his duties that he owed to the crown, 
correct?
    Mr. McCarthy. Yeah, I think it is very clear that a 
criminal offense is not required. I also think it is worth 
pointing out that the Constitution explicitly provides that 
somebody who has been impeached is still subject to trial. So, 
the Framers obviously understood that this was not the analogue 
of a criminal proceeding because if it were, you would raise 
profound double jeopardy questions if you were to prosecute 
somebody afterwards.
    It is pretty clear from the way the Constitution is laid 
out and from the arguments that were made at the time that it 
was adopted that this is not required a criminal trial in the 
procedural sense and it does not call for a criminal offense in 
the substantive sense.
    Mr. DeSantis. And I liked your reference, and I am a Navy 
guy, so dereliction of duty and conduct unbecoming an officer 
and a gentleman; those are actionable offenses under the 
Uniform Code of Military Justice. Now, those are criminal under 
the Uniform Code of Military Justice. They would not be 
considered criminal, necessarily, those acts in civilian 
society, but that provides an interesting analogue that if you 
are just so grossly negligent, you are not doing any of your 
duties, that there is a mechanism to be able to hold you 
accountable.
    So, you agree that if somebody is just grossly negligent, 
if their conduct is just simply not becoming an officer, that 
that could potentially be actionable for an impeachment?
    Mr. McCarthy. I think it could potentially be, but I also 
think the ingredients involved here are the nature of the 
wrong, how much does it threaten our constitutional framework, 
the culpability of the actor, and the necessity that Congress 
check the executive branch? And I think the difficulty in 
fixing apodictically on a standard is that that is situational. 
It will be different from instance to instance.
    Mr. DeSantis. And we sometimes will hear, ``Well, Congress 
has not done this in a long time.'' Would you agree that right 
now Congress' power is really at its historical nadir in terms 
of the how the Founders conceived of the legislative branch?
    Mr. McCarthy. Yeah, Madison thought impeachment was 
indispensable. The Framers expected it would be used more than 
it has been, and perhaps the reason that Congress is at this 
low ebb is precisely because it has not been used when it 
should have been.
    Mr. DeSantis. Or use the power of the purse. I mean there 
are certain tools that Congress has and they have given a lot 
of power to the bureaucracy over the years. So, here we are, 
and I appreciated Professor Turley, we send a subpoena and it 
is like nobody even cares about it. They did not need to follow 
any of this stuff. They made a decision that going in that 
direction, there would be no consequences. The contempt, no 
consequences.
    And I just think if we keep allowing that, I think that we 
are inviting the executive branch to continue to trample over 
Congress' powers.
    I think in this case, clearly, this is an example of 
checking the executive branch, because the underlying conduct 
was very serious. It struck at the heart of who we are as a 
country and our freedoms. And whatever you think of that, 
because I know there will be disagreements on the other side, 
clearly, Congress had the right to get this information and to 
conduct proper oversight over the executive branch. And this 
Commissioner, under his tutelage, the agency has thwarted our 
efforts at every step of the way.
    I shudder to think what would happen to a taxpayer, a 
business owner who was audited, the IRS issues a summons for 
documents, and the response 2 months later is, ``Well, we 
destroyed the documents. Sorry.'' The IRS would not accept 
that. You would face consequences.
    Indeed, that is one of the cardinal sins with tax 
compliance, is to simply destroy documents that were under 
subpoena or under a summons. And so, I am glad we are having 
this hearing. I appreciate the range of views, and I yield back 
the balance of my time.
    Mr. Goodlatte. The Chair thanks the gentleman, recognizes 
the gentleman from Georgia, Mr. Collins, for 5 minutes.
    Mr. Collins. Thank you, Mr. Chairman. I think the 
interesting, you know, comment, because I personally believe I 
now served with others on the Oversight Committee and I have 
actually questioned the commissioner on many occasions. I have 
found sometimes, basically, getting more fruitful answers from 
the wall than I did from him, because he would basically just 
not answer questions. He would tell one story then you find 
out, you know, just a few days later it was not the right story 
then come back.
    I think the groundwork has been laid by many of the 
questions of my, you know, fellow congressmen here, and well, 
that this is an issue that should be brought forward.
    Mr. Turley, I want to go back to you and we have talked 
about this some, and Mr. McCarthy. I have heard the terms 
thrown around today, paper tiger, Congress has lost its 
authority. Let's deal with this. And it just came out, I think, 
Mr. McCarthy, you just said, ``We probably should be using this 
more,'' the impeachment process.
    I just want both of you to address that for a moment 
because we do have the power of the purse, you know, in the 
issues that we have now we are divided, I believe this 
Administration has played to the weakness, if there is, in the 
constitutional system. When you had a Congress that has trouble 
passing issues, they have played right into that and they have 
exploited it, in a way. Is impeachment the best way for us to 
go about that in holding some of this accountable, and I will 
take from either one of you.
    Mr. Turley. Well, my preference in these types of cases is 
first to start with contempt, and part of my testimony 
highlights the fact that this body used to exercise contempt 
authority, actual enforcement, directly, as a body and it 
agreed with the Department of Justice to the statutory process.
    Mr. Collins. That is great you brought it up, and I want to 
talk about that. Here is another issue, though. When we have a 
Department of Justice that is being politically motivated and 
driven to not follow evidence--take that step, as well. We can 
hold in contempt, and we have done that, but yet we cannot get 
them to take up the case. Is there maybe another way that we 
can go about that, or tie it directly to the Department of 
Justice for not following the contempt orders that are issued 
for Congress?
    Mr. Turley. Well, actually, for years I have testified in 
front of this Committee suggesting that you reexamine the deal 
you struck with the Department of Justice. I think the Justice 
Department is in clear flagrant violation of what it promised 
this body. It promised to be a neutral agent to take contempt 
referrals from this body. In 1982, it refused to submit 
Burford; 1982 again, refused to submit Bolton; 2008, refused to 
submit Meyers; 2012, refused to submit Holder or do a Grand 
Jury proceeding.
    It was an agreement with this body, when you went to the 
statutory process that they would be an honest broker and they 
have not been when the person accused is a member of the 
Administration.
    So, in my testimony I say it is really long overdue for the 
House to look at some of its original authority, the deal it 
struck; also to look at alternatives including fines, including 
financial penalties, which actually can be meted out for people 
who are censored or held in contempt.
    In terms of impeachment, yes, it is an extraordinary 
remedy, but we are living in extraordinary times, that if you 
believe that the IRS Commissioner knowingly lied to this 
Committee, if you believe that there was obstruction of this 
Committee, I do not know of anyone who does not believe that 
can be an impeachable offense. It rests with your judgment as 
to the culpability of his actions.
    But the problem is that this institution has allowed its 
powers to atrophy. And as a result, you have rational actors in 
the executive branch, and they balance detection against 
penalty, and if they see no penalty, they are going to conclude 
as rational actors that there is very little reason to 
cooperate with Congress when it could bear costs when not 
cooperating with Congress bears no costs.
    Mr. Collins. Mr. McCarthy, you agree?
    Mr. McCarthy. Yeah, I would just say that to my mind, the 
focus on contempt gets further away from what the purpose of 
impeachment was. The emphasis here is not on the venality of 
the actor; it is on the damage to the governing structure.
    And if you have somebody who is abusing his authority in a 
way that threatens the governing structure, the public interest 
is in removing the power from the person. Whether that person 
is personally sanctioned in the judicial system or otherwise is 
a very interesting question and a very important question, but 
it is beside the point of what this is about, which is 
protecting our governing framework.
    Mr. Collins. And I think that is the part right there for 
all of us who, especially in the House, who as all of you said, 
is closest to people, we have to stand, not just coming off of 
election; we answer to our constituents on a smaller level as 
far as the Federal Government goes, and this is the part they 
do not understand. They do not understand how an executive 
branch makes that cost analysis decision, you know, penalty and 
gain. They do not understand it because they do not get it in 
their own workplaces.
    If they do not do their job, if they do not follow through, 
if they do not get--if they do not follow even the IRS, which 
is the most egregious example, if they do not do what the IRS 
asks, they get put in jail, they get sanctioned. This is the 
part that concerns me.
    Atrophied muscles hurt when you start to exercise them. And 
I think there will be pain as we begin this process, but if 
Congress does not start looking for ways, then I agree with 
your paper tiger comment, but I am not willing to be a paper 
tiger. I think this Congress has to do this and this is the 
perfect example, because if you have watched any of the 
hearings in OGR, in which I was a part of, and which the 
Chairman has continued and that other Members here have 
continued, this is an outrage. This man needs to go. With that, 
I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, recognizes 
the gentleman from South Carolina, Mr. Gowdy, for 5 minutes.
    Mr. Gowdy. Thank you, Mr. Chairman. Professor Turley, when 
I see Chairman Chaffetz in his periwinkle trial suit, it gets 
me thinking a little bit towards, what if it actually went to 
trial? What would the mechanics of that trial be?
    So, I am going to ask you a series of questions in hopes 
that you will give me more of a deposition answer than a law 
professor answer so I could get through all of the questions. 
What is the burden of proof? By what standard of proof does the 
House have to prove the allegations?
    Mr. Turley. First of all, I like the suit.
    Mr. Gowdy. The suit is an impeachable offense.
    Mr. Turley. In terms of the standard, the standard is left 
to you. That is, it is not beyond a reasonable doubt. It is not 
a criminal proceeding. Members have to apply their own judgment 
as to whether there is sufficient evidence to support sending 
it to the Senate, and those two proceedings obviously have 
different sort of dynamics.
    Your role is closer to a grand jury, in my view. You 
determine whether this is a matter for which this person should 
stand trial in the Senate. That means that you do not do 
necessarily as an exhaustive a job as a Senate trial would be. 
You have to do enough to satisfy yourself that this warrants an 
impeachment that should be before the Senate.
    Mr. Gowdy. But then we have to walk across the Capitol to 
the jury, and we have to prove it. And maybe I am just a 
prisoner of my background. I am trying to figure out, is it 
preponderance; is it clear and convincing evidence; is it see 
if we can keep the Senators awake during the proceeding? What 
is the standard by which we have to prove whatever the 
allegation is?
    Mr. Turley. Well, I think if you look at past trials, it 
probably comes closest in practicality to preponderance. As we 
tried the Porteous case together, on opposite sides, the--we 
often objected to the level of evidence against Judge Porteous, 
but we also acknowledged that the Senators had to make their 
own judgment as to whether the evidence was sufficient. If I 
was to peg which standard comes closest, I would probably say, 
historically, preponderance has come closest.
    Mr. Gowdy. Do the rules of evidence apply? In other words, 
can I call a single witness who then uses hearsay to import, 
like, the Inspector General? Can I call the Inspector General 
and just use him to get all of the other evidence in, or do the 
rules of evidence apply?
    Mr. Turley. Well, I am only laughing because the Chairman 
and I, remember, we had some heated moments late at night, 
around 12 at night, about witnesses and the rules of evidence. 
Technically, the rules of evidence do not apply. The rules that 
apply are the rules adopted by the Senate for those 
proceedings.
    But I should also say, is we argued in the Porteous case 
that we--the Senate has tried to maintain those proceedings as 
close to the rules of evidence as possible. So as we tried that 
case, I would make evidentiary objections as I would in a 
Federal case, understanding that the Senators could override 
those determinations.
    Mr. Gowdy. And I guess it is theoretically possible that 
the Senate could say, ``Yes, there was a breach of duty or an 
offense was committed, but the punishment is not the punishment 
you are seeking.'' I guess they are both the finder of the fact 
and the ultimate censurer?
    Mr. Turley. Yes, I mean, the Senators can decide that this 
does not warrant removal, and that is, of course, a different 
question from whether they believe the underlying conduct 
occurred.
    Mr. Gowdy. Every now and again, senators will express their 
opinion on matters even before the trial has begun. I assume 
there is no remedy for removing jurors who have already 
expressed their----
    Mr. Turley. No, I can say, with all due respect to the 
senator, it was the most difficult jury I ever appeared in 
front of. The fact is that senators are their own counsel as to 
the degree to which they speak to this.
    And during the Clinton impeachment, we did have senators 
who, after signing the book and the initial entrance to remain 
neutral, actually went out and said they will not vote for 
impeachment before the trial started. That was not viewed as a 
violation, even though some Members did raise concerns about 
that.
    Mr. Gowdy. All right. Last, kind of, nuts and bolts 
question--prosecutors have a tendency to think in terms of what 
defenses we may run into. The defense of some hybrid of 
selective prosecution that you are singling me out, even though 
other Administration officials have done exactly the same 
thing. I assume the Senate can factor that in if they want to, 
but you are not getting a jury instruction on selective 
prosecution, but if they want to use that as an argument, they 
could do so?
    Mr. Turley. And in fact, was one of the arguments we raised 
in the Porteous trial before the Senate, is that his conduct 
was not easily distinguishable from other judges or even 
Members of Congress in some cases. But that was something to 
factor in. Obviously, the Senators did not find that 
persuasive.
    Mr. Gowdy. My time is out. Mr. Chairman, I did want to ask, 
because I thought Jimmy asked a really, really good question 
which Professor Gerhardt--this incremental approach or the 
remedy of last resort. Walk me through what that incremental 
approach would look like. If it is the last resort, that 
necessarily means that we should try something before then. 
What have we not tried that we should try?
    Mr. Gerhardt. Well, congressman, we have covered some of 
these, contempt and other possibilities. The other, frankly, is 
that this is an official who works within a hierarchy, and 
there are people within that hierarchy who obviously have, in 
some respects, supervisory authority. We have had other IRS 
Commissioners, for example, forced to resign if they have done 
something sort of inappropriate, so that is an option.
    So, within the political circumstances in which this person 
functions, there are options. So, that is one of the 
challenges, I suppose, of dealing with a sub-Cabinet Official. 
Sub-Cabinet Official is, by definition, operating within a 
hierarchy. So the question becomes, to what extent can that 
official be held accountable within that hierarchy?
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Goodlatte. If the gentleman would yield. He failed----
    Mr. Gowdy. Well, of course.
    Mr. Goodlatte [continuing]. He failed to ask Mr. Turley, 
who was the prevailing party in the impeachment
    Mr. Gowdy. I just assumed anytime you went up against 
Professor Turley, we all knew you won.
    Mr. Turley. Thank you for----
    Mr. Gowdy. But that is all wrong.
    Mr. Turley. It escapes my memory at the moment, Mr. 
Chairman.
    Mr. Goodlatte. The gentleman from Utah.
    Mr. Chaffetz. I thank the Chairman. I would like to just 
note for the record that the Oversight Government Reform 
Committee took a----
    Mr. Goodlatte. The gentleman would state his request.
    Mr. Chaffetz. I ask unanimous consent to ask 5 minutes' 
worth of questions.
    Mr. Goodlatte. Since I went over, Mr. Gowdy went over, I am 
not going to do a second round of questions, but I will be 
happy to recognize you for some brief additional questions, so 
keep it under that, that would be good, and I will do the same 
for the gentleman from Ohio.
    Mr. Chaffetz. Will do. I thank the Chairman. I would note 
that the Oversight Government Reform Committee had the question 
about who would qualify as a civil officer. Counsel for the 
House came back and said that anybody--the standard should be 
they thought the most defensible would be somebody that was 
confirmed by the United States Senate. I was wondering if 
anybody would disagree with that counsel we got, if there would 
be a different standard, but their definition of civil officer, 
most defensible was somebody confirmed by the United States 
Senate.
    Mr. Turley. I have to say that that is the most logical 
line to draw. I am not entirely sure that I would say that is 
the exclusive measure of whether someone is impeachable. I can 
imagine a person who is not subject to confirmation having a 
very high position in the government, and indeed, I think part 
of the problem with those who say, ``Look, this is 
unprecedented, you cannot go below the Cabinet,'' is it ignores 
the modern regulatory state.
    You know, in the case of the commissioner, this is someone 
who has authority over 90,000 employees collecting $2.5 
trillion from almost 250 million citizens. To suggest that that 
would not amount to a person subject to impeachment I think is 
facially ridiculous. But I could also imagine in our current 
regulatory state somebody who is not in a confirmable position 
who exercises that degree of authority.
    Mr. Chaffetz. The other question I would say is, do you 
believe that providing false information to Congress is an 
impeachable offense?
    Mr. Turley. From my point, standpoint, absolutely.
    Mr. McCarthy. I do not think there is any question. It is.
    Mr. Gerhardt. Of course, providing false testimony would 
be, but for me, it is not just the bad act. It would have to be 
the purposeful engagement in bad faith.
    Mr. Chaffetz. Mr. Garvey?
    Mr. Garvey. Yeah, I would just point out that Judge 
Porteous was impeached and convicted for providing false 
statements to Congress. That was Article IV of his articles of 
impeachment.
    Mr. Chaffetz. I thank you. And just finally, Mr. Chairman, 
I just ask you now to consent to enter into the record this 
Washington Post piece by George Will, October 7, 2015, Impeach 
the IRS Director.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                                __________
                                
    Mr. Goodlatte. The gentleman from Ohio, for what purpose--
--
    Mr. Jordan. I thank the Chairman for to ask this short 
second--I want to make a couple points.
    Mr. Goodlatte. The gentleman is recognized.
    Mr. Jordan. I was going right where Chairman Chaffetz was 
at with this idea of the low Cabinet level. Mr. Turley, you are 
right, it does ignore the modern regulatory state, and we are 
not just talking about any old agency. This is probably the one 
agency that the American people have to deal with more than any 
other. This is the Internal Revenue Service. So, yeah, I think 
that just misses the fundamental fact of the world we live in 
today.
    I just want to finish with this and maybe ask Mr. 
McCarthy--I cannot remember which of you on the panel said 
this--but I think they said there were three basic elements--
the gravity of the offense, the culpability of the person that 
we are looking into, and then the duty of Congress. When you 
look at those three elements, the gravity of the offense, I 
always come back to this. They went after peoples' First 
Amendment, free speech, political speech, political--when the 
Founders put together the First Amendment, I think they were 
mostly focused on your ability to speak in a political nature, 
and not be harassed and targeted for doing so. That was the 
underlying offense.
    Then we have Mr. Koskinen who allows documents to be 
destroyed and gives false and misleading testimony to the 
Congress. So, when I think about the gravity of both of those 
offenses, the culpability--allowed documents to be destroyed 
that were central to the investigation--would you, Mr. Turley 
and Mr. McCarthy, think those two elements then warrant the 
action we are seeking to take?
    Mr. Turley. Well, what I would suggest is that first of 
all, the underlying allegation created a legitimate 
investigation for this Committee. If you are suggesting that 
the IRS was effectively weaponized against political opponents; 
that is an exceptionally dangerous type of precedent. Even 
President Obama acknowledged that. Did this Committee have 
absolute right to the documents that it sought? Clearly. Was 
the refusal of those documents to the Committee a basis to 
investigate for obstruction? Clearly.
    If this Committee believes that a witness came in and lied 
to it and obstructed its investigation, then those have the 
gravity required for impeachment. It turns a lot on what you 
believe to be the nature of his actions. Was it just simple 
negligence, or was it intentional, or was it an act of willful 
blindness or deliberate indifference? All of those are----
    Mr. Jordan. Sure, it sure seems willful, anyway--it is 4 
months to tell us that they cannot get us the information we 
ask for and that was under subpoena.
    Mr. Turley. Well, that certainly helps the House because 
nothing concentrates the mind so much as a subpoena. And 
normally, you do not get a sort of passive-aggressive response. 
You have to comply with the subpoena.
    Mr. Jordan. Mr. McCarthy?
    Mr. McCarthy. Yeah, I would just say that the third element 
plays in here, and that is that you have an obligation, 
constitutionally. Because, really, nobody else can. To check 
executive abuse of power, overreach. And if you allow a 
situation where an agency like the IRS is weaponized against 
political opponents of the Administration, and you allow a 
situation where when you ask for relevant information that you 
are entitled to have from the executive branch, they either 
provide you with false information or they obstruct justice, 
you either have to act or you are basically green-lighting that 
conduct.
    You know, people like me in the peanut gallery can rant and 
rave and do whatever. But we are not in a position to be a 
counterweight to the executive branch. It is a great power that 
Congress has, but it is also a profound responsibility because 
what hangs in the balance is whether our framework of 
government works.
    Mr. Jordan. Well said. I am going to thank the panel, and 
thank you, Mr. Chairman.
    Mr. Goodlatte. The Chair thanks the gentleman, and Mr. 
Garvey, I had asked you about instances of censure of sub-
Cabinet level employees of the executive branch, and I want to 
ask a unanimous consent to submit for the record two instances 
that my research has found: one, of Assistant Secretary of the 
Army, Sara E. Lister in 1998, and the second, earlier, the 
Ambassador Thomas F. Bayard in 1896. So, we will submit the 
documentation regarding those censures.
    [The information referred to follows:]
    
    
                               __________
                               
    Mr. Goodlatte. And this has been a very good hearing, and I 
thank all of the witnesses for their contribution to it. I 
thank the Members of the Committee for their participation as 
well, and without objection all Members will have 5 legislative 
days to submit additional written questions for the witnesses, 
which we would ask that you answer promptly and without the 
necessity of a subpoena, or additional materials for the 
record.
    And with that, this hearing is adjourned.
    [Whereupon, at 12:15 p.m., the Committee adjourned subject 
to the call of the Chair.]

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