[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE ALLEGATIONS OF MISCONDUCT
AGAINST IRS COMMISSIONER JOHN KOSKINEN
(PART II)
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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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Available via the World Wide Web: http://judiciary.house.gov
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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
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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)
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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.]
[all]