Washington, D.C. -Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, is releasing new materials-including letters and memos from government and non-governmental legal and constitutional experts-documenting how Republican efforts to censure Internal Revenue Service (IRS) Commissioner John Koskinen are either pointless or unconstitutional.
When Oversight Committee Chairman Jason Chaffetz introduced his resolution to censure Commissioner Koskinen, he stated that it “requires the forfeiture of his pension." At the Oversight Committee’s markup last week, he again asserted that it “requires forfeiture of his government pension and any other federal benefits for which he is eligible."
Today, Cummings is releasing opinions by constitutional law experts explaining that this resolution merely expresses the “sense of the House" and has no legal effect. These experts warn that if Chaffetz were correct, the resolution could be an unconstitutional “bill of attainder" that seeks to deprive a specific citizen of his property.
Ranking Member Cummings issued the following statement:
“Why in the world are we being forced to vote on a resolution that is either pointless or unconstitutional, especially when all of the underlying allegations have already been completely debunked? The truth is that this censure resolution is political theater, and the House of Representatives should not be wasting another second on it when there are so many more important issues we need to address."
Ranking Member Cummings released the following materials:
* Richard Painter, Former Chief Ethics Lawyer for President George W. Bush - S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
"Federal government pensions, like other debt obligations of the United States, are contractual commitments that cannot be repudiated.
“I also believe that for the House to pass such a resolution with the expectation that it would legally affect Koskinen’s pension would demonstrate a dangerous attempt by the House to exceed its powers under the United States Constitution."
“A legislative enactment that sought to take away the pension or other property of a particular individual would be a bill of attainder specifically prohibited by the Constitution."
“I should furthermore note that over the past several years your Committee has spent millions of taxpayer dollars on this investigation. This is essentially a dispute between the IRS and Members of Congress about the 501c4 organizations that further the objectives of political campaigns, including campaigns of Members of Congress. The IRS is charged with determining whether the activities of these organizations comply with the Internal Revenue Code and it is not proper for Congress to seek to intimidate the IRS in the discharge of its duties."
* Stan Brand, Former Counsel to the U.S. House of Representatives - Distinguished Fellow in Law and Government, Penn State Dickinson School of Law
“First a simple one House resolution does not have binding legal effect on any person outside the House of Representatives. This has been clear at least since the Supreme Court decision in Chadha v INS which established that any law having the purpose or effect of governing the conduct of persons outside the legislature is subject to the constitutional requirements of bicameral passage and presentment to the President. Accordingly any House resolution purporting to impact Commissioner Koskinens federal pension rights would be of no binding legal effect on officers of the federal government."
“Moreover even a bicameral resolution if enacted and signed by the President would be subject to constitutional challenge as a prohibited bill of attainder barring the imposition of pains and penalties by the legislature as a ‘trial’ affecting the rights of an individual. These types of judgments are reserved to federal courts under controlling Supreme Court jurisprudence."
* Kathleen Clark, Professor of Law - Washington University in St. Louis School of Law
“House Resolution 737 is a simple resolution, meaning that it will be presented to the House of Representatives for a vote but will not go before the Senate, nor will it be presented to the President for his signature. This kind of ‘sense of the House’ resolution gives members of the House of Representatives an opportunity to express themselves on an issue, and thus may be a useful political device. But a simple resolution does not have any legal effect outside the chamber that passes it."
* Richard Briffault, Joseph P. Chamberlain Professor of Legislation - Columbia Law School
“H. Res. 737, even if passed by the full House, would not be a law and, so, would have no effect on Commissioner Koskinen’s government benefits."
“In addition, even if the annuity forfeiture provision were to be enacted as a law it could be challenged as a bill of attainder, in violation of Art. I, sec. 9, cl. 3, of the Constitution."
* Congressional Research Service
“The provisions and language in the simple resolution regarding the pension annuities of the executive branch official are therefore simply hortatory, are not legally binding, and would have no mandatory impact upon the right of the officer to his government pension."
“If, on the other hand, there were an attempt to place the pension forfeiture provision regarding a named individual in a House bill, to be approved by the Senate, and presented to the President to be enacted into law, such legislation would then appear to run afoul of the provision of the United States Constitution which prohibits the Congress from enacting a “Bill of Attainder."
“Taking away an employee’s or former employee’s pension in such circumstances (i.e., in response to perceived employee misconduct) has been characterized in the past as ‘punitive’; and Congress targeting specific employees for reductions of pay or benefits as a punitive measure either in permanent legislation or in appropriations laws has been found by the Supreme Court to constitute an impermissible ‘Bill of Attainder’."
* Democratic Views on Censure Resolution
Today, Cummings also released the Democratic Views on the censure resolution.
Last week, Chairman Chaffetz rushed to hold a vote on his resolution, leapfrogging over the Judiciary Committee, which plans to hold its second hearing on these matters this week. Republicans approved the censure resolution on a party line vote, but only after admitting that it was factually inaccurate.
Republicans defeated an amendment to add to their resolution findings by Republican Inspector General Russell George, who conducted an exhaustive, multi-year, $2 million investigation. The Inspector General identified no politically motivated targeting, no obstruction of justice, and no effort to conceal information from Congress. To the contrary, he testified that Commissioner Koskinen was “extraordinarily cooperative."
Republicans also refused to acknowledge that career officials at the Department of Justice “found no evidence that any IRS official acted based on political, discriminatory, corrupt, or other inappropriate motives that would support criminal prosecution" and “found no evidence that any official involved in the handling of tax-exempt applications or IRS leadership attempted to obstruct justice."
