So what ultimately happened to these key players in the IRS scandal? Nothing.
On October 23, 2015, the Department of Justice closed its investigation into the IRS scandal, recommending that no criminal charges be filed. Assistant Attorney General Peter Kadzik’s letter to the House Judiciary Committee said, “The IRS mishandled the processing of tax-exempt applications in a manner that disproportionately impacted applicants affiliated with the Tea Party and similar groups, leaving the appearance that the IRS’s conduct was motivated by political, discriminatory, corrupt or other inappropriate motive. However, ineffective management is not a crime. The Department of Justice’s exhaustive probe revealed no evidence that would support a criminal prosecution. What occurred is disquieting and may necessitate corrective action—but it does not warrant criminal prosecution.”
“Disquieting?” Even though the House of Representatives passed a contempt of Congress resolution against Lois Lerner for her refusal to testify, citing the fact that she had waived her Fifth Amendment privilege against self-incrimination by making an opening statement, the Department of Justice didn’t do anything about it. On March 31, 2015, U.S. attorney Ronald Machen sent a letter to Speaker of the House John Boehner, Republican of Ohio. Machen wrote, “We respectfully inform you that we will . . . not bring the Congressional contempt citation before a grand jury or take any other action to prosecute Ms. Lerner for her refusal to testify on March 5, 2014.” Lerner retired from the IRS on September 23, 2013, receiving her generous taxpayer-funded pension.
Kate Duval went on to work at the State Department, where she was entrusted with document production to the select committee on Benghazi. That couldn’t have been an accident. She is now in private practice.
What is Congress to do when the Deep State chooses to protect its own rather than enforce the law? I know what I would have liked to do.
The House Jail
Congress does not throw people in jail. Anymore. But technically, in limited cases and under limited conditions, they can. And they have.
Back in 1795, a man named Robert Randall tried to bribe three congressmen to support a twenty-million-acre land grant with an offer to set aside portions of the land for them. The House ordered the sergeant-at-arms to take Randall and an associate into custody while a committee was appointed to decide how to proceed.
They didn’t wait for the executive branch to prosecute. Instead, Randall was tried before the House and found guilty of contempt by a vote of 78–17. He served one week before being released.
In 1800, a Philadelphia newspaper published reports that the Senate found to be “false, defamatory, scandalous, and malicious, tending to defame the Senate of the United States.” Publisher William Duane was ordered to attend the bar of the House. He refused. Although the Senate ordered the sergeant-at-arms to detain him, the attempt was unsuccessful. But Duane was later convicted under the Sedition Act by the executive branch, with then–vice president Thomas Jefferson presiding over the affair.
And everybody is apoplectic that President Trump tweets that the media is unfair?
Both houses of Congress believed they had the power to enforce cooperation with Congress. That notion was upheld a generation later by a Supreme Court decision in 1821.
That case involved another bribery attempt in the House that resulted in a charge of contempt. In this case, the accused brought a lawsuit alleging assault and battery by the sergeant-at-arms as well as false imprisonment by the House. The Supreme Court sided with the House.
In the intervening years, this Supreme Court decision has not been challenged. I’m not suggesting Congress just jail people indiscriminately, which would be pretty heavy-handed. But a stronger enforcement mechanism to induce compliance with congressional subpoenas is necessary.
Power to Impeach
Although Congress has initiated impeachment proceedings at least sixty times in our nation’s history, only once has a cabinet official been impeached. That happened in 1876. If I had had my way, it would have happened again in 2017.
In the case of John Koskinen, he misled and lied to Congress. When he had information that he knew was false, he never did correct it. I sent a letter to President Obama in July 2015 asking that Koskinen be removed from his position as IRS commissioner but never heard back. I felt very strongly (as did Representatives Jim Jordan, Mark Meadows, Ron DeSantis, Paul Gosar, Gary Palmer, Buddy Carter, and Jody Hice) that we should get rid of him. But how does Congress dismiss somebody? There is a provision in the Constitution that is rarely exercised. The Constitution provides for the expulsion of presidents and judges. We commonly think of impeachment as the tool to do that. But a careful reading of the Constitution also allows for the dismissal of civil officers.
I got online, did my research, and found a wonderful essay on what the Constitution says about advice and consent, written by a constitutional scholar named John McGinnis in 2005 for the Heritage Foundation. The piece discusses the Senate’s role in confirming presidential appointments. The president can nominate someone, but nobody gets that job or appointment without the consent of the Senate. The Senate doesn’t have to give any reasons for its decisions. They can say they don’t like the way he brushes his teeth, they don’t care for the way he combs his hair. There is no provision or limitation. It gives the Senate a coequal voice.
The idea is not new. Impeachment authority against executive branch officers has been used before.
William Belknap, the secretary of war under President Ulysses S. Grant, was impeached after a House oversight committee uncovered evidence of blatant corruption during his eight years as a cabinet secretary.
Impeachment was threatened in a subsequent incident foreshadowing today’s conflicts. Congress wielded impeachment power in an 1879 dispute with the State Department. In this case Congress took an executive branch officer into custody for failure to cooperate with an oversight investigation.
To gather evidence to support allegations against the State Department’s minister to China, the newly created House Committee on Expenditures in the State Department demanded to see records of fees received at the Shanghai consulate during the tenure of George F. Seward. Like another State Department leader in our time, Seward had not submitted those records to the department but had instead kept them in his possession. The committee subpoenaed Seward to appear and produce the records.
Seward did appear before Congress, but his attorney argued the committee had no authority to demand the records. Seward tried to plead the Fifth but the committee argued the plea was invalid because their inquiry was not a criminal proceeding. In response, the committee proposed and the House voted to instruct the sergeant-at-arms to take custody of Seward and bring him before the bar of the House. Seward still refused to cooperate, providing only a written statement that the proceeding was an attempt to impeach him and thus he was not required to witness against himself. That dispute went to the House Judiciary Committee, which ultimately sided with Seward. No impeachment vote was actually held.
One thing is clear from our history: this country has often struggled with scandal. That is not new. What is new is the scope and complexity of our federal agencies, entrenched Deep State interests, and the risks we face. The world was a less complex place in the eighteenth and nineteenth centuries. The capacity of the Deep State to destroy a president, thwart Congress, and disregard the rule of law has never been more severe or held more potential for disaster.
We are Americans. We have to fix it. But how?
Before one can get to strategies and policies and programs, you have to have the people in place to enact those policies. You have to have people willing and courageous enough to stand up to the Deep State, to unsettle business as usual.
Call it, perhaps, the courage to disrupt. It doesn’t always come in the package or the person you expect, or even hope for.
The prevailing theory on advice and consent is that it includes authority to dismiss someone if they aren’t living up to the du
ties and obligations of their job. You have a coequal voice to appoint and an equal opportunity to dismiss. But it’s a very, very high bar. It’s essentially the political death penalty. And I thought Koskinen was worthy of it.
On October 27, 2015, I introduced legislation to begin impeachment proceedings against Koskinen. The resolution, H.J. Res. 494, was referred to the House Judiciary Committee. The core of us in the Committee on Oversight and Government Reform supported it. But quite frankly, I was a little disappointed that a broader group of Republicans didn’t support us. Peter Roskam, Republican of Illinois on the House Ways and Means Committee, actually argued that Koskinen was our best foil. He personified what was wrong with the IRS.
Unfortunately, too many Ways and Means Committee members concurred. They liked having him there because they thought he was a weak commissioner. I thought that was a lame approach. But it’s one of the reasons the impeachment didn’t move forward.
When Donald Trump was made president, he had a chance to send Koskinen packing. He didn’t. Ultimately, Koskinen was allowed to serve out his full appointment until November 2017. It was a travesty.
And then, on October 25, 2017, the Justice Department announced that it had settled with conservative groups that had sued over the IRS scrutiny. The settlement was reportedly $3.5 million for more than four hundred Tea Party clients. The IRS, in one of the settlement documents, admitted wrongly treating the plaintiffs and offered a “sincere apology.”
For her part, Lois Lerner, who, remember, had retired with her fat bonus, in December 2017 asked a federal judge to seal her testimony that she gave in depositions in connection with the lawsuits. Ms. Lerner complained that revealing her testimony would subject her to harassment. The Wall Street Journal wrote, “American taxpayers who will fork out $3.5 million for Ms. Lerner’s actions have a right to hear how she justified what she did at the IRS.”
John Koskinen eventually retired in November 2017, proud that he had prevailed through all the scandals.
“Survival is its own reward,” he told the New York Times.
It makes me sick. Essentially, we were right, but there would be no consequences for those involved. The Internal Revenue Service turns people’s lives upside down. The IRS inhibited conservative Americans’ ability to act on their First Amendment rights. The place was and is such a mess that even the February 2016 computer breach that allowed the theft of 700,000 Americans’ Social Security numbers was greeted with a shrug. Oh no, wait. The IRS has offered taxpayers identity theft protection for a year. Free!
Then, at the end of the day, the IRS routinely shrugs its shoulders and admits wrongdoing. I’m not aware of a single person who was demoted or who lost their job or pension in connection with the scandal. How was it so wrong that taxpayers had to pay a settlement, yet nothing happened to anyone? This problem is still not fixed. This could happen again.
“Survival is its own reward.” Does any sentence capture the essence of the Deep State better than that?
Chapter 8
Face-to-Face with the Deep State
If not for an extraordinary series of events involving a constituent of mine in Utah, the truth about Benghazi might never have come to light. The world may have accepted a false narrative, the witnesses may have been intimidated into silence by their Deep State bosses, Congress may never have sought emails from the State Department, and Hillary Clinton’s duplicity may never have been uncovered.
On the morning of September 12, 2012, I saw news reports of an attack in Benghazi, Libya, the previous night. I had never heard of the city of Benghazi nor could I point to it on a map. But even in a world desensitized to the ongoing violence in the Middle East, a terror attack on the anniversary of 9/11 is bound to stand out. Fairly quickly there were horrifying scenes broadcast of our consulate in flames and people running around with masks and guns in what appeared to be a coordinated terrorist attack.
We soon learned that our ambassador, J. Christopher Stevens, along with security officers Tyrone S. Woods, Glen Doherty, and Sean Smith, had been hunted down and killed that night. For a few days, the details were sketchy. Inexplicably, U.S. ambassador to the United Nations Susan Rice went on national television telling America, and the world, that this attack was absolutely not a planned terrorist attack. According to Rice, it happened because of a spontaneous reaction to an anti-Islam YouTube video. The explanation didn’t seem congruent with the violent images on our TV screens. For me, and for many Americans, the story didn’t add up. It seemed odd at best.
There’s something very important to remember about the attack on Benghazi, and far more important, about the explanations offered immediately afterward from President Obama and Secretary of State Hillary Clinton: this country was in the homestretch of President Obama’s reelection campaign. Election Day was just weeks away. Although the Benghazi attacks themselves would not measurably impact Obama in that 2012 race, the political calculations made by his team and his Deep State allies during that period would have a profound effect on Obama’s successor as the Democratic presidential nominee four years later.
An Unexpected Whistleblower
On September 20, just twelve days after the attacks, I made a decision that would ultimately uncover the tip of a massive Deep State iceberg—one that to this day still has not fully surfaced. On that day, I had no inkling of the chain of events that decision would trigger or just how pivotal it would become.
House Oversight Committee chairman Darrell Issa had tapped me to chair the committee’s Subcommittee on National Security, so decisions about whether and how to investigate the Benghazi attacks fell to me. Suspicious about the explanations the Obama administration was proffering, I worked with subcommittee staff director Tom Alexander to draft a letter to Secretary Clinton.
Referred to as a preservation letter, it instructed the secretary of state to produce all information related to the terrorist attacks in Benghazi. It very specifically asked for “all responsive documents in [her] possession, custody, or control, whether held by [her] or [her] past or present agents, employees, and representatives acting on [her] behalf.” The letter went on to define “document” to mean any written matter of any nature, including electronic mail (email).
The letter itself goes on for several pages, and I signed it as the chairman of the subcommittee. I had asked Chairman Issa to sign the letter with me, as I thought it would be more powerful if it had the chairman’s signature on it, but he declined to do so, and I still don’t know why. But perhaps his refusal signals just how insignificant the questions seemed at the time.
While my instincts immediately told me that we—Congress and the American people—were not getting the full story of what happened in Benghazi that night, I never expected what happened next.
At that time my congressional office routinely received roughly ten thousand emails or letters a month. Like most congressional offices, we relied heavily on college interns to sort them out and make sure we got a timely response back to our constituents. It was a massive effort and a hard duty for young interns without much experience.
Shortly after the attacks, an email buried among the thousands of others we receive caught the attention of one of our interns. She had been on the job for less than three weeks. She was brave enough to suggest this particular email should be immediately reviewed by the congressman personally. I’m certainly glad she was astute enough to figure this out and share it with me, because it changed everything.
The email was from a lieutenant colonel in the Utah National Guard. He had previously reached out to other congressional offices to share his story but had had no luck getting an audience with them or even their staff.
He had served for months in Libya as the seniormost military officer and wanted to share his perspective on the Benghazi attack. As the lead American military liaison, he was deeply involved in consulting on security challenges at our facilities in Libya. He completed his assignment in August 2012, just weeks before the attack. Accordi
ng to his letter, he wanted to shed light on the reality of what was happening there and what was not being done.
Because of the sensitivity of the information he needed to share, we could not just chat over the phone or meet in my office. We had to arrange to meet in a secure facility where classified information could be divulged.
The earliest we could get together in a secure facility in Utah was on a Sunday. I communicated with the adjutant general in the Utah National Guard, General Jefferson Burton, who agreed to let us use the SCIF (Sensitive Compartmented Information Facility) at Camp Williams.
I met Lieutenant Colonel Andrew Wood in the SCIF that Sunday morning around nine o’clock. I drove the eight miles from my home over to Camp Williams. I had skipped church to meet with him and he had been excused from his duties so we could meet. We were joined by two other National Guard personnel who sat in on the nearly two-hour meeting.
I don’t know what I expected from that meeting. But I left it feeling deeply concerned and worried.
There was a lot we weren’t being told. Lieutenant Colonel Wood described and documented repeated terrorist attempts to breach the compound. Other countries had already left due to the danger; we were the last flag flying. Vulnerabilities had been identified and reported. But the State Department refused to provide even the minimum level of security standards required by the Inman Report—a 1985 security standard developed after our U.S. embassy in Beirut was attacked in 1983. Instead, Wood indicated that bureaucrats in the State Department waived requirement after requirement, putting everyone at risk. Both he and Regional Security Officer (RSO) Eric Nordstrom knew this was an unacceptable risk.
The Deep State Page 9
