(Bloomberg) Internal Revenue Service Commissioner John A. Koskinen committed an impeachable offense by giving false testimony to Congress about his agency’s preservation of e-mails, a conservative lawyer told the House Judiciary Committee.

John Koskinen

Nonetheless, it would be “a mistake” for House Republicans to move forward with a drive to impeach Koskinen unless the Senate is also on board, said Andrew McCarthy, a former assistant U.S. attorney for the Southern District of New York who has written extensively on impeachment. Although the judiciary panel has conducted two hearings related to a possible impeachment of Koskinen, neither House nor Senate leaders have said they support it.

If it succeeded, it would be the first impeachment of an appointed executive-branch official in 140 years.

Koskinen, who took office in December 2013, was almost immediately mired in the agency’s response to a scandal that predated his tenure; IRS officials acknowledged that they had given extra scrutiny to conservative groups that sought tax-exempt status beginning in 2010. He didn’t attend Wednesday’s hearing, but he has said the allegations against him—that he misled Congress and failed to ensure that the agency preserved all relevant e-mails—are meritless.

Partisan Exchanges
“Every time I testified, I testified truthfully on what I knew,” Koskinen told reporters last month.
During the hearing, which was marked by partisan exchanges from both Republicans and Democrats, legal scholars disagreed on whether Koskinen’s conduct would constitute grounds for impeachment under constitutional language that specifies “treason, bribery or other high crimes and misdemeanors.”

“In my opinion, I think gross negligence doesn’t qualify,” said Michael Gerhardt, a professor of constitutional law at the University of North Carolina Law School. In his view, impeachable conduct would have to involve “bad intent,” he said.

Elbow Room
Yet other witnesses, including Jonathan Turley, a law professor at George Washington University, said the standard is broader. “It doesn’t have to be an indictable offense,” he said. The constitution’s framers also discussed citing “maladministration” as grounds for impeachment, he said. “This is a standard that has room at the elbows,” he said.

Despite pending congressional subpoenas for “all communications sent or received by Lois Lerner,” in March 2014, IRS employees in West Virginia magnetically erased 422 backup tapes, which eliminated as many as 24,000 of her e-mails. Subsequent investigations by the Justice Department and the Treasury Department’s inspector general found that the destruction was accidental.

Regardless, Koskinen testified to Congress in June 2014 that “since the start of this investigation, every e-mail has been preserved. Nothing has been destroyed.” He has said since that his testimony reflected his understanding at the time.

Republican Case
Representative Jason Chaffetz, who chairs the House Oversight and Government Reform Committee, filed an impeachment resolution against Koskinen last year. He and other Republicans say Koskinen failed to make sure the IRS produced a full record of e-mails sent and received by Lerner, the agency’s former director of exempt organizations. Chaffetz and others also accuse him of misleading Congress about a hard-drive crash that lost some of Lerner’s e-mails, as well as the subsequent destruction of the backup tapes.

A series of federal investigations into the IRS scandal faulted the agency for ineptness, but cleared it of criminal wrongdoing. In January 2014, the Federal Bureau of Investigation said it had found no evidence of bias that would warrant criminal charges. The Justice Department in October ended its own probe, which found “substantial evidence of mismanagement, poor judgment and institutional inertia,” but resulted in no charges.

‘Pressing Matters’
Democrats on the judiciary panel ridiculed Wednesday’s hearing. Representative Hank Johnson, of Georgia, likened it “to a dog chasing its tail.” “There are certainly more pressing matters demanding our attention,” said Representative Jerry Nadler of New York.

Chaffetz, a Utah Republican who also serves on the judiciary committee, was visibly irritated—and cast the impeachment drive in terms of asserting congressional authority to counter overreach by the executive branch. “It’s very frustrating,” he said. “Heaven forbid we get rid of somebody who lied to Congress,” he said later.

Last week, the oversight panel voted to censure Koskinen over similar claims. The 23-15 party line vote also recommended that his pension should be forfeited. Congressional censures of administration officials are rare, and generally would have no practical consequences. Neither the censure vote nor the impeachment resolution filed by Chaffetz and other Republicans has been promised a vote on the House floor.

McCarthy, the former prosecutor whose 2014 book, “Faithless Execution,” argued for the impeachment of President Barack Obama, said that by making impeachments rare, Congress is “greenlighting misconduct.” At the same time, he also said that any impeachment effort is doomed if it lacks widespread political support.

“If you don’t have public consensus that the official should be removed, the official won’t be removed,” McCarthy said.