Glenn Reynolds: Impeach EPA Admin Gina McCarthy? Is impeachment the only solution for lack of executive accountability?

Glenn Harlan Reynolds | USA TODAY

Congress is considering impeaching Gina McCarthy, a statement that is likely to produce two questions in most Americans' minds: (1) Who is Gina McCarthy; and (2) How can we impeach the head of the Environmental Protection Agency?

As the second part makes clear, Gina McCarthy is the EPA Administrator. Rep. Paul Gosar (R-Ariz.) has introduced a resolution of impeachment against her because he says she lied during testimony about the EPA’s new clean water rules. Says Gosar: "Perjury before Congress is perjury to the American people and an affront to the fundamental principles of our republic and the rule of law. Such behavior cannot be tolerated. My legislation will hold Administrator McCarthy accountable for her blatant deceptions and unlawful conduct."

McCarthy is accused of perjuring herself three times, in discussing the scientific and engineering basis for those rules. So, you might wonder, why not just prosecute her for perjury?

The problem is that criminal prosecutions are brought by the executive branch, and there’s not much chance that Obama administration Attorney General Loretta Lynch will bring a perjury prosecution against a fellow member of the administration. And there’s nothing Congress can do to change that. Congress could choose to hold McCarthy in contempt of Congress — as it did, in fact, to Lynch’s predecessor, former attorney general Eric Holder — but contempt of Congress is enforced by the executive branch, too.

The framers of the Constitution knew that, of course, which is why they gave Congress another power, that of impeachment. Congress’s impeachment power was designed to be weaker than that of the British parliament, which could impeach anyone (except the king) for any reason, and subject that person to any penalty it chose to apply, including such things as death, branding and life imprisonment in the Tower of London.

By contrast, Congress’ impeachment power applies only to “civil officers of the United States.” Private individuals are immune and military officers are subject only to courts-martial. But “civil officers” include not only the president — usually the focus of impeachment talk — but also lower level officials.

And, in America, the punishment for impeachment consists only of removal from office, and, if Congress so chooses, disqualification from holding any further federal office.

So why impeach McCarthy? Well, Congress has had a lot of trouble with this administration. The IRS stonewalled on the emails implicating Lois Lerner in political targeting of Tea Party groups, the State Department (and Hillary Clinton personally) have stonewalled and foot-dragged on releasing Hillary’s emails, and other officials, such as Director of National Intelligence James Clapper, have provided “clearly erroneous” statements to Congress and suffered no penalty.

Traditionally, presidents have been willing to sacrifice underlings caught in this sort of behavior, but the Obama administration hasn’t been so quick to force them out. And like any behavior, lying to Congress and stonewalling congressional oversight becomes more common when it becomes clear that there will be no significant price to be paid.

Impeaching lower level officials may be a solution. Not only is the threat of removal from office a significant one, but most cabinet officials — and even many lower-level appointees — have bigger ambitions. Rendering them ineligible for further federal office is a genuine threat.

That’s why impeaching McCarthy — and, as some, including Ed Morrissey, have already suggested, IRS chief John Koskinen, whose stonewalling over the IRS political-targeting scandal has been egregious, or Clapper — might encourage better behavior in the future. The Republican House majority leader says it won't happen, but as Congressional Republicans seek a way to hold the Obama administration accountable, the pressure to do something may change that political calculus.

We live in a world where these officials pay no price, and where no one lost their job over the EPA’s disastrous Colorado mine spill, and where the Veterans Administration is in many cases firing whistleblowers before accountable officials for botched veteran care.

Is impeachment the answer to lack of accountability in the executive branch? If it isn’t, what is?

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.

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