McCarthy Seen Safe From House Impeachment Attempt

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By Anthony Adragna

Sept. 14 — House efforts to impeach Environmental Protection Agency Administrator Gina McCarthy will not succeed, according to a group of a dozen experts that includes some of the agency's sharpest critics.

Academics, political strategists, industry groups and several former Republican aides all told Bloomberg BNA Sept. 14 that Rep. Paul Gosar's (R-Ariz.) articles of impeachment against McCarthy smacked of purely partisan political theater and had no chance of actually succeeding.

“There is little or no chance of success,” Michael J. Gerhardt, a professor of constitutional law at the University of North Carolina, said. “Ultimately there must be at least two-thirds of the Senate to concur on removal in order to oust the administrator. But there's no such widespread support within the Senate to accomplish that end. This seems like an election year stunt, not a serious constitutional undertaking.”

Gosar formally introduced a resolution (H. Res. 417) to impeach McCarthy Sept. 11 with 20 House Republican co-sponsors after teasing his effort earlier in the week. The resolution argues McCarthy committed perjury during three separate congressional hearings on a Clean Water Act jurisdictional rulemaking, thereby committing “high crimes and misdemeanors”.

Removing a federal official is a two-step process. First, a majority of House members would need to pass articles of impeachment and then two-thirds of the Senate would have convict that official to force removal.

The EPA slammed Gosar's push for impeachment in a statement.

“Administrator McCarthy is a dedicated public servant who performs her duties with the utmost respect for the law,” said Laura Allen, an EPA spokeswoman. “This exercise has zero merit and is nothing more than political theater.”

‘Not Bloody Likely.'

Charles Geyh, a law professor at Indiana University Bloomington, said a successful impeachment was “not bloody likely,” because a Cabinet-level official would likely be forced to resign before Congress acts.

Just one Cabinet-level official has ever been successfully impeached—William Belknap, secretary of war for President Ulysses S. Grant, in 1876—and he resigned before the Senate could force his removal.

“Over the years, any number of cabinet officials have been embroiled in scandals, but resignation is the preferred remedy,” Geyh, who advised then-Sen. Joe Biden during U.S. Supreme Court Justice Clarence Thomas's confirmation hearings, said in an e-mail.

“If the Republicans are exercised enough—or if they see strategic advantage in publicizing the matter in anticipation of the 2016 elections—they could pursue this to the point of a House impeachment, but without the two-thirds vote necessary in the Senate, it will die there,” Geyh continued.

‘Non-Serious Response.'

Some of the sharpest critics of the EPA's final Clean Water Act jurisdictional rulemaking (80 Fed. Reg. 37,054; RIN 2040-AF30) had little positive to say about Gosar's effort to impeach McCarthy.

“Impeachment is a non-serious response to a serious issue,” Brent A. Fewell, former EPA principal deputy assistant administrator for water under the George W. Bush administration and now a partner at Troutman Sanders LLP, said. “The rule is currently being litigated in the courts where the legality of the rule should and will be decided.”

Even some of the agency's sharpest critics distanced themselves from Gosar's efforts. The National Mining Association told Bloomberg BNA it “played no part in this,” the American Energy Alliance declined to comment and the American Farm Bureau Federation said impeachment was “purely a matter for Congress.”

Several former senior Republican congressional aides also told Bloomberg BNA the efforts faced low odds at success.

“If [House Republicans] can get bipartisan and bicameral support for it, there's always a chance,” John Feehery, a former House leadership staffer now with Quinn Gillespie and Associates, told Bloomberg BNA. “But given the partisan makeup of the signatories, that seems pretty unlikely.”

‘More Sad Than Surprising.'

Groups frequently supportive of President Barack Obama's environmental efforts condemned Gosar's efforts as a politically motivated stunt and a little more than a “desperate distraction” to embarrass the agency.

“It's more sad than surprising,” Melinda Pierce, legislative director for the Sierra Club, said in a statement. “Thankfully, this gimmick to attack clean air and water safeguards has about as much chance of succeeding as Administrator McCarthy wearing a Yankees cap around town.”

Vermont Law School Professor Patrick Parenteau, who supports the clean water rulemaking, said House Republicans were merely looking to bully McCarthy.

“If this were a court of law instead of the House of Representatives, a pleading like this would fall into the category of malicious abuse of process,” Parenteau said. “Fortunately Administrator McCarthy is a strong and determined public servant who is not easily intimated by such crass partisan bully tactics.”

Chris Miller, former environmental adviser to Senate Minority Leader Harry Reid (D-Nev.), said simply: “This House appears bent on seeking new historical lows.”

Disappointment Over Personal Attack 

Michael McKenna, a Republican lobbyist and strategist, told Bloomberg BNA the impeachment effort was part of a “disturbing trend” to launch personal attacks against administration officials and said attempting to criminalize policy differences was a “bad idea.”

“I don’t particularly like the way she has done her job, I don't particularly like her, and I am pretty sure she and the truth don’t have much of a relationship, but I don’t think she has committed a crime,” McKenna said in an e-mail. “Both sides seem to want to criminalize differences. That is a very dangerous thing.”

A spokesman for Gosar did not respond to questions over whether the House had committed to consider the impeachment resolution.

—With assistance from Amena H. Saiyid in Washington

To contact the reporter on this story: Anthony Adragna in Washington at aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The text of the resolution (H. Res. 417) is available at http://1.usa.gov/1Lkl6gW.