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Posted on 05/22/2013 8:00:46 AM PDT by SeekAndFind
It is the Washington way. Egregious misconduct surfaces, showcasing the militantly officious nature of bloated big-government bureaucracy. But the Beltway and the commentariat cry in unison for a special counsel, ensuring that the symptoms — a few corrupt bureaucrats — will get all the attention while the underlying cancer metastasizes.
In the unfolding IRS scandal, we already know President Obama’s conservative political opponents were targeted for the revenue agency’s version of waterboarding. On cue, prominent Republicans and conservatives are starting to call for a special counsel — clearly under the misimpression that a “special counsel” would mean a prosecutor “independent” of the Obama Justice Department. Here at NRO, my friend Larry Kudlow lends his voice to those advising the GOP that a special counsel is the way to go. With due respect, I think it would be a blunder.
The special counsel is a legal anomaly. More important, pushing for one sends entirely the wrong signals. It indicates that criminal culpability takes precedence over political accountability. Worse, it suggests that the evil here is the malfeasance of a few government officials. To the contrary, the problem is a perversely complex regulatory framework that gives the IRS — which should simply collect taxes based on an easily knowable formula — enormous discretionary power to discriminate and intimidate. That makes the IRS an un-American weapon, particularly when it is controlled by an Alinskyite will-to-power administration. Sure, we can worry about prosecuting the weapon-wielders at some point. The urgent problem here, though, is the weapon itself. Our energy should be devoted to exposing the scandal in the light of day and shaming Washington into dismantling the IRS — which is actually planned to swell markedly, and grow even more intrusively offensive, under Obamacare.
Let’s start with the law. Special-counsel proponents seem to think “special” means “independent.” Larry, for example, contends that “an independent special counsel can investigate any possible White House connections with senior Treasury officials, connections that could lead to the Oval Office” (emphasis in original) — adding in conclusion that “only an independent special counsel could possibly straighten this mess out.” Under our law, however, special counsels are not independent of the administration in power.
A quarter-century ago, Justice Antonin Scalia presciently argued against the independent counsel in his famous Morrison v. Olson dissent. In our constitutional system, all executive power is reposed in the president. The conduct of criminal investigations is, unquestionably, a purely executive power. Consequently, there cannot be any legitimate federal exercise of prosecutorial authority independent of the executive branch.
“Special” counsels may be special in the sense that they are singularly dedicated to a particular investigation. They may even be exempted from the Justice Department’s ordinary prosecutorial structure (in which each case is investigated by the U.S. attorney’s office in the district with jurisdiction over the offenses alleged to have taken place). But special counsels are not independent of the executive branch. They still answer to the attorney general and, ultimately, the president.
Any other arrangement violates the Constitution’s separation-of-powers principle. It deprives the president of control over the exercise of executive power. It creates a politically unaccountable fourth branch of government, whose myopic mission is to pursue one target (or set of targets), burdened by none of the constraints — political, budgetary, substantive, or procedural — that ameliorate the Justice Department’s aggressiveness.
Our historical experience with independent counsels has demonstrated them to be just the monstrosity Justice Scalia foresaw. Although the Morrison Court upheld the independent-counsel provisions enacted by the post-Watergate Congress (in the 1978 Ethics in Government Act), Congress prudently allowed statutory authority for independent counsels to lapse in 1999. By then, both parties’ oxen had been gored aplenty, from Iran-Contra through Monica Lewinsky.
We have had “special” counsels since that time, but no independent ones in the sense of formal autonomy from the Justice Department and the president. And the more independent the charters of special counsels have been, the more strident have been the complaints about their zeal. In the most recent example, Patrick Fitzgerald (full disclosure: a longtime friend of mine) was given an especially wide berth by the Bush Justice Department to investigate an allegedly felonious leak of classified information. As it turned out, the leak was not unlawful, yet Fitzgerald ended up first jailing journalist Judy Miller for contempt (Miller refused, for a time, to identify her sources to his grand jury), then prosecuting Scooter Libby not for the leak but for “process crimes” (i.e., offenses — perjury and lying to agents — alleged to have been committed during the investigative process). Those legitimately worried about leaks were left unsatisfied while Libby admirers remain convinced that he was railroaded.
Let’s put law and atmospherics aside and try to be completely practical. The imperative in the IRS scandal is not criminal prosecution. It is political accountability: to lay bare what corrupt officials have done, for the purpose of swiftly determining whether they are unfit to hold offices of public trust and whether the system in which they operate tends to corruption. The appointment of a special counsel would undermine that goal.
The moment a prosecutor — special or otherwise — takes over, the public flow of information stops. All witnesses will claim that the pendency of a criminal investigation means they cannot discuss the matter “on advice of counsel.” They will cease cooperating with congressional investigators. The prosecutor will claim that grand-jury secrecy rules bar comment about the expansive investigation (a claim the government routinely makes, even though the rules actually bar comment only by the prosecutor, investigative agents, and grand jurors — not the witnesses).
Public disclosure should be the goal here. It is the one thing that has driven the IRS story to this point. Public disclosure of the shockingly intrusive harassment of the president’s political opponents, the prohibitive legal and regulatory expenses imposed on ordinary people for merely exercising their right to participate in the political process, is what has broken through the administration’s Obamedia fortress. Yet public disclosure is precisely what would be lost if Congress were to punt its oversight responsibilities to a special counsel. Investigative secrecy is the prosecutor’s stock in trade, for good reasons. It is how you build an airtight case. When the most important thing at stake is bringing lawbreakers to justice, it is a shroud of secrecy worth having. In the IRS scandal, however, criminal liability is a decidedly secondary concern. The shroud of secrecy would enable the press to kill the story, and right now it’s the story that matters.
There will be plenty of time later to prosecute wrongdoers. The statute of limitations on most federal crimes is five years. At the moment, what’s called for is a public reckoning for the IRS: an investigation designed to shine the light of day on what actually happened, who was involved (whether or not they are criminally culpable as opposed to just sleazy), who should be pressured to resign — or should be removed — from public office, and how government revenue collection should be restructured to ensure it cannot be used as a partisan weapon. That kind of investigation would demand the media’s continuing attention. It can be done only by Congress — and would be best done, as would the Benghazi investigation, by a select committee that issues subpoenas and holds public hearings.
Of course, Democrats will say it is partisan — that’s what the party on defense always says in these situations. But regarding the question of whether the investigation was a witch hunt, congressional Democrats would be able to make their case to the public . . . just as Republicans could make their case that this is very serious business indeed. Americans could decide for themselves.
A special counsel, by contrast, would make the investigation disappear from public view, for months if not years.
Two final points. First, the Framers understood that we are a body politic, not a legal community. The remedies they gave us for addressing executive-branch corruption are impeachment and congressional control of the purse. These are political remedies, not legal ones. They empower Congress to remove unfit government officials and defund rogue agencies. The Framers would have been astounded at the notion that Congress’s responsibility to ensure the proper working of government could be delegated to an unaccountable prosecutor. The paramount question is whether the government is out of control, not whether some mid-level official (or even a higher official) can be convicted by a jury.
Second, the massacre of four American officials in Benghazi has just given us the State Department’s version of a special counsel: an entity given the Orwellian title of the “Accountability Review Board” (ARB). Secretary of State Hillary Clinton hand-picked some old Washington hands who, with the patina of credibility the legacy media vests in old Washington hands, reliably found nothing to see — no reason, even, to interview Clinton, notwithstanding that she is neck-deep in the scandal. Thanks to public congressional hearings, it becomes clearer by the day that heinous derelictions of duty were committed. Yet, the State Department and the White House waive the ARB report around as if it were a serious, exculpatory conversation-ender.
A special counsel chosen by Attorney General Eric Holder and President Obama would be no different. It would not get us to accountability; it would be a severe impediment to accountability. And it would be a lifeline for the IRS.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.
And people wonder why some of us .....
Absolute fact.
This is going to get sticky for the head shed.
And this is why they’ll appoint one post haste. Anyone counting on the pubbies to do anything MEANINGFUL about all this is delusional.
These hearings are all kabuki.
these hearings are a joke, people need to be arrested and charged for they violated the law plain and simple.
Oh and this country is being run like a third world dictator,
intimidation
wiretapping,
spying,\
depts. going after citizens,
dead Americans,
cover ups,
I’m not going to list all the corruption done in these last few years but it still seems that people are still not angry and are not talking about this at their work, to their friends, family etc.
Every time I click on CNN to see what they are reporting is about this dopey trail of a woman who killed her boyfriend or husband.
MSNC , sorry MSLSD is all about this is a witch hunt and the local papers, news etc are not even mentioning this
Hey buddy. Crimes were committed. Many crimes against many citizens.
Watching these hearings is a colossal waste of time. I’m watching a cake decorating video. At least I’m learning something constructive.
After all the times the pubbie establishment has stabbed the tea party and conservatives in the back, I’m AMAZED at the tea party and conservative people who think the pubbies will actually DO anything about the current abuses.
Hint: Most republican GOPE types are and were cheering for the abuses. GOPE HATES the tea party and conservatives.
An interesting take, a worthwhile viewpoint to read.
Nothing. Will. Happen.
The GOPe. You know, those GOPers who are actually in charge of the committee thing (remember Bonehead purging conservatives from these positions back in December?) will do NOTHING about these abuses.
Nothing.
“Let’s put law and atmospherics aside and try to be completely practical. The imperative in the IRS scandal is not criminal prosecution. It is political accountability: to lay bare what corrupt officials have done, for the purpose of swiftly determining whether they are unfit to hold offices of public trust and whether the system in which they operate tends to corruption.”
No, the imperative is the destruction of the Kenyan anti-Christ and as much of the Democrat party and its toadies that comprise the mainstream media as is possible. Death is to be preferred for these criminals, from the top down, but long terms of imprisonment followed by permanent forfeiture of civil rights and the ability to hold office or other position of trust, or own property would suffice.
The way to “fix” this is to scare all incumbent Democrats into believing they will lose their cushy seats over the scandals. The fact that the Big “O” would lose his base might force him into a Nixonian withdrawal rather than suffer through an impeachment trial with a problematical outcome. His narcissistic personality would be pulled in opposite directions causing his Marxist head to really ache. Write to your Reps even if they are of the Lib party and let them know that their seats are on the line. You will be amazed at the stupid replys you get from their interns. Know however, that the for and against get passed on to the member. Your individual squawk will represent the opinion of hundreds of voters in the mind of the congresscritters.
The bastards plan to get away with it.
The GOPe hates conservatives and the Tea Party nearly as much as the commierats do.
Precisely. These hearings are political theater.
bkmk
This philosophy of "never waste a crisis to completely remake the world in a libertarian image" results in the wasting of crises.
Get the convictions first. Then worry about how to institutionalize changes to the IRS to prevent abuse.
This philosophy of "never waste a crisis to completely remake the world in a libertarian image" results in the wasting of crises.
Get the convictions first. Then worry about how to institutionalize changes to the IRS to prevent abuse.
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