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.