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.