Without a competent, impartial investigation, it will be tough to amass sufficient evidence to prove a willful violation of law. The officials implicated would surely claim — however dubiously — that they were just trying to enforce ambiguous regulations. Moreover, even if executive-branch officials could be proved criminally culpable, any prosecution of members of Congress would face a severe roadblock: the broad constitutional immunity lawmakers enjoy whenever arguably engaged in “legislative acts.” Remember Representative William Jefferson, whose crass acceptance of bribes did not stop a federal appeals court from invalidating an FBI search of his Capitol Hill office.
In any event, as I argued here last weekend, to focus on criminal or civil liability is to miss the point. The importance of government officials lies in the public trust reposed in them and the awesome power it entails. When they demonstrate themselves to be unworthy of that trust, the imperative is to take the power away.
The IRS has become a vehicle of repression — one that Democrats have further empowered through Obamacare. Its budget should be slashed, and we should figure out better ways to raise revenue. In addition, government officials have engaged in conduct that, at a minimum, grossly disregarded the constitutional rights our government exists to safeguard. Whether such serious misbehavior is attributable to incompetence or corruption, the officials who engaged in it should be defrocked. Most of us couldn’t care less whether they are sent to jail or successfully sued, but we should all insist that they no longer wield power.
The most ominous development in the IRS scandal is the confederation of executive and congressional authority in opposition to our fundamental rights. The accumulation of all government powers in the same hands, Madison warned, “may justly be pronounced the very definition of tyranny.” In a free society, powers must be separated. The Framers thus gave us a Constitution that heeded the wisdom of Montesquieu:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
The IRS scandal presents a textbook case of tyrannical execution. It is fraught with peril. We are dealing not merely with a single president, who presumes to rule by decree; nor just with his congressional partisans, who presume to pull the executive bureaucracy’s coercive levers. Enormous power is cumulating in an ideological movement that is hostile to free expression, one that views its political opposition not as fellow citizens with a different point of view but as enemies to be silenced and destroyed.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His next book, Faithless Execution: Building the Political Case for Obama’s Impeachment, will be released by Encounter Books on June 3.
Editor’s Note: An error in this column as it originally appeared has been corrected, as explained here.