The ‘Independent’ Counsel Mirage

by Andrew C. McCarthy
Don’t hand the IRS investigation over to a special prosecutor.

I confess to being amazed that President Obama and his trusty attorney general, Eric Holder, have not mollified their detractors by appointing an “independent counsel” to investigate the IRS scandal.

“Why,” you ask, “would Obama sic a prosecutor with independence from Holder’s Justice Department on a component of the Obama administration?” The real question is: Why hasn’t he?

The disconnect here lies in the public’s perception — and, perhaps, the perception of some congressional Republicans who ought to know better — of what an “independent counsel” really is. Independence is a mirage: Obama’s critics crave an evenhanded investigation of executive lawlessness and, in the Washington fashion, they have convinced themselves that wishing can make it so. As it actually exists, however, an “independent counsel” would be tailor-made for letting the administration and the IRS dodge accountability.

Let’s talk reality. As a matter of constitutional law, there is no such thing as an independent counsel. In our system, prosecution is a plenary executive power. All federal investigations and prosecutions proceed under the authority of the president; neither the Congress nor the courts have police powers. Any prosecutor, regardless of how “independent” we’d like him to be, would have to serve at the pleasure of the president, and would report to Eric Holder.

Is the constitutional bar to true prosecutorial independence a fatal blow to the goal of structuring a legitimate investigation of executive-branch misconduct? Not necessarily. For a scrupulous administration, careful political steps could address this legal conundrum.

Let’s say you had a president and attorney general who were regarded by even the opposition party as trustworthy. They could appoint a lawyer widely respected by both major parties as a pillar of rectitude and competence. Such an attorney’s reputation might convince the public to overlook the technicality that the lawyer would answer to the AG and, ultimately, to the president. But the attorney’s reputation on its own wouldn’t suffice. This “independent” counsel’s appointment would have to be accompanied by the president’s own very convincing demonstration that he regarded the investigation as a serious matter and was cooperating earnestly — in particular, by directing his subordinates, on pain of termination, to answer all questions and disclose all relevant evidence.

Now, let’s consider the Obama administration. President “I’m not interested in photo ops” is notoriously cynical and slippery — indeed, flat-out dishonest at times. His attorney general has already been held in contempt of Congress, owing to his penchant for providing misinformation. The president has publicly prejudged the IRS scandal as bereft of a “smidgeon” of corruption. The attorney general — notwithstanding the ethical canon that lawyers must avoid even the appearance of impropriety in the administration of justice — assigned this abuse-of-power probe to Barbara Bosserman, a heavy Obama and Democratic-party campaign donor.

Legitimacy is mostly a matter of trust. This president and this attorney general do not have the credibility to structure an independent-counsel investigation that sensible people would accept as a search for the truth. And never forget that they have stuck with the hopelessly compromised Ms. Bosserman for months — notwithstanding intense congressional criticism, reports that key witnesses have not been interviewed, and indications that relevant evidence has been destroyed with impunity. The suggestion that they might suddenly put the case in the hands of an impartial, impeccably credentialed former prosecutor with directions to go wherever the facts lead does not pass the laugh test.

What the president does have going for him are his media courtiers. They provide crisis cover for him, a task that requires increasingly less effort with the president now overloading our attention spans with crisis after crisis — a strategy redolent of the Cloward-Piven approach beloved of trained community organizers. This could pull him through the IRS fiasco . . . if he appoints an independent counsel.

It works this way.

Obama and Holder find a reliable Democratic lawyer to appoint as “independent” counsel — there being, oh, one or two of those around. It should be the J.D. equivalent of IRS chief John Koskinen: someone who knows what team he is on but whom all the other reliable Democrats will praise as probity personified. The note-takers in the press dutifully repeat the talking points about the “independent” counsel’s gravitas. Observing which way the wind is blowing, and anxious to claim “victory” in ostensibly forcing the president’s hand, Beltway Republicans applaud the appointment.

The story writes itself: Obama and Holder demonstrate their integrity by handing the IRS investigation to a litigator highly regarded by both sides of the aisle — a lawyer with a reputation for being methodical (i.e., slow) and leaving no stone unturned (after snail’s pace deliberation). The special counsel would ceremoniously announce that staff lawyers and investigators will soon be hired, followed by a methodical analysis of the information compiled to date that will leave no stone unturned — such that a grand jury could be convened, perhaps some time early next year.

Next, the witnesses clam up and the information flow is stanched — meaning, no more IRS news. “On advice of counsel,” IRS and other executive officials twaddle, “we cannot comment publicly on this matter, which is now the subject of an active criminal investigation.” (We’re all Lois Lerner now.) Between bows, the special counsel patiently explains that this is not congressional oversight: The rules of grand-jury secrecy prevent a prosecutor from commenting publicly on the investigation or issuing progress reports (not quite true, but close enough to be swallowed whole).

The special counsel would, of course, make one special exception to the self-imposed “no comment” rule: “It really would be a shame if, after the president gave lawmakers the independent investigation they demanded, Congress interfered with that investigation by continuing to convene hearings and, potentially, tamper with witnesses.”

“Yes,” the usual Republican suspects would somberly agree, “we have to let the process work.”

Ah yes, the process. You’ll have to trust them that it works . . . on those rare occasions when you pause to think about it. But how much thinking about the IRS do you suppose you’ll be doing once Congress stands down and news about it dries up?

When was the last time you thought about Fast and Furious? About the debt ceiling (or is it the retractable debt dome)? Or how about the just-announced EPA regs? It’s only been a few weeks since they were announced, and they could crush the most vibrant sector of our otherwise rigor mortis economy. Yet news coverage barely got to them, buried as they were between the VA scandal and the commander-in-chief’s replenishing of the Taliban. You can be excused for not remembering. Sure, it’s just the blink of an eye ago, but in Obama’s America Transformed, that’s the time it takes to roll out the welcome-mat for 300,000 illegal aliens.

You can have political accountability for abuses of power or you can have an “independent” counsel and “the process.” Political accountability is driven by congressional investigations and court cases brought by citizens whose rights have been trampled. It is messy, combative, and political, but the malfeasance it uncovers can result in the removal of corrupt officials from power.

By contrast, “the process,” under the steady hand of “independent” counsels, is neat, silent, and somnolent. In fact, once it starts, that may be the last you hear about it until President Obama pardons everyone on his way out the door.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book, Faithless Execution: Building the Political Case for Obama’s Impeachment, was released by Encounter Books on June 3.