The ‘Independent’ Counsel Mirage
Don’t hand the IRS investigation over to a special prosecutor.

Attorney General Eric Holder and President Barack Obama in January 2014 (Mark Wilson/Getty)


Andrew C. McCarthy

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.