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

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.


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