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Appointing an IRS Independent Counsel Is a Terrible, Terrible Idea

It's probably bad for Obama, probably bad for his enemies, and certainly bad for America

Getty Images/Luke Frazza

You can tell a Washington scandal is nearing ripeness when people start calling for the appointment of a special counsel to conduct the investigation. So it is today with the IRS targeting of conservative groups. 

The calls to date come from two distinct groups: One consists of Republicans/conservatives who either sincerely believe only a special counsel can get to the bottom of things or who think siccing a special counsel on the Obama administration is the best way to inflict maximum political damage. The other, more liberal-leaning, is made up of people who think Obama can get his second term back on track by a conspicuous gesture to restore public trust and who incidentally also believe a special counsel won’t turn up much that is damaging.

Now, opinion on this subject is hardly unanimous. Let me join strange bedfellows Andy McCarthy and Michael Tomasky in agreement that a special counsel for the IRS investigation is a truly terrible idea.

McCarthy’s view is that a special counsel will shut down the flow of public information about the IRS abuses for months if not years as everyone clams up because of the criminal investigation, thereby undermining any chance of public accountability for the Obama administration. Tomasky, on the other hand, believes that that a special prosecutor would destroy the administration: “A special prosecutor . . . has no constraints on time or money. He can just keep turning over rocks until he finds something that smells suspicious. Of all the undemocratic institutions we suffer with in our democracy, it’s far and away the most undemocratic.” In the end, these are not exactly arguments against interest. McCarthy’s view is that Obama will be worse off politically without a special counsel, Tomasky’s that he will be worse off with one.

Either way, President Obama will sooner or later be confronted with a choice: He can accept the view that appointing a special counsel would be a good gesture to restore his credibility and, incidentally, dump the whole investigation into the secrecy of a grand jury room for years. He will also have the consolation that because the old independent counsel statute expired without renewal in 1999, the selection of a special counsel would not fall to a three-judge panel looking at Kenneth W. Starr’s updated C.V. but to people he could trust not to empower a partisan opponent. In the alternative, Obama can take the view that an independent counsel investigation could easily get out of hand and cripple the White House politically.

Tomasky thinks that Bill Clinton agreed to the appointment of a special counsel to look into his Whitewater real-estate investment because he knew he and Hillary hadn’t done anything wrong. I think external political pressure is a much better explanation. But we will assume for the sake of the argument that Obama doesn’t think he is in any personal legal jeopardy over the IRS. Could it be in his political interest to go along with a special counsel?

No, no, a thousand times no. The Ethics in Government Act, which codified the statutory office of independent counsel, was one of the worst “good-government” initiatives in recorded history. By the time Lawrence Walsh got done with the interminable Iran-Contra investigation, only Democrats loved independent counsels, and by the time Starr got done with the ever-expanding Whitewater/Lewinsky business, nobody liked them. People urgently need to recall their old grievances and nurse their old sore spots before another one of these extraconstitutional monstrosities gets unleashed.

The idea of a prosecutor accountable to no one, with one case, unlimited time, and unlimited funds is just — well, I wouldn’t call it “undemocratic,” as Tomasky did, because when pollsters get around to asking Americans whether a special counsel should be appointed to look into the IRS case, which they soon will, a majority will probably be in favor of one. But I think Tomasky picked that epithet because it’s the dirtiest word he knows for a bad public policy decision. Le mot juste is “tyrannical.”   

And no, the “special counsel” version is no better. People may cherish the illusion that a special counsel’s mandate can be contained, but try telling one his investigation is getting a little too zealous or taking too long or has turned into a fishing expedition. It can’t happen. Special counsels can go anywhere and subpoena anything, as could statutory independent counsels, and they do. They often get obsessed with their own investigations and start charging people with dubious “process" crimes such as perjury and obstruction.

Do Democrats really need to go through their own version of a Patrick Fitzgerald investigation to get this point? He was the special counsel who investigated the outing of Valerie Plame as a CIA agent in the Bush 43 administration, the outcome of which Republicans viewed nearly universally as illegitimate.

Yes, it is difficult for an administration to investigate itself credibly. So be it. That’s in the nature of the executive power in our system. Any “solution” ends up creating still worse problems. There may come a point when the path of least resistance for Obama is to acquiesce and agree to appoint a special counsel. If he does, he will almost certainly regret it.