By now, most people reading this site will have heard the news: The Internal Revenue Service said Friday it has lost a trove of emails to and from a central figure [Lois Lerner] in the agency’s tea party controversy, sparking outrage from congressional investigators who have been probing the agency for more than a year. This is a serious matter. Obviously, the loss of the e mails could conceivably be innocent, but the circumstances suggest otherwise. Instead, the circumstances suggest that there was quite a bit of dirt in those e mails. The AP, the Washington Post, and the Wall Street Journal…
With additional disclosures coming out about the IRS’s improper behavior, support for a special prosecutor among the public and many commentators has grown. In contrast, Andrew McCarthy argues, in an essay (link no longer available) that many people have found convincing, against such a special prosecutor.
McCarthy make various points, but the gist of his argument is that 1) it is more important to publicize the improper behavior of the IRS rather than to punish the wrongdoers and that 2) a special prosecutor will interfere with publicizing that information because those being investigated by the special prosecutor will refuse to answer questions on the advice of counsel.
This is a strong argument on its own terms, but it commits one basic mistake. It assumes that the choice is between a serious congressional investigation or the appointment of an special prosecutor. But this is not true in two important respects. First, even without the appointment of a special prosecutor, IRS officials will attempt to avoid answering questions on the advice of counsel, because the Justice Department is now conducting a criminal investigation of the IRS scandal. The only difference between this investigation and that of a special prosecutor is the latter will be less subject to the direct control of Eric Holder and the Administration. (I say less subject to the control, because a special counsel will ordinarily represent that he will make independent decisions (and the AG may also promise independence), even though the special prosecutor is still technically subject to Administration control.)
Second, with or without a special prosecutor, the House can conduct a significant investigation. The House can offer immunity to witnesses, who then must answer the questions. It is true that the prosecutors don’t like this, but the House should ignore their concerns. Uncovering and publicizing the wrongful behavior of the IRS is more important than prosecuting the wrongdoers. But a special counsel need not interfere with that.
In light of a claim that the IRS has been harassing religious institutions (link no longer available), I would add an anecdote to further burnish bureaucratic bigotry.
For a few months late in the last century, I worked for the State Council of Higher Education for Virginia (SCHEV), evaluating the worthiness of courses as acceptable for college credit and, more seriously, whether prospective institutions of higher education might set up shop in the Commonwealth. A senior colleague handled public institutions such as the University of Virginia; I got to examine private for-profit institutions and some other private ones.