Special Prosecutors: Be Careful What You Wish For

There have been various calls in recent days for the appointment of an independent counsel to explore and expunge the IRS’s selective investigation of conservative groups seeking tax-exempt status after 2009.

From the right, Peggy Noonan in the Wall Street Journal claims, for instance,that “we are in the midst of the worst Washington scandal since Watergate.” If you can get past this cheap hyperbole (Ms. Noonan herself worked in a White House marked by a worse scandal, Iran-contra, and in 1998 she thought President Clinton deserved impeachment), her point is worth noting:

“Independent counsels should not often come in and distract the U.S. government from its essential business…. [but] what happened at the IRS is the government’s essential business. The IRS case deserves and calls out for an independent counsel, fully armed with all that position’s powers. Only then will stables that badly need to be cleaned, be cleaned.”

From the left, Bill Keller in the New York Timesagrees: such an appointment would show the president truly takes any IRS wrongdoing seriously, he says, and “it’s the surest way to get answers the public might trust.” But most crucially, and here he intersects with Noonan, “The third reason for a special counsel is that the government has serious business to conduct, and the scandal circus on Capitol Hill is a terrible distraction.”

This all sounds very high-minded (Noonan even denounces as “shameful and shallow” any effort by “any Republican operative or operator to…turn it into a mere partisan arguing point and part of the game. It’s not part of the game. This is not about the usual partisan slugfest.”  Keller one-ups her by calling for the appointment of Clinton nemesis Ken Starr to the post.)

But if we know anything about the history of special counsel investigations, it is that we know that they are not, in fact, either high-minded or apolitical. The investigation may be nonpartisan, but the effects are not. The sideshow saga surrounding the investigation of the “outing” of Valerie Plame during the Bush II years is sufficient to give one pause on this point; but ponder, too, of course, the investigations by Starr or Lawrence Walsh or the five other independent counsels at work during the Clinton years. (Wake Forest political scientist Katy Harriger’s book on the topic gives much more detail.)

In short, appointing a special prosecutor may be the right thing to do. But the idea that this would partition off the IRS scandal from the rest of Washington and allow some sort of ‘space for governance’ is very dubious indeed.

To be sure, the structuring of any given special investigation could differ; but Noonan and Keller both call for a broad remit and total independence. Along these lines it is worth remembering the 1988 Supreme Court decision Morrison v Olson. By a 7-1 vote (Justice Kennedy did not participate) the Supreme Court upheld the constitutionality of the Independent Counsel Act (ICA), part of the Ethics in Government Act, a post-Watergate reform package passed in 1978. The ICA allowed for an odd quasi-judicial/executive appointment power for independent counsels, and IC target Ted Olson (yes, that Ted Olson) argued this structure violated the separation of powers by buffering counsels from the presidential removal power (and also wandered into Article III by the creation of a separate court). The Court held these were permissible infringements given the broader governmental interest in promoting the public trust and fighting executive branch corruption.

Only Justice Scalia dissented from this finding, a dissent which provided both a full-throated defense of “unitary executive” theory” and, more crucially for present purposes, a prescient vision of the use of the ICA as political weapon:

“The context of this statute is acrid with the smell of threatened impeachment…. [B]y the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts and is worth the cost in money and in possible damage to other governmental interests….

“How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds—or, for that matter, how easy it is for one of the President’s political foes outside of Congress—simply to trigger a debilitating criminal investigation of the Chief Executive under this law…. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution….”

The brief filed in the Morrison case by three ex-Attorneys General, from the Ford, Carter, and Reagan administrations (Edward Levi, Griffin Bell, William French Smith) also seems apropos:

“[T]he institutional environment of the Independent Counsel—specifically, her isolation from the Executive Branch and the internal checks and balances it supplies—is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests.”

Or, as Ted Olson himself put it, “If you are given a fishing license which has the name of a fish on it, and you don’t come back with that fish, you’ve failed.”

Certainly, in the present case, if there are criminal issues they should be investigated and charges brought. But simply calling someone a “special prosecutor” does not in itself cordon off a ‘safe space’ outside of which normal policy-solving political bargaining (if that’s normal now) can continue unaffected.  There are good reasons that the ICA was allowed to expire unceremoniously, with the blessing of both parties, in 1999.

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