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In Congress, Mixed Feelings on IRS Special Counsel

In Congress, Mixed Feelings on IRS Special Counsel

By Caitlin Huey-Burns - May 28, 2013

Lawmakers haven’t been getting many answers from witnesses about who ordered enhanced IRS scrutiny of conservative groups applying for tax exemptions -- and why. Instead, they’ve left hours-long congressional hearings with little more than red faces.

Massachusetts Democratic Rep. Steve Lynch, a member of the House Oversight and Government Reform Committee, was so frustrated last week that he threatened to call for a special prosecutor if his panel continued to meet with “obstruction or refusal to answer the questions” in its investigation.

But there are mixed feelings on Capitol Hill about taking that route.

While an independent investigation might obtain more answers than Congress can -- and then give way to a grand jury if criminal activity is indicated -- lawmakers are concerned that once the case is removed from their hands it could fade from public view and interest.

And though some Republicans would delight in the headache a special counsel could create for the Obama administration, many distrust the man who would be tasked with appointing such an investigator: attorney General Eric Holder, whom House Republicans voted to hold in contempt of Congress last year and whose Justice Department’s clandestine probing of reporters’ phone records has angered lawmakers even more.

The mere mention of a special prosecutor calls to mind Kenneth Starr of the Whitewater and Monica Lewinsky scandals during the Clinton administration. But Starr was appointed by a D.C. Circuit appellate court -- and not by the attorney general -- under a statute that expired in 1999 and no longer applies. Patrick Fitzgerald also garnered national attention for the investigation of the Valeria Plame CIA leak case, which led to the conviction of then-Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby.

It could also be a costly enterprise in an era of fiscal-responsibility messaging. “If you go back to the original Whitewater investigation, it was about whether the White House interfered in an ongoing Treasury investigation,” John Podesta, chief of staff to then-President Bill Clinton, told MSNBC, referring to the controversy surrounding the Clintons’ real estate investments. “We spent seven years and $100 million and two independent counsels to find out no one did anything wrong.”

Congressional leaders say they are in the beginning phases of their investigation, and it’s just too early to call for further legal steps.

The controversy has consumed much of this short legislative session, but there have only been three hearings on the IRS case specifically (the House Judiciary Committee brought Holder in to testify about the reporter subpoenas, and lawmakers also questioned him about the tax service targeting).

At this point, House Speaker John Boehner trusts Dave Camp’s Ways and Means Committee and Darrell Issa’s oversight panel to conduct their investigations. “I think the Department of Justice can do this, but I think Congress has its job to provide oversight, not only of the IRS, but to make sure the investigation is thorough and complete,” he told Fox News recently, saying that it is “inconceivable” that the president did not know of the targeting until after reading press reports.

Senate Minority leader Mitch McConnell has said that Congress is capable of handling these kinds of inquiries. But the Kentucky lawmaker has hinted there may be more for the Justice Department to do, and in an interview with National Review Online he expressed openness to appointing a special counsel. McConnell has also voiced frustration with the dearth of answers thus far and has accused the administration of “stonewalling” Congress.

During a speech on the Senate floor last week, he said constituents are owed “a detailed and deliberate investigation. That’s why both House and Senate committees have begun investigations into the matter.”

He continued: “I’m willing to bet there’s still a lot more we’ll discover in terms of scope, in terms of timeline, in terms of who was involved -- and why. But we certainly can’t go about fixing the problem -- we can’t remove all those who need to be removed, we can’t put safeguards in place if they’re deemed necessary -- until we find out those details.”

Other lawmakers have called for the appointment of an independent prosecutor. Republican Sen. Rob Portman told ABC News that a “special counsel is going to end up being necessary here, because it has to be independent of the White House.” He added, “We need to find out what really happened and ensure that we can begin to regain some trust in our government.”

GOP Rep. Trey Gowdy, himself a former federal prosecutor, told RCP that while it’s up to DOJ and not Congress to appoint a special counsel, doing so could help the inquiry because there are limits to what Congress can do in criminal actions and “the real power in investigation is the grand jury.”

Holder has ordered an FBI probe into the IRS controversy, and Republican Senate Finance Committee members wrote a letter to the inspector general for tax administration (who recently published an audit of the matter), asking for a probe into reports that the IRS shared confidential information about conservative groups with those organization’s opponents.

Legal experts note that there should be reason to believe criminal offenses occurred before an outside prosecutor is warranted. During testimony earlier this month, Holder said he did not yet know if any crimes were committed by the IRS in this case.

Public outcry could pressure the administration to ask the DOJ to appoint a special counsel. President Obama has not indicated interest in venturing down that road, but proponents of such a move say an independent investigation could help restore trust and show the public his commitment to addressing the matter.

Of course, the IRS scandal is not the only one on lawmakers’ minds; there is growing furor over the subpoenaing of reporters’ records, intensified by the seizure of Fox News reporter James Rosen’s emails. Holder has recused himself from the case involving the Associated Press because he had previously been interviewed by the FBI in the corresponding leak investigation and wanted to avoid a conflict of interest. But he signed off on the search warrant for Rosen, as the department was concerned about leaks from a state department official involving North Korea.

Obama has asked Holder to review how the DOJ handles investigations involving journalists and to report back by July 12. GOP Sen. Tom Coburn told CBS’s “Face the Nation” on Sunday that Holder investigating his own department’s procedures presents a conflict of interest.

On “Fox News Sunday,” Republican Sen. Lindsey Graham called for a special prosecutor to investigate both the IRS and DOJ cases. Regarding the former, he said he believes there was an organized effort within the agency to scrutinize the president’s political opponents.

But, appearing on the same program, Democratic Sen. Dick Durbin disagreed with Graham about the need for a special counsel for either case. “I'm not ready to do this at this point,” he said. “I'd like to know if Holder has any conflict in here beyond what we've heard when it comes to the Fox case.” 

Caitlin Huey-Burns is a congressional reporter for RealClearPolitics. She can be reached at chueyburns@realclearpolitics.com. Follow her on Twitter @CHueyBurnsRCP.

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