Is It Time for a Special Prosecutor?

Is It Time for a Special Prosecutor?

By Carl M. Cannon - June 20, 2014

The anniversary of the Watergate burglary arrived this week, along with the disquieting revelation that it’s not just disgraced former Internal Revenue Service official Lois Lerner who’s taking the Fifth. Her email is clamming up, too.

More than a year into the controversy over the tax agency’s targeting of conservative non-profit groups, IRS officials casually told congressional investigators last week that a 2011 computer crash caused thousands of sought-after Lerner emails to disappear.

So, can the mess at the IRS now objectively be called an Obama administration scandal?

Hillary Clinton seemed to acknowledge as much. “I think that anytime the IRS is involved,” she told Fox News host Greta Van Susteren, “for many people it’s a real scandal.”

White House officials don’t concede the point. “You’ve never heard of a computer crashing before?” presidential spokesman Josh Earnest told reporters. “The far-fetched skepticism expressed by some Republican members of Congress,” he added, “I think is not at all surprising and not particularly believable.”

With its unprecedented abuse of executive power, no modern scandal was ever like Watergate, but this was a passable imitation of Richard Nixon’s press secretary Ron Ziegler, who said two days after five suspects were arrested in the Watergate break-in that “certain elements may try to stretch this beyond what it is.”

President Obama himself hasn’t been above channeling Nixon, either. When the story first broke that the IRS was targeting groups with “Tea Party” or “Patriot” in their names, he told reporters aboard Air Force One that these machinations were all the work of a few rogue agents in an Ohio IRS office -- “two Dilberts in Cincinnati” was the president’s phrase.

After it turned out that the Washington office was actually calling the shots, Obama didn’t change his story. Yes, some “bone-headed decisions” were made, he told Fox News host Bill O’Reilly -- but it didn’t entail “even a smidgen of corruption.”

Perhaps that’s true. But the question is how the American people are supposed to discern the truth. One way to get those missing emails would be with a federal inspector general complete with subpoena powers. Another -- and God help me for saying this -- would be a special prosecutor.

Watergate begat the independent counsel system, enacted by law as a post-Watergate reform by a Congress burned by the memory of the “Saturday Night Massacre” -- Nixon’s firing of one attorney general after another until he found someone willing to sack special prosecutor Archibald Cox. It was only a temporary victory for the beleaguered president, but it convinced most Americans -- and not just Democrats -- that the Justice Department couldn’t be trusted to investigate executive branch wrongdoing.

Problems with the new reform arose from the start, however. Theoretically, special prosecutors were subject to judicial oversight, but in practice they were on their own. With no bosses, no time constraints, and no limitations on the scope of their probe, special prosecutors tended to turn into Inspector Javiers -- if the villain of “Les Misérables” had had an unlimited budget and no superior.

As the abuse of executive power gave way to the abuse of prosecutors with more power than British kings wielded at the time of the American Revolution, it became clear that the reform-minded liberals swept into power in the post-Watergate Democratic landslide of 1974 didn’t actually know more than the Framers.

It took a while for Democrats to fathom the problem, which was that many of the independent counsels appointed in the 1980s lack the trait known as “prosecutorial discretion.” This was understandable: many of them had never been prosecutors. And as independent counsels they contended with none of the normal checks and balances in courthouse politics -- because they never had to face the voters. Accountable to no one, they didn’t balance the alleged transgressions of their target with more serious cases -- because they didn’t have other cases.

“A one-case lawyer with nobody to question what is done in the investigation is a dangerous person," observed noted Washington attorney Jacob Stein, who served as both an independent counsel -- he didn’t indict -- and a lawyer representing a client caught up in a notorious example, the investigation of prominent Republican Theodore B. Olson.

A top legal official in the Reagan administration, Olson was investigated by a zealous special prosecutor named Alexia Morrison. Tasked with determining whether Olson lied to Congress over an EPA decision (he hadn’t), she took 28 months -- and several million taxpayers’ dollars -- before simply deciding to do nothing.

Olson responded by challenging the constitutionality of the law. The case went all the way to the Supreme Court, before Olson lost. But he left us with a tidy summation of the distorted incentives in the system: “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.”

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Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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