A Special Prosecutor for the IRS Scandal

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.

Thus, not appointing a special prosecutor will not necessarily lead to a significant investigation and appointing one may not interfere with such an investigation. Appointing a special prosecutor, however, has the advantage of having someone investigate the scandal who does not have a serious conflict of interest.

The best argument on the other side is that, even though the House can grant immunity, it is less likely to do so if there is a special prosecutor. (This nuanced argument is not really made by McCarthy.) I think this is a serious concern, but in my judgment it is does not outweigh the advantages of a special prosecutor.