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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.

Reader Discussion

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on June 03, 2013 at 12:04:40 pm

[...] IRS Special Prosecutor? – Mike Rappaport, L.L.B. [...]

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MONDAY AFTERNOON EDITION | God & Caesar
on June 03, 2013 at 13:59:27 pm

With deep appreciation of Prof. Rappaport's usual close attention to the underlying law (or constitutional conditions) for any legislative or executive actions, it is surprising that no mention is made of the limits which the loose, lousy, legislative language imposes on these considerations.

And the usual magical intonements:

"The Secretary shall issue such regulations and guidance as may be necessary to carry out the provisions of this subsection, including guidance relating to what constitutes reasonable efforts to determine the eligibility of a patient under a financial assistance policy for purposes of paragraph (6). "

So, the question becomes, what is the **specific crime**?

It is probably agreed that specific crime should always be stated before any form of prosecution (not investigation) is considered. How would a "Special Prosecutor" make determinations of facts that might differ from the facts determined legislative process?

So, what statute has been violated? Is abuse of legislatively granted discretion a crime; or a subject for legislative or executive correction? Do those questions require a "Special Prosecutor?"

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R Richard Schweitzer
on June 07, 2013 at 07:40:05 am

From my experience defending clients in "white collar" criminal investigations under the "Justice" regimes of both parties, looking for proof of a "specific crime" seldom restricts the activities of the Justice Department in conducting grand jury investigations. With the powers to brow beat unprotected witnesses in the grand jury room, grant immunity to "subjects," and reward helpful testimony with motions for downward departure under the federal sentencing guidelines, prosecutors and investigators can almost always suggest and get support from witnesses for proof of some "crime." Federal criminal statutes are plenty loosey goosey and proof of specific intent is not always necessary. Finding a crime is not a limitation.

Turning loose an agressive special prosecutor on the IRS might be just the medicine the system needs. Justice in America could be served for the hunters to become the hunted and see how it works from the other side.

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Edward Hinson

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.