**Posted by Phineas
The growing frustration with the various scandals of the Obama administration have lead to repeated calls from the Opposition for special prosecutors to investigate and, if warranted, to criminally prosecute violators, most recently in the IRS scandal. For example, there’s Bryan Preston of PJ Media:
Congressional hearings make for mediocre TV and a poor vehicle for investigating the targeting of conservatives by our own government. It will take a special prosecutor who will go below the level of IRS chief and get to the people who were around when Lerner’s emails were supposedly lost, and who will depose them, look through contracts, find the inconsistencies and build a case. All the rest is show.
I sympathize, but, as I replied to Preston, just how does one get Holder and Obama to appoint one? And, furthermore, what guarantees do we have that the appointee will be truly independent? I don’t think it’s likely that the Attorney General will appoint a modern-day Archibald Cox, who’d rather be fired than compromise his investigation, do you?
Senator Roberts of Kansas was also among those calling for an independent prosecutor appointed by Congress:
“The Obama Administration’s Department of Justice won’t meaningfully pursue the IRS, but Kansans are demanding a full investigation, where ever it may lead, into how and why the IRS shut down the activities of the Administration’s opponents. At this point, only a Congressionally appointed and separately funded special counsel, with full subpoena power, can get to the bottom of this matter. Congress has longstanding and broad authority to both investigate allegations of wrongdoing within the federal government and to delegate its investigatory powers to other entities. It’s time to put this authority into action.
Roberts wants the arrest and prosecution of those responsible for “suppressing the First Amendment” rights of those targeted by the IRS, but, as former federal prosecutor Andrew McCarthy points out, there is a serious flaw in Roberts’ argument: Congress has all the authority to appoint an investigator and investigate all they want, but they have no constitutional authority to prosecute:
Congress can issue subpoenas for information in connection with its oversight function; it lacks any power to issue subpoenas in connection with what Senator Roberts says he is calling for: “the arrest and prosecution of those responsible for suppressing the First Amendment.” Congress is bereft of authority to enforce the penal laws, to conduct grand-jury proceedings, to issue indictments, to make arrests, and to subject offenders to criminal trials.
Senator Roberts is surely correct that Congress may appoint and fund its own special counsel. Indeed, it has done so many times: Committees conducting significant congressional investigations have frequently retained experienced former prosecutors to lead the hunt for evidence and the examination of witnesses. But a congressional special counsel is not, and may not be, an independent prosecutor. A congressional “special counsel” may only exercise Congress’s powers, not the president’s. The special counsel may conduct oversight; he or she may not prosecute.
Citing arguments ranging from recent Appeals Court rulings back to James Madison in Federalist 10, McCarthy reminds us that the Founders considered this separation of power, a division between the power to legislate and the power to prosecute, as essential to our liberty. Indeed, Madison saw their combination in one branch of government’s hands to be the very definition of tyranny (1).
But, if Congress can only investigate and shed light, but not prosecute, what then is to be done? What remedy is there when the Executive won’t fulfill its duties to enforce the laws and, if need be, prosecute?
McCarthy answers that the solution to this political problem is the political “weapon” the Constitution allows Congress — impeachment:
Congress has the power to impeach and remove from power high executive officials who have abused their powers. And while it appears that conventional felonies may have been committed in the IRS scandal, that is nearly beside the point, for two reasons.
First, “high crimes and misdemeanors” need not be indictable offenses. The term, borrowed from English law, refers instead to betrayals of the profound trust reposed in high government officials. Undermining the constitutional rights of the people and misleading Congress are among the most egregious betrayals executive-branch officials can commit. They clearly warrant impeachment and removal.
Second, with due respect to Senator Roberts and other Republicans who have emphasized the potential criminal liability of IRS and other executive-branch officials, they are barking up the wrong tree. When executive power is being abused, the public-interest imperative is to remove the power from the malevolent or incompetent officials. Whether they are also, at some point, privately prosecuted for their wrongdoing is of far less moment.
And I agree. Realistically, we will have to wait for a Republican White House in order to criminally prosecute law breakers in the IRS and other scandals. But the health of our political system and the Rule of Law requires the removal of corrupt, faithless, and incompetent political appointees now. Forget that the Senate has a Democratic majority lead by a petty tyrant: bring the first impeachment against Commissioner Koskinen and make the Democrats defend the IRS before the public.
We already have a House select committee investigating the Benghazi massacre. If John Boehner doesn’t mind a bit of advice, I’d suggest forming another for the IRS scandal and one for Fast and Furious, both with full subpoena powers and special counsel hired to lead the inquiries. They all should work through the summer and, when done, present their findings to the full House. Forget the Department of Justice; it can’t be trusted with Eric Holder in charge. Instead, the House should impeach whomever is found culpable by the investigations.
Short of removing the President, himself (2), it’s the only way (3) to rein in an imperial Executive Branch.
(1) And if you look at the Chief Executive’s usurpations of Congress legislative power to rewrite the laws at whim, you can see what Mr. Madison meant. Also, this is one reason we prohibit Bills of Attainder.
(2) McCarthy has written an excellent book, Faithless Execution, making the legal case for Barack Obama’s impeachment and removal from office. However, he also makes a strong argument that this simply will not be possible without a public political consensus for Obama’s removal existing, first. I agree with him and think that going after lower officials, instead, will be more fruitful.
(3) There is the “power of the purse,” but for various reasons that hasn’t worked in recent years.
(Crossposted at Public Secrets)