For all my friends who continue to call for a “special counsel” — meaning an independent prosecutor — for the IRS scandal, I have one simple question:
If you believe, as I do, that President Barack Obama and Attorney General Eric Holder are corruptly covering up the conspiracy by the executive branch and congressional Democrats to violate the constitutional rights of conservative groups, what makes you think they would appoint a scrupulous lawyer to investigate and expose the conspiracy?
The question answers itself, so much so that some members of Congress, in their understandable outrage and frustration, are proposing unconstitutional solutions to the Obama administration’s unconstitutional lawlessness. Exhibit A: Senator Pat Roberts (R., Okla.), a member of the Finance Committee investigating the IRS scandal — a metastasizing exhibition of high crimes and misdemeanors that now piles destruction of evidence, misleading testimony, and obstruction of justice atop abuse of the revenue agency’s awesome powers to intimidate conservative groups.
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.
The italics are mine, in order to highlight the problem. Yes, Congress has investigative authority in connection with its important oversight function — i.e., overseeing the activities of executive-branch agencies such as the IRS that Congress establishes and underwrites with taxpayer funds. What Congress does not have, however, is prosecutorial authority.
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.
Nor do we want lawmakers to have such powers. As I recount in my new book on presidential lawlessness, Faithless Execution, “The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty.” That is a quote from Judge Brett M. Kavanaugh of the federal appeals court for the D.C. Circuit, who last year authored a trenchant opinion condemning the Obama administration’s lawless disregard for congressional statutes.
Judge Kavanaugh stressed James Madison’s admonition, during the debates over the Constitution, that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny.” It is as true today as it was in 1787. It is no more appropriate for the Congress, on the pretext of a crisis brought on by gross abuses of presidential power, to usurp the executive’s unilateral prosecutorial power than it is for the president, with disingenuous invocations of “prosecutorial discretion,” to violate his solemn oath to faithfully execute the laws as Congress has written them.
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.
Senator Roberts’s frustration is understandable, but not as much as the public’s. To hear him grouse, one would think the Constitution’s denial of prosecutorial power to the legislature is a straitjacket that enables the administration to abuse its power with impunity. This, however, is far from the case. As Faithless Execution explains, 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.
In fact, since it often takes a long time to develop a criminal case against public officials, especially public officials who destroy evidence, it is irresponsible of Congress to allow the criminal process to trump the impeachment process. The officials who carried out the IRS abuse of American citizens — and those who have protected those officials — need to be removed from office now, not two or three years from now when we may finally have a scrupulous attorney general. This is why the Constitution’s impeachment clause makes clear that the political process of removing malfeasant officials from power provides no double-jeopardy protection against a later criminal prosecution for the same misconduct.
The IRS is deeply unpopular with the public and many Americans are offended by the Democrats’ use of an intimidating bureaucracy to harass their fellow citizens — they may not be conservatives, but they know it could happen to them, too. Republicans, and any Democrats who still put their duty to the Constitution above their party loyalty, should be taking meaningful action. Let congressional Democrats defend the IRS and any other corrupt officials in the run-up to the midterm elections if that’s what they want to do.
So, Republicans: Impeach them now, worry about prosecuting them later . . . and please stop whining as if you are powerless to do anything.