Just a few days ago, the White House was dismissing the IRS scandal and the sudden disappearance of e-mails from seven key figures as “Republicans … floating a conspiracy theory.” That explanation didn’t fly with the Los Angeles Times, not exactly a bastion of conservative thought in liberal Southern California. The editorial board takes a “pox upon both houses” approach to the “partisan sniping” over the scandal, but also says that an independent investigation is the only way to deal with it:
After more than a year of scrutiny, three congressional committees continue to flail away at the Internal Revenue Service’s alleged targeting of conservative nonprofit groups without producing any definitive answers to the questions they’ve raised. This page worried at the outset that the investigations would become too politicized to get to the bottom of the scandal. The result, however, has been even worse: Not only have two House probes disintegrated into partisan sniping, but the IRS further damaged its own credibility by belatedly disclosing the disappearance of two years’ worth of emails belonging to a key agency figure who has refused to talk to Congress. It’s past time to turn over the inquiry to an independent investigator who can dig up the truth and, if possible crimes are revealed, refer matters to federal prosecutors.
Note, though, that this is not a call for an independent prosecutor, despite the clear indication of a cover-up:
[I]t’s impossible to feel any sympathy for the agency when it waited four months before telling Congress that several computer hard drives had crashed in mid-2011, wiping out emails stored by Lois Lerner and six other key employees.
Why an agency that relies on record-keeping would keep such limited records is a mystery, as is how such an important trail of evidence disappeared before the scandal hit. But neither Congress nor the administration has given much reason to be trusted to unravel them. Instead, the situation cries out for the appointment of someone with a track record of sorting through complex problems to figure out what happened and who’s responsible. Although it’s tempting to demand a special prosecutor, as some Republicans have done, such efforts in the past have come at great expense and with wildly mixed results. A prosecutor also may be required by ethics rules to keep some findings secret, which is the opposite of the transparency needed here. Better to call on a trusted and energetic figure who can conduct a vigorous inquiry, with no questions about his or her motives.
There are a couple of problems with this approach. First, under existing law and the Constitution, the authority to conduct an investigation into the executive branch lies with Congress. The Department of Justice certainly also has the authority to probe criminal behavior at the IRS, Treasury, and even the White House, but this Department of Justice has made it clear that it has no intention of doing so. Unfortunately, that’s the same DoJ that would have to sign off on an independent investigator, and then prosecute based on his/her findings.
Second, even if the Obama administration buckled under the growing pressure caused by the arrogance and hypocrisy coming from the IRS — pressure that produced this editorial, certainly — to appoint an independent investigator, what kind of a “trusted and energetic figure” would get selected? And if that figure began energetically digging up actual criminal conduct and political manipulation of the IRS, how long would he or she remain a “trusted” figure? At what point would media outlets begin wringing their hands about “overreach” and “partisan sniping,” rather than focus on the fact that the IRS targeted political opponents of the administration and then had the records of that effort conveniently and oh-so-coincidentally disappear? The LA Times editorial board couldn’t even concentrate on the real story for an entire four-paragraph editorial calling for outside investigators.
Without the power to prosecute independent of the DoJ, an outside investigator would only be useful to derail the House probes into the IRS scandal. As much partisan sniping that has produced, it has also exposed IRS stonewalling and White House demagoguery that is obstructing the legitimate oversight functions of Congress against abuses of power by agencies that share in legislative and executive authority. Better to keep it there than to have it die a slow death in the dark with an outside effort that has no authority to deal with its findings.