Talk about the lesser of two evils. With the Obama administration stonewalling Congress on the IRS scandal (and Fast and Furious, and Benghazi, and …), House hearings have produced a continuous stream of outrages, including yesterday’s jaw-dropping display of arrogance from IRS Commissioner John Koskinen, who smirked as he declared that the IRS didn’t owe an apology to anyone for its targeting of conservatives. Clearly, the Department of Justice under Eric Holder has no interest in investigating abuses of power that target Barack Obama’s opponents, or investigating much of anything except how to move Gitmo detainees into federal courts for civil trials. And the House on its own hasn’t much power to do anything except expose the abuses and the arrogance.

Ron Fournier wrote a week ago that it’s time for a special prosecutor, and has been banging the drum on Twitter ever since. He offered this advice to endangered Senate Democrat Mark Pryor today:

If @SenMarkPryor wants to distance himself from #Obama, DC & bad Gov't, he could demand an independent #IRS probe https://t.co/u7SaiD2L8A

— Ron Fournier (@ron_fournier) June 21, 2014

Carl Cannon wrote last night that he’s become convinced of the necessity, but only because it has become the least bad option. He gives a lengthy read on the reasons why both parties allowed the special-prosecutor law to lapse after a series of politically abusive, ridiculously lengthy, and almost completely futile investigations discredited the position:

Watergate begat the independent counsel system, enacted by law as a post-Watergate reform by a Congress burned by the memory of the “Saturday Night Massacre” — Nixon’s firing of one attorney general after another until he found someone willing to sack special prosecutor Archibald Cox. It was only a temporary victory for the beleaguered president, but it convinced most Americans — and not just Democrats — that the Justice Department couldn’t be trusted to investigate executive branch wrongdoing.

Problems with the new reform arose from the start, however. Theoretically, special prosecutors were subject to judicial oversight, but in practice they were on their own. With no bosses, no time constraints, and no limitations on the scope of their probe, special prosecutors tended to turn into Inspector Javiers — if the villain of “Les Misérables” had had an unlimited budget and no superior.

As the abuse of executive power gave way to the abuse of prosecutors with more power than British kings wielded at the time of the American Revolution, it became clear that the reform-minded liberals swept into power in the post-Watergate Democratic landslide of 1974 didn’t actually know more than the Framers.

It took a while for Democrats to fathom the problem, which was that many of the independent counsels appointed in the 1980s lack the trait known as “prosecutorial discretion.” This was understandable: many of them had never been prosecutors. And as independent counsels they contended with none of the normal checks and balances in courthouse politics — because they never had to face the voters. Accountable to no one, they didn’t balance the alleged transgressions of their target with more serious cases — because they didn’t have other cases.

Still, Cannon wonders whether the time has arrived to relaunch the statute:

But the question is how the American people are supposed to discern the truth. One way to get those missing emails would be with a federal inspector general complete with subpoena powers. Another — and God help me for saying this — would be a special prosecutor.

I’ve raised the issue a few times too, in relation to this and other scandals. Cannon’s right about the abuse of power, and the history he presents is damning. The solution to this isn’t just to hold our noses and let loose another abuse of power, but to rewrite the independent prosecutor statutes so that its authority can be checked when abused.

How to do this? First, it’s important to understand that the authority to investigate the executive branch resides with the legislative branch, and not the judiciary or some outsider with plenary powers and no oversight. Independent counsels should be accountable to Congress and not just a judge, although the actions of the prosecutor/investigator should be monitored by the judiciary just as it would be in any other criminal investigation. A new special-prosecutor law should have as its oversight the combined House and Senate Judiciary Committees, or the joint committees for the relevant function in the executive branch (House Ways and Means and Senate Finance for the IRS, for example).

That way, the conduct of the special prosecutor will have more direct political consequences for Congress and the members of those panels, while Congress would retain its authority in an area in which it should have the full responsibility rather than pass the buck to an unaccountable prosecutor. It would be messy and political, but at least it would use legitimate authority in the legislative branch to own and constrain the use of a power that’s only legitimate to that branch.  Even more, it would allow public outrage over executive-branch conduct to pressure Congress to use an effective option to constrain the executive, making both branches more responsive to citizens.

I’d bet we’d see less smirking like this with a system like that at the ready:

What we have now is obviously not working any better than what we had in the post-Watergate special-prosecutor era. Just as in Watergate, the DoJ is a political arm of the administration and uninterested in doing its job independently to investigate and prosecute abuses of power. Congress has to find a way to effectively exercise its own checks and balances on executive power to prevent and punish those abuses. Hearings alone won’t do it, and it’s long past time for Congress to start thinking creatively about its other options.

Note: Yes, I made both of those JPGs with Memegenerator.