U.S. Attorney Weiss was obviously the wrong choice for special counsel because IRS whistleblowers had already credibly alleged that his own office and he himself had given Biden preferential treatment and provided misleading information to Congress. With his appointment as special counsel, many across the political spectrum (including perhaps Garland) seemed to think that move somehow insulated the Justice Department from congressional questioning about the growing controversy. But it shouldn’t.

Nothing in the Constitution grants prosecutors or “special” or “independent” counsels immunity from congressional oversight — especially in this unprecedented situation where the special counsel himself is alleged to have committed wrongdoing. No matter how many insiders in the modern D.C. establishment assume otherwise, that does not make it true. Prosecutors wield immense power, and there must be a check against the abuse and selective use of that power.

Just because Congress chooses to defer to the Justice Department’s “ongoing criminal inquiry” excuse on some oversight inquiries does not mean it always must, or that the objection is based on any constitutional limit to the congressional power to investigate. Congress has frequently made the opposite judgment and successfully obtained information about ongoing criminal cases when needed for its oversight function.

[And in this case, even more so, since Congress wants to investigate the conduct of the investigation. As US Attorney, Weiss still has to answer to Congress and its oversight functions on those questions, as does Merrick Garland. — Ed]