We have had “special” counsels since that time, but no independent ones in the sense of formal autonomy from the Justice Department and the president. And the more independent the charters of special counsels have been, the more strident have been the complaints about their zeal. In the most recent example, Patrick Fitzgerald (full disclosure: a longtime friend of mine) was given an especially wide berth by the Bush Justice Department to investigate an allegedly felonious leak of classified information. As it turned out, the leak was not unlawful, yet Fitzgerald ended up first jailing journalist Judy Miller for contempt (Miller refused, for a time, to identify her sources to his grand jury), then prosecuting Scooter Libby not for the leak but for “process crimes” (i.e., offenses — perjury and lying to agents — alleged to have been committed during the investigative process). Those legitimately worried about leaks were left unsatisfied while Libby admirers remain convinced that he was railroaded.
Let’s put law and atmospherics aside and try to be completely practical. The imperative in the IRS scandal is not criminal prosecution. It is political accountability: to lay bare what corrupt officials have done, for the purpose of swiftly determining whether they are unfit to hold offices of public trust and whether the system in which they operate tends to corruption. The appointment of a special counsel would undermine that goal.
The moment a prosecutor — special or otherwise — takes over, the public flow of information stops. All witnesses will claim that the pendency of a criminal investigation means they cannot discuss the matter “on advice of counsel.”