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.” They will cease cooperating with congressional investigators. The prosecutor will claim that grand-jury secrecy rules bar comment about the expansive investigation (a claim the government routinely makes, even though the rules actually bar comment only by the prosecutor, investigative agents, and grand jurors — not the witnesses).Read More