GOP demand for IRS special counsel faces long odds
House Republicans have made it abundantly clear that they don't trust the Obama administration to investigate the way the IRS from 2010 to 2012 unfairly targeted some political groups.
In May, the House went so far as to pass a resolution calling for Attorney General Eric Holder to appoint special counsel to investigate the misconduct. On Wednesday, the House Judiciary Committee will press the matter further, hearing from legal experts about the case for a special prosecutor.
"Over a year has passed since we first learned that the IRS had been targeting conservative groups for additional scrutiny as they applied for tax exempt status and today, no one has yet been held accountable," committee chairman Rep. Bob Goodlatte, R-Va., said in a statement.
Charging that President Obama and administration officials have "repeatedly and publicly undermined" investigations into the matter, Goodlatte said, "The American people have lost confidence in the Justice Department's ability to get to the bottom of this scandal without spinning or covering up the facts."
What Goodlatte and others seeking a special prosecutor will hear Wednesday won't be entirely encouraging: even some legal experts who agree that a special prosecutor would be appropriate for the case say that Holder has complete discretion over the matter. Since the rules regarding the appointment of independent special prosecutors were changed in 1999, only one special prosecutor has been appointed: in 2003, the Justice Department appointed U.S. Attorney Patrick Fitzgerald to investigate the leak of a CIA agent's identity.
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Meanwhile, the White House said bluntly last month that they're not considering the appointment of a special prosecutor, dismissing the interest in one as politically motivated.
"There have been a large number of claims and conspiracy theories that have been floated about this process by Republicans that just have not panned out, frankly," White House spokesman Josh Earnest said. "And we've demonstrated our willingness to collaborate with them with legitimate oversight."
Earnest pointed to the extensive work Congress has done investigating the misconduct, without finding any solid evidence of White House connections. He also noted that an independent inspector general concluded that no one outside of the IRS was involved. That lack of evidence of White House interference suggests there's no conflict of interest corrupting the Justice Department's own investigation.
Still, some see plenty of evidence of a conflict of interest. They're holding out hope that the Justice Department may change course as Republicans in Congress keep up the pressure.
"If you look at the facts of the case, this is unique in our history not simply because it's an agency that's confessed to wrongdoing -- that's happened before," Jay Sekulow of the American Center for Law and Justice told CBS News.
"You've also got here the Justice Department's engagement in this -- the DOJ's investigating itself, in a sense," he added, pointing to evidence such as an email from Lois Lerner -- the former IRS official at the heart of the scandal -- suggesting the Justice Department wanted to "piece together" a case against the political groups the IRS was targeting.
Sekulow represents several of the conservative groups that were subject to undue scrutiny by the IRS, and he plans to tell Congress Wednesday that the Justice Department has "reached a point where there's a complete lack of credibility."
At the same time, Sekulow acknowledges in his prepared testimony that under current federal regulations, "the appointment of a Special Counsel is completely discretionary with the Attorney General."
He told CBS News, "My hope is the cumulative efforts, through hearings like this one and the daily disclosures of what really went on here, would lead Eric Holder to make the right call, and that would be to appoint general counsel."
Charles Tiefer, a law professor at the University of Baltimore, told CBS News that the Justice Department's involvement in this scandal is scant compared to past instances when the White House similarly refused to appoint a special prosecutor.
For instance, Senate Democrats in 2007 formally asked for a special prosecutor to investigate the claims Attorney General Alberto Gonzales made to Congress about the NSA wiretapping program.
"Unlike today's Justice Department conspiracy, this was a potential very specific perjury charge against the attorney general personally, making the conflict of interest patent and strong," Tiefer says in his prepared testimony for Wednesday's hearing.
Additionally, in 2006, dozens of House members asked Attorney General Michael Mukasey to appoint a special prosecutor to investigate whether the enhanced interrogation of detainees -- justified by a memo written by a Justice Department official -- was illegal.
Prior to 1999, the rules governing the appointment of special counsel were not simply federal regulations but codified law.
In the wake of the Watergate scandal, Congress passed a law in 1978 requiring the attorney general to appoint a special prosecutor -- one named by a court panel -- if there were credible criminal allegations against certain executive branch officials.
"When it was a statute... it took away a lot of the [attorney general's] discretion and made it more obligatory for the Justice Department to appoint special counsel," Tiefer said. That's why in the 1990s, he said, "Ken Starr was made the Whitewater independent counsel and got piece after piece of prosecutorial jurisdiction -- Janet Reno was hemmed in by the statute." Both Tiefer and Sekulow said that no one is calling for a return to this kind of legal requirement.
"Anyone who lived through the Clinton administration, the never-ending Kenneth Starr role -- nobody can want that back," Tiefer said.
The 1998 elections, he argued, proved that point. That year marked the only midterm election in modern history during an administration's second term in which the president's party actually gained seats.
