Appointments, Confirmations & Budgets

What Bill Keller Misses in Urging President Obama to Appoint a Special Counsel in the IRS Matter

By Jack Goldsmith
Wednesday, May 22, 2013, 7:05 AM

Bill Keller of the NYT urges President Obama to order the Justice Department “to appoint an independent investigator with bulldog instincts and bipartisan credibility” to fully examine the IRS imbroglio and determine “whether the treatment of conservative groups seeking special tax status was (a) a ham-handed shortcut by overworked and badly guided bureaucrats, (b) a systematic persecution of political opponents, or (c) some combination of the two.”  Keller gives three reasons why Obama should do this:

First, it would demonstrate that the president understands that, in the cascade of controversies that have knocked his second term off course, the I.R.S. case is the one that matters most.  . . . The second reason to bring in a special prosecutor is that it’s the surest way to get answers the public might trust.  . . . The third reason for a special counsel is that the government has serious business to conduct, and the scandal circus on Capitol Hill is a terrible distraction.

These are sounds reasons.  And even in the absence of a DOJ conflict of interest, the relevant regulations (28 CFR 600.1) permit appointment of a Special Counsel in "extraordinary circumstances" or when "it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."  But in urging a Special Counsel on Obama, Keller neglects a major potential downside for the President: a Special Counsel is a more powerful and competent investigator than Congress that is more likely to find any wrongdoing (if it exists), and that in any event would almost certainly prove more disruptive and distracting to the White House and Executive branch generally than Congress.

A Special Counsel can strengthen the White House’s hand in resisting partisan congressional inquiries on the ground of not wanting to jeopardize the Special Counsel investigation.   However, the President has fewer political arguments and weaker legal tools (such as executive and related privileges) to resist Special Counsel requests for information, interviews, and testimony.  A Special Counsel would also be a more competent and thorough investigator than Congress, and would possess the power to prosecute.  Depending on the scope of his or her mandate (Keller urges a broad one), a Special Counsel, can dig deeper and can do a better job of finding the truth – which is why Keller recommends one.  But (and this is what Keller overlooks) these very same qualities of independence, power, and competence would almost certainly mean that even if there is no White House or Executive branch wrongdoing to be discovered, the Special Counsel would impose more (and perhaps many more) costs on the White House and involved Executive agencies – in terms of time not spent on normal presidential business, the expense of lawyering up, the possibility of legal jeopardy for false statements, and the psychological distractions inherent in all of these things – than would Congress.

I don’t know whether those costs to the President and White House are worth the benefits Keller describes – we will see.  My only point is that the choice of Special Counsel is not all upside for the White House, and portends some of the very downsides (distraction from governance) Keller wants to avoid.  Keller says we should appoint a Special Counsel because “we have some governing to do,” implying that the appointment would free up Congress to govern.  Maybe so, but the appointment might make it harder for the White House to focus on governance, and might be a more dangerous route for it on the whole.

PS: Eric Posner and Adrian Vermeule wrote a terrific paper, The Credible Executive, that (simplifying a great deal) explores the tradeoffs between the  benefits of credibility and the costs of independent scrutiny that the Executive faces in deciding whether to go the Special Counsel route.