We Need a Special Counsel to Investigate IRS Targeting of Conservatives

On May 7, 2014, a bipartisan House Resolution was passed, calling for Eric Holder to appoint a Special Counsel in the investigation of the IRS targeting of conservative groups.

On July 30, 2014, a hearing was held by the House Judiciary Committee entitled, “The IRS Targeting Scandal: the Need for a Special Counsel.” This hearing dealt with the question of whether United States Attorney General Eric Holder should appoint a Special Counsel to investigate the IRS targeting scandal, to discover how far it went, and to determine who exactly was involved in the cover-up of the scandal.


In August of 2014, Federal Judge Emmet Sullivan launched an independent inquiry into the recent issue of missing emails from Lois Lerner’s account.


As of today, we are still unsure of many things revolving around this disgusting abuse of power by Obama’s Administration. Even after the aforementioned resolution, hearing, and independent investigation launched by a federal judge, we still do not have an independent counsel investigating the IRS scandal and subsequent cover-up.


Chapman Law Professor Ronald D. Rotunda was a witness at the July 30 hearing, and wrote an article on this appointment of special counsel, stating:


There is no longer a special statute that provides for a Special Prosecutor or Independent Counsel. However, the Attorney General does not need a statute to appoint a Special Counsel. There was a Special Counsel in the Teapot Dome scandal despite a lack of statutory authorization. Similarly, there was no statutory authorization for the Special Counsel in the Watergate scandal.


What we have now, as in the case of Watergate, is a regulation. In Title 28 of Code of Federal Regulations, Section 600.1. It provides that the Attorney General “will appoint a Special Counsel” when he determines that “criminal investigation of a person or matter is warranted,” and the Department of Justice has a “conflict of interest” and “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”


Further substantiating the need for a special counsel to investigate this case is a letter signed by 47 out of 73 federal government Inspectors General (including many who were appointed by Obama!). This August 4, 2014 letter explains that the Obama administration is obstructing their investigations into government corruption and mismanagement.


Professor Rotunda offers further proof of the current extraordinary circumstances, stating


Emails disappear. IRS backup disks are destroyed, while the IRS is involved in litigation to turn over those backup disks. The IRS does not appear to keep the records that the law requires it to keep. The President assures us that there this is no hint, “not a smidgen of corruption,” before the DOJ completed its purported investigation. That prejudgment undermines the investigation. There is also the appearance of a conflict when Department of Justice lawyers who are political appointees of the President are in charge of the investigation that involves the national co-chair of President Obama’s Reelection Campaign. The Washington, D.C., Rules of Professional Conduct governing lawyers, Rule 1.7(b)(4), provides there is a conflict if a lawyer’s professional judgment “may be adversely affected” by his own “personal interests.”


Professor Rotunda ends his article by explaining that while the Special Counsel regulation is not a statute, it is still the law.


As the Supreme Court explained in United States v. Nixon, when referring to the regulations that governed the Attorney General’s appointment of a Special Counsel: “So long as this regulation is extant it has the force of law.” The Court went on to summarize the precedent as holding that “so long as the Attorney General’s regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations.”


This Administration should appoint a special counsel immediately so we can continue investigating in a non-partisan way.