RUTHFULLY YOURS

Senator Ted Cruz has written a letter to Attorney General Eric Holder calling for the Obama administration to stop stonewalling and for the attorney general to appoint an independent prosecutor to probe the IRS scandal. The letter can be found and shared at the senator’s site here.

The IRS harassment of the president’s political adversaries and the agency’s role in obstructing the participation of tea-party groups in the 2012 campaign are among the most egregious episodes of Obama administration malfeasance – and that’s saying something with this crowd.

For public consumption, as Cruz observes, both the president and the attorney general spouted indignantly about how “intolerable and inexcusable” and “outrageous and unacceptable” the IRS’s undeniable targeting of conservative groups was. But then they conducted an “investigation” under the direction of an Obama campaign donor in which law enforcement did not bother to interview the harassment victims. Meanwhile, the administration has not only stonewalled Congress (the familiar Obama M.O.) but, Cruz notes, is actively seeking new IRS rules that would validate and provide for systematic use of these “intolerable, inexcusable, outrageous and unacceptable” tactics.

Before the Justice Department’s attempted whitewash, I argued against an independent prosecutor – both because a completely independent prosecutor would be unconstitutional and because the congressional investigation stood the best chance of advancing the search for truth (a criminal DOJ investigation would just give suspected government officials a rationale for ignoring Congress’s inquiries). In the ensuing seven months, however, the Obama administration has not only obstructed the congressional investigation; it has commissioned an embarrassingly conflicted investigation in a blatant effort to tuck the scandal under the rug. If Justice is going to do an investigation, we must demand that it be sufficiently independent to have integrity.

Senator Cruz, a constitutional scholar and highly competent lawyer, is obviously sensitive to the problems posed by independent prosecutors. Prosecution is an executive power and, under the Constitution, may not properly be exercised wholly independent of the executive branch. Thus the senator takes pains to ask Holder to appoint a prosecutor “with meaningful independence” from Main Justice (emphasis added), not complete independence.

A Justice Department with integrity would not need to be told that. But a Justice Department with integrity would not have assigned Barbara Bosserman to run the investigation. Ms. Bosserman is a partisan Democrat who is a heavy Obama donor – reportedly $6,100 from 2008 through 2012, which is a considerable amount of money for a lawyer on a government salary (as opposed to a lawyer in a successful private practice).

In response to the entirely predictable and fully justified complaints about Ms. Bosserman’s appointment, the Justice Department contends that it is impermissible to take a person’s political leanings into account in doling out assignments. That is not just a specious claim; coming from this Justice Department, it is a claim that insults the intelligence.

First, as a matter of principle, ethical lawyers and ethical Justice Departments operate on the “appearance of impropriety” standard: A lawyer should not be assigned to, or accept, a case in which his or her participation creates the mere appearance of conflicted loyalties. The idea is we should never have to wonder if there is bias at work – upholding the integrity of the system is about assuring the perception of justice, not merely the concrete application of justice.

Thus it makes no difference whether Ms. Bosserman (whom I do not know and had never heard of before publicity about her assignment to the IRS case) is the most honest prosecutor in the history of prosecutors. She is, objectively speaking, an Obama partisan. This is a case with big-time political ramifications. Her political leanings thus create the appearance of impropriety.

Moreover, in my decades of experience in the Justice Department, the appearance-of-impropriety standard was broadly construed because it is not something any U.S. attorney’s office wants hanging over a case. For the sake of the subjects of the investigation (here, the Obama administration and other government officials), if they are truly innocent, they should want an investigation as to which no one could credibly suggest the fix is in. And for the sake of the lawyer, she should want no occasion for the raising of ethical questions. So even if recusal is not absolutely required (and I think the “appearance” standard requires it), the Justice Department usually recuses when it is prudent to do so. Here, it should have been a no-brainer.

As for insulting our intelligence, take a quick look at the series Hans von Spakovsky and Christian Adams did for PJ Media on the politicized hiring at Holder’s DOJ — it was aptly called “Every Single One.” They showed that, under Attorney General Holder, the Justice Department has systematically taken political leanings into account in its hiring decisions, as if “Radical Leftist” were part of the job description. This is the most politicized Justice Department in American history and the thought that Obama, Holder & Co. do not factor political considerations into virtually every significant decision is laughable. 

But that’s not the half of it. Quite apart from Ms. Bosserman’s Obama partisanship is the fact that she is assigned to Main Justice’s notoriously politicized Civil Rights Division. The IRS investigation is a corruption case, not a civil-rights case or a tax case. The Civil Rights Division – Ground Zero of the Obama administration’s racially discriminatory practices, its unfathomable dismissal of the New Black Panthers voter-intimidation case, and its highly politicized lawsuits against several states – is no place for conducting a criminal government-corruption investigation.

That aside, the investigation should not be run from Main Justice at all, not even from its public-integrity section, which handles some political corruption cases. Except as minimally required (more on that below), Main Justice should be out of the IRS investigation, period. With rare exceptions, investigations should be conducted by district U.S. attorney’s offices; Main Justice’s task is to maintain national enforcement standards, not to conduct investigations and prosecutions.

In particular, when an investigation implicates Washington-based agencies (and especially when it involves Washington-headquarters-based officials of those agencies), it should not be run from Main Justice in Washington. Main Justice has regular collaborative dealings with these agencies regarding cases and policy matters. There are thousands of federal prosecutors across the U.S., the vast majority of whom have no political or operational conflicts of interests. There is thus no reason for Main Justice, which must regularly, and at the highest level, cooperate with an agency like the IRS, to be made responsible for criminally investigating the same agency.

The right way to handle the IRS case would be the way Attorney General Michael Mukasey handled the CIA “torture” investigation: Bring in a respected, non-partisan, highly experienced U.S. attorney from outside D.C. and put him/her and his/her office in charge of the investigation . . . answering only to the attorney general and, perhaps, the deputy attorney general.

As noted above, it would offend the Constitution for a federal investigation to be conducted completely outside the executive branch. Prosecutorial power is executive in nature, and it is fully reposed in President Obama. Attorney General Holder is the president’s Senate-confirmed representative for the exercise of that power. No matter who the prosecutor is, he or she must answer to the president (who appoints all district U.S. attorneys, subject to Senate confirmation), and it is only right for the prosecutor to answer to the cabinet official the president has chosen to execute his prosecutorial powers.

Nevertheless, were Obama and Holder to appoint an experienced prosecutor whose integrity and reputation for non-partisan law enforcement were above reproach, there would be powerful political incentives neither to interfere with the investigation nor to remove the prosecutor to avoid the filing of charges. Senator Cruz’s demand for a meaningfully independent investigation wisely recognizes this reality. Americans who care about getting to the truth, and who are offended by the administration’s efforts obscure the truth, should get behind it.