Congress, in 1999, took away DOJ’s power to demand the D.C. Circuit appoint an independent counsel with prosecutorial power equal to the attorney general when high-ranking officials in the federal government engaged in criminal wrongdoing. However, the attorney general (or acting attorney general, in cases in which the attorney general is recused) is still authorized to appoint a special counsel when a criminal investigation of a person or matter is warranted so long as two conditions are met: an investigation or prosecution by a U.S. Attorney’s Office or litigating division of the DOJ would present a conflict of interest, and the public interest requires appointment of counsel independent from the DOJ. We therefore can infer that Holder’s decision to not appoint a special counsel, and instead ask the FBI to investigate the IRS, suggests that Holder believes no “conflict of interest” exists and it’s not in “the public interest” to have any outside scrutiny of the IRS.
Having exhausted the legislative and executive branch options, only the courts are left. Rule 53 of the Federal Rules of Civil Procedure would allow the federal courts, especially those hearing any of the current challenges to the IRS by tea party groups, to appoint what is called a “special master” to perform investigative and enforcement duties consented to by the parties in the dispute. This also includes authority to conduct an evidentiary hearing and exercise the appointing court’s power to compel, take and record evidence. With a gridlocked Congress and a White House pleading ignorance, the judiciary may be the only government institution capable of providing the thorough and accurate government accountability the American people deserve.
Dan Epstein is the executive director for Cause of Action.