My friend Kimberly Brown used to invite me once a year to address her Administrative Law class at University of Baltimore Law School. The topic was always the pros and cons of an Independent Counsel, operating under the auspices of the Independent Counsel Act, and a Special Counsel, appointed by the Attorney General. This was in the early years of the Obama Administration when Independent Counsel Ken Starr's Whitewater/Madison Guaranty/Lewinsky Investigation, Special Counsel Jack Danforth's Waco Obstruction Investigation, and Special Counsel Patrick Fitzgerald's Plame Leak Investigation were matters of recent history.  

I knew something about each of these investigations, having worked for Starr, served as an AUSA in the Western District of Texas during the Branch Davidian siege and prosecution, and closely followed the Plame story. At the close of class I wound up comparing the Independent Counsel and Special Counsel regimes and concluding that a Special Counsel was better suited to lead a thorough investigation of what are inevitably highly charged, politicaly tinged allegations. Why?

A Special Counsel, appointed by the party running the Executive Branch, is far less subject to political attack by the ruling government's fellow travelers in the media and Congress. They look foolish attacking a person put in place by the very government being investigated. This is especially true if the Special Counsel is a person of acknowledged prestige, such as Danforth, a retired Senator, and Fitzgerald, a sitting U.S. Attorney with an impeccable reputation at the time.

And for the same reason, firing such a person is likely to bring down scorn on the Attorney General and President. Can you imagine the firestorm that would have ensued had President Bush fired Patrick Fitzgerald? Witnesses and lawyers who interacted with Danforth's Waco Investigation considered his staff to be over-the-top aggressive. But they had nobody to complain to, and Danforth and his people were insulated and protected from effective criticism.

So, the Special Counsel enjoys far less theoretical and statutory independence than did the Independent Counsel under both prior statutes, but in practice can be quite independent. 

But if what if a President and Attorney General come along who never appoint a Special Counsel, even when one is called for, and what if the mainstream media outlets give them a free pass? That is essentially what happened in the first six years of President Obama's reign, with Eric Holder as Attorney General.

To my knowledge not one DOJ Special Counsel has been appointed during President Obama's tenure. And yet there are/were at least three scandals justifying an independent, professional Executive Branch criminal investigation, free from political interference. These three are: Fast and Furious and alleged cover-up; Benghazi and alleged cover-up; and alleged IRS political targeting and cover-up.

It is hard to believe that a Republican President and Attorney General would be able to get away with such inaction, without an incessant drumbeat of opposition and media invective. The failure to appoint a Special Counsel to probe IRS' alleged targeting of conservative groups is particularly troubling, given the confirmed interaction between IRS officials such as Lois Lerner and DOJ Public Integrity attorneys regarding potential prosecution of targeted groups. I cannot imagine a more glaring conflict of interest on DOJ's part.

This is a lesson not likely to be lost on future Republican Administrations.

(wisenberg)