Leftists are quick to brush the IRS scandal aside as "bad customer service" while conservatives call for a special prosecutor to indict the obvious criminals, but what if they're both wrong? The actions of the IRS may not have broken any laws, and perhaps no one in the White House knew anything about anything. If so, that's even worse, and it won't be solved by a special prosecutor.

This column is generally on Kudlow's side here, which is to say that we share his outrage about the IRS abuses. But we're uncomfortable with his framing. What if congressional investigators, or a hypothetical special prosecutor, fail to find evidence of crime, conspiracy or direct White House involvement? Then guys like Crook and Scheiber will crow that they were right all along.

But they aren't. This may turn out to be one of those cases in which the real scandal involves what is legal, not illegal. Obama's endless demonization of his political adversaries and lack of respect for the gravity of his own office certainly aren't illegal. The media smear campaign against the Tea Party was protected by the First Amendment. And the IRS could have violated the constitutional rights of countless Americans without running afoul of any criminal statutes in the process.

The scandal here is that an agency of the federal government used its fearsome authority to benefit the party in power. If it did so unthinkingly, that is even more disturbing than a criminal conspiracy.

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