WASHINGTON -- End the pain, many experts say. Iran-Contra prosecutor Lawrence Walsh's investigation lasted six years. Whitewater prosecutor Kenneth Starr's is at four years and counting.
Both were appointed under the independent counsel law due to expire next year unless reauthorized by Congress, and a bipartisan commission that studied the statute says the time has come to let it die."Reforms are wonderful things," except when they make matters worse, former Reagan administration chief of staff Howard Baker said Monday.
Baker and former Carter administration Attorney General Griffin Bell head the commission that concluded after a three-year study that the independent counsel statute "is seriously flawed" and a permanent expiration is in order.
The law did lapse briefly in the early 1990s, but was reauthorized in 1994, and Starr was the first independent counsel appointed under the new law.
The act isolates potential defendants "from the safeguards afforded to all other subjects of federal criminal investigations, said the panel that includes former federal appeals judge and ex-FBI Director William Webster, among others.
The law covers 49 federal officeholders and "in effect ... creates miniature departments of justice, independent of the attorney general, to prosecute particular persons," the panel said in a final report.
As an alternative, the commission suggested that when the president, vice president or attorney general is involved in a criminal investigation, the attorney general should be required to step aside. The attorney general could appoint an outside counsel or a Justice Department official to investigate, said the panel.
"The commission recognizes that the possibility of conflicts of interest in investigations of high officials is far from imaginary," said the panel established by the University of Virginia's Miller Center of Public Affairs. "The difficulty lies in striking a balance between holding such officials accountable and protecting their inherent right to fair treatment."
In a study of executive privilege, the panel also recommended that Congress reduce its demands on the presidency concerning internal deliberations, saying presidents should "invoke executive privilege to resist unreasonably invasive demands from Congress."
Panel member Lloyd N. Cutler, who served as White House counsel in the Clinton administration, was heavily involved in that recommendation. At a news conference, he drew a distinction between asserting executive privilege to congressional inquiries and doing so in the context of a grand jury investigation, saying a privilege claim in a criminal investigation is much more difficult to maintain.
Clinton has invoked executive privilege in Starr's investigation of Clinton's relationship with Monica Lewinsky.
But in congressional inquiries, he and other panel members concluded, "the waivers of executive privilege by modern presidents, including Bill Clinton, are doing serious long-term damage to the ability of presidents to perform their duties."