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Why special counsel is not enough in Trump Russia probe

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FBI Director Robert Mueller
Former FBI Director Robert Mueller testifying during a hearing before the House Judiciary Committee June 13, 2013, on Capitol Hill in Washington, D.C.
Alex Wong | Getty Images 2013

Former FBI director Robert Mueller will soon begin his new job as independent counsel in the Russian probe. 

He will investigate whether there was collusion between the Trump campaign and Russian officials.

"My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination," Deputy Attorney General Rosenstein said in a statement. "What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command." 

Mueller's appointment comes in the wake of a memo written by then-FBI Director James Comey that says President Trump asked him to drop an investigation into Michael Flynn's contact with Russian officials. 

President Trump disputes Comey's account.

This is the single greatest witch hunt of a politician in American history!

— Donald J. Trump (@realDonaldTrump) May 18, 2017

For Peter Zeidenberg, a special counsel isn't enough.   

Zeidenberg served as an assistant special counsel in the prosecution of Scooter Libby, spent 17 years in the Department of Justice and is currently a partner at Arent Fox LLC. 

"This isn't a criticism of Mueller," Zeidenberg told MPR News Host Kerri Miller. "In fact, it's just the opposite." 

Like many others in Washington, Democrats and Republicans alike, Zeidenberg respects the appointment of Mueller as special counsel. 

"Appointing a special counsel is not sufficient, Zeidenberg says. "It is necessary, but it's not sufficient."

By design, the special counsel will keep their investigation secret, and it could take years to determine if a prosecutable offense has occurred. 

It's possible that at the end of the investigation Mueller could determine that he can't prove beyond a reasonable doubt that a U.S. law was broken.

If that happens, "There will be no report," Zeidenberg said. "There will be no public accounting of what was done."

Additionally, the special counsel is not the same as an independent counsel

Special counsel is generally appointed by the Attorney General. Although, in this case Deputy Attorney General Rod Rosenstein made the appointment because Attorney General Sessions recused himself from the Russia investigation

This means, that, theoretically, Mueller could be fired by Deputy Attorney General Rosenstein, who is accountable to the president. 

"I don't think he's going to be shackled by him in any way," Zeidenberg said. "But special counsel is not as independent ... is not a complete free agent like the old independent prosecutors were."

Zeidenberg's suggestion is creating a bipartisan commission, like the 9/11 Commission, that will give a public accounting of what occurred.

"I have no doubt that Mueller is going to investigate vigorously and aggressively, but will we learn what he learned?" Zeidenberg continued. "Not necessarily."