As It Happens

What Robert Mueller can and can't do as special counsel in the Trump-Russia probe

Peter Zeidenberg, part of the special counsel that led to the prosecution of Scooter Libby in 2007, says Robert Mueller has limits to what he can do in his new role.
Robert Mueller will head up the special counsel investigation into the Trump-Russia affair, but there are limits on what he can do. (Saul Loeb/AFP/Getty Images)

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Democrats got their wish this week when the the U.S. Justice Department appointed a special counsel to investigate alleged ties between Russia and the Trump campaign.

Deputy Attorney General Rod Rosenstein tasked former FBI Director Robert Mueller with heading up the probe — a move lauded by lawmakers on both sides of the aisle, but dismissed by the president as "a witch hunt."

But what exactly is a special counsel, and what can it do? To answer that question, As It Happens guest host Helen Mann spoke with Peter Zeidenberg, a member of the special counsel investigation that led to the prosecution of former vice-presidential chief of staff Scooter Libby for perjury and obstruction of justice in 2007.

Here is a part of their conversation.

Helen Mann: What is the role of a special counsel? What do they actually do?

Peter Zeidenberg: They investigate and prosecute. It's the same as any other prosecutor. The difference is they're insulated somewhat from the day-to-day runnings of the Department of Justice.

It's necessary, but not sufficient.- Peter Zeidenberg on special counsel probe

HM: Are they fully independent from the department and the White House?

PZ: Legally, Rod Rosenstein has the power to fire director Mueller. But from a practical standpoint, that's not a concern of mine.

I'm not laying awake worrying about that. There's a lot of other problems before that will come to pass, I'm sure.

Deputy Attorney General Rod Rosenstein, right, can fire Robert Mueller if he sees fit. President Donald Trump, left, says the whole investigation is a 'witch hunt.' (Reuters, Associated Press)

HM: What kind of problems are you foreseeing?

PZ: People just need to understand that the role of the special counsel is not to inform the public as to what's going on, what's happened, what they found, what they didn't find, what their beliefs of what happened are. He is not going to do a press conference at the end of this case, or do a written or oral report about the case. 

He's going to either find a prosecutable case and bring that case and that's it, or he'll find no prosecutable case and just go away and he will not make a public statement or public findings. And that's just not satisfactory. So this is not a cure-all for this. It's necessary, but not sufficient.

There has to be congressional oversight and either a select committee or a 9/11-style commission, in my view. 

HM: Could you do those things simultaneously?

PZ: They have to take care that they don't overstep and interfere with the criminal case, but that's a problem that's navigable.

HM: And you think this is important because the public needs to know what's going on?

PZ: It's absolutely critically important. You can't have a more serious charge [than] that a foreign government may have interfered with a national election to elect a president, and people need to know if this election was on the up-and-up or if there were people who were involved in assisting the Russians.

But it's not gonna be discovered or reported by Bob Mueller. That's just not his charge. His charge is to see if there are violations of U.S. criminal law that he can prove in a courtroom beyond a reasonable doubt. 

This artist rendering shows former White House Press Secretary Ari Fleischer, left, questioned by prosecutor Peter Zeidenberg, standing, during Scooter Libby's perjury trial Jan. 29, 2007. (Dana Verkouteren)

HM: Are you suggesting he might find wrongdoing, but not figure he can get any kind of conviction, so it goes away?

PZ: Yes, or you could have a prosecutable case about someone not reporting on their taxes. You know, you could have a tax case, you could have a false statements case, you could have other cases of peripheral players in this that don't answer the questions that we all, as a public, want to know.

What happened? Who knew what when? He might know the answers to those questions, but it wouldn't be appropriate for him to divulge those.

This interview has been edited for length and clarity. For more, listen to our full conversation with Peter Zeidenberg.


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