Chairman Charles Grassley recently announced that he would invite Donald Trump, Jr. and Paul Manafort to testify before the Senate Judiciary Committee. As the evidence of collusion by the Trump campaign with Russia to swing the 2016 election mounts at a dizzying pace, the public appetite for testimony from the players has grown ravenous. That appetite was further whetted when Sen. Dianne Feinstein announced that Special Counsel Robert Mueller had told the Committee he would not object to testimony by Trump, Jr. and Manafort. But eager viewers should not start popping corn and settling into their easy chairs just yet. Despite considerable posturing by members of congress and potential witnesses, the summer and fall seasons are unlikely to feature high-profile public testimony by the likes of Trump, Jr. or Manafort, unless they appear for the limited purpose of announcing that they decline to answer questions.
Simultaneous Congressional and criminal investigations require sensitive coordination, a process sometimes labeled “deconfliction.” Both Congressional and criminal investigators play important roles in our constitutional system and must, at times, proceed simultaneously. Criminal investigators are assigned the task of holding government officials accountable when they cross the line into criminal conduct. Their work demands meticulous step-by-step construction of a case, which can be undermined by having another investigatory body conducting overlapping interviews of witnesses or collection of evidence. Confidentiality, whether through the secret process of a grand jury or routine communications in following leads, can be essential to success.
Public Congressional hearings inform the public about issues of public policy, the operations of government, and the course of investigations. They also assist Congress in its unique function of building a record for removal of public officials from office through impeachment. Additionally, they allow Congress to focus public pressure on government officials, provide ever-welcome exposure for ambitious politicians, and, collaterally, satisfy a public need for entertainment. The public’s education and entertainment, however, often must yield, at least temporarily, to the demands of justice when the same matter is subject both to Congressional inquiry and criminal investigation.
Now that their legal exposure is coming into sharper focus, the actors in the Russia drama will – if they listen to their lawyers –decline the invitation to testify voluntarily. They face two obvious dangers. There are no limits on the questions Committee members can ask, which may mean that honest answers could incriminate them. And, if they answer untruthfully, they can be prosecuted for lying to Congress. Given what we already know about Trump, Jr. and Manafort, it is impossible to imagine either one being able to answer Senators’ questions fully and honestly without further incriminating themselves.
If a witness declines to appear voluntarily, the Committee can issue a subpoena, which is a command backed by the force of law that requires the presence of the witness. Subpoenaed witnesses, however, retain basic constitutional protections, including the Fifth Amendment right to refuse to incriminate themselves by answering questions. This same protection, which allows witnesses to decline to testify before a grand jury or in court, allows a subpoenaed witness to remain silent before a Congressional committee. The Committee may contend that Trump, Jr. has waived his Fifth Amendment right by voluntarily tweeting and speaking about the meeting he, Manafort, and Kushner attended with a Russian lawyer and others to obtain damaging information on Hillary Clinton. In general terms, a witness may not speak openly about a topic and then invoke the Fifth Amendment to evade uncomfortable follow-up questioning. Trump, Jr., however, is likely to argue that he did not waive his privilege and that if he did, the waiver is limited to the narrow topic of the meeting.
If a witness asserts the right to remain silent, the Committee has three options: it can forego the testimony, hold the witness in contempt, or grant immunity to the witness. If the Committee held Trump, Jr. in contempt, the matter would go to court, either in a criminal prosecution by the United States Attorney for the District of Columbia or a civil enforcement action by the Senate Legal Counsel. Either approach would allow the witness to litigate the scope of his constitutional protection. The Senate also has inherent authority to try a contemptuous witness before the full Senate and lock him up for a fixed period or until he complies. The Senate has not invoked this procedure since 1934 and it is unlikely to revive it to put the president’s son or an associate behind bars.
Alternatively, the Senate Judiciary Committee has authority – by a vote of two-thirds of the Committee – to secure a grant of use immunity for the witness from a U.S. District Court. Use immunity prohibits the government from using Congressional testimony against the witness in a subsequent prosecution. That sounds like a deal worth considering except that use immunity also bars reliance on the testimony by prosecutors in pursuing leads or plotting strategy, or in offering testimony by witnesses who have been influenced by the immunized testimony.
The Supreme Court has said the burden rests with the government in any subsequent prosecution to prove that each piece of evidence that it uses against a defendant was derived from a source independent of the immunized testimony. In the context of highly visible, widely televised testimony before a Senate committee, it becomes extremely difficult, if not impossible, for prosecutors to prove that witnesses have not been tainted by exposure to immunized testimony.
The best known – and most disastrous – example of Congressionally immunized testimony undermining a subsequent criminal prosecution arose from the Iran/Contra scandal, in which members of the Reagan Administration engaged in a complex scheme to sell arms to Iran to obtain funds for the Contras in Nicaragua. Congress held public hearings despite strong concerns expressed by Independent Counsel, Lawrence Walsh. Oliver North, the Marine colonel central to the illegal scheme, gave days of televised testimony that captured the nation’s attention. The D.C. Circuit Court of Appeals subsequently threw out convictions of North and National Security Advisor John Poindexter, concluding that, despite heroic efforts to erect safeguards, prosecutors had been unable to prove that the televised testimony had not influenced the prosecution.
Ultimately, the decision by a Congressional committee to grant immunity comes down to a political calculation. Members generally recognize that the short-term political gain of a high-profile hearing is outweighed by the long-term political harm of undermining a criminal prosecution. Since the failure of the Iran/Contra prosecutions, Congressional committees have granted immunity sparingly when a simultaneous criminal investigation already exists. That has not stopped witnesses from asking.
Congress must continue its investigations, but it must also stay out of the way of Mueller’s criminal inquiry. Mueller’s willingness to allow the Senate Judiciary Committee to invite voluntary testimony from Trump, Jr. and Manafort is limited. He surely will not consent if the Committee starts down the road to granting immunity, which is the only way to secure substantial testimony.
The bottom line is that we are unlikely to see Trump, Jr. or Manafort in the witness chair any time soon, unless it is under Committee subpoena and they are forced to appear to assert in person their Fifth Amendment rights against self-incrimination.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.