They're Doing *What*? On Testifying Before Congress During a Pending Criminal Investigation – Above the Law

Donald Trump Jr. (Photo by Win McNamee/Getty Images)

Highly regarded white-collar criminal defense attorney Mindy Kaling once wrote a book called Is Everyone Hanging Out Without Me? (affiliate link). I thought of that last night upon reading the late-breaking news that Donald Trump Jr., Paul Manafort, and Jared Kushner are expected to talk to Congress next week — Kusher in a private meeting with the Senate Intelligence Committee, and Trump Jr. and Manafort in an open Senate Judiciary hearing, where they will presumably testify under oath.

The risk isn’t only that they might incriminate themselves. It is also that, in the still-nascent stages of the Mueller investigation, they will be locking themselves in to a particular story. This could be a problem down the road. Kushner, for example, has had to update his national security questionnaire no fewer than three times. And it’s a lot easier to update a form than it is to walk back something you told Congress under questioning.

Mueller’s team is undoubtedly delighted about this decision. The Pulitzer Prize for Understatement should go to the Wall Street Journal for its description of his response when told about it:

Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, said Tuesday she had been informed that special counsel Robert Mueller, who is conducting a criminal probe of Russia’s actions during the election and any Trump campaign ties to them, had raised no objections to calling the attendees of the meeting before the panel.

“No objections.”  You think?

So upon first hearing what these three men had decided to do, I found it hard to imagine circumstances under which I would allow any client to talk to Congress — especially under oath — about the subject matter of an ongoing criminal investigation. And that would go double if the media had reported about my client what has been reported recently about all three of these people.

But then I started to think that the highly skilled lawyers representing these three people have been around much longer than I have, so maybe they know something I don’t know. Maybe they have looked at the evidence and see this case as having no legs — as being more of a political problem that they can solve by testifying than a potentially criminal one.

Or, even if they can’t solve the criminal problem, they can at least avoid what could be an even bigger political one.

Imagine what would happen if Kushner, Manafort, and Trump Jr. were hauled before the klieg lights of Congress and, upon advice of counsel, decided to take the Fifth every time they were asked a question. The political fallout would be enormous.

Most people, it turns out, aren’t criminal defense attorneys. Most people think that if you’re taking the Fifth, it’s not because — hypothetically — you worry that an overzealous prosecutor might later try to twist your words into a false-statements charge. Rather, it must be because you’re guilty of something.

In jury trials, of course, judges explicitly instruct the juries that they cannot hold a defendant’s silence against him. But despite what you may have read in Breitbart, we are not yet ruled by judges. So most people would inevitably conclude that all three of them are guilty.

So perhaps they and their lawyers weighed the risks of criminal prosecution against the potential political fallout and decided to act like most people think innocent people act — like they have nothing to hide.

This may be ultimately seen as a brilliant strategy, but I don’t know if I would have the stomach for it. As history teaches us — or at least teaches people who do what I do — it doesn’t take much for the government to conclude you’re lying to them and go after you.

Perhaps the best recent example of that is the ill‑fated Roger Clemens prosecution. Mr. Clemens, of course, swore under oath to Congress that he never took steroids. Then my former Office spent thousands of hours of lawyer time in an ill‑fated effort to prove that he lied. Ultimately, of course, he was acquitted on all charges. Perjury tends to be rarely charged and hard to prove.

And then, of course, there is their Trump card (sorry, couldn’t resist): the pardon power. If they are criminally prosecuted for any of this, President Trump could simply pardon them. I don’t know what he’d do with Manafort, but does anyone really think he wouldn’t pardon his namesake and his daughter’s husband in a New York minute? Legacy schmegacy; this is family.

So for now, I will doff my cap to the brave lawyers who think this is a good idea and have presumably decided that the political gain outweighs the risk of criminal prosecution. Sooner or later, we will all find out if they were right.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is

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