On Monday night, the leaders of the Senate Judiciary Committee issued a subpoena to compel Paul Manafort, the former chairman of the Trump presidential campaign, to testify at a public hearing on Wednesday. The subpoena came as a surprise because just days earlier, Manafort and Donald Trump Jr. had reached a deal with the panel where they would provide records and be interviewed privately (versus in open session) in order to avoid being subponeaed at that time. According to the statement from Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein, negotiations with Manafort broke down over who in Congress would be able to access his transcribed interview:
Mr. Manafort, through his attorney, said that he would be willing to provide only a single transcribed interview to Congress, which would not be available to the Judiciary Committee members or staff. While the Judiciary Committee was willing to cooperate on equal terms with any other committee to accommodate Mr. Manafort’s request, ultimately that was not possible.
To better understand this latest development, I turned to Andy Wright, Just Security’s in-house expert on congressional investigations, to help explain it.
Q: Why did the Senate Judiciary Committee decide to subpoena Manafort when it appeared he was all set to testify in closed session on Wednesday?
Manafort made demands that the committee, and likely the broader Congress, could not accept. The committee wanted to get a transcribed interview of Manafort and Trump, Jr. before any subsequent public hearing. Sen. Grassley, as committee chair, had threatened to issue subpoenas for a public hearing, and used that leverage to obtain agreements to voluntarily appear for transcribed interviews. However, unlike a hearing under subpoena compulsion, someone who voluntarily appears can seek to extract some procedural concessions from the investigating committee. For example, witnesses might seek commitments on the duration, format, legal representation, and transcript access (so the witness can review for error). Once negotiations broke down, the committee reverted to its compulsory subpoena power.
Q: What was Manafort not agreeing to? What was the deal breaker for him?
First, Manafort wanted to do only one transcribed interview before all of Congress. From his perspective, one interview minimizes the risk that differences in his answers, whether semantic or material, would be used as a perjury trap. However, it’s a terrible deal for Congress. A single shot would mean that other committees, including the Senate Intelligence Committee, the House Intelligence Committee, and the House Oversight Committee would all have to rely on the Senate Judiciary’s single transcript. More important, they would have had to rely on Senate Judiciary’s questions. Other committees have different jurisdictions, different interests, and different memberships that may want to take questioning in other directions. Also, it might risk losing the opportunity to get Manafort on the record about facts we learn later.
It appears from the statement that the Senate Judiciary Committee was open to trying to play the “pool reporter’” role for the other committees. I can’t imagine any other committee would agree without being able to participate in the questions, and Senate Judiciary has no authority to extinguish other committees’ interests, especially in the House. Perhaps Senate leadership could engage in deconfliction, but the House has its own prerogatives and constitutional role.
Second, Manafort sought to get an agreement that Grassley and Feinstein would restrict committee staff and member access to the interview transcript. That was a bridge too far. The transcript would then be of little utility to the investigators. I’m not convinced that the committee’s or Senate’s rules would allow restrictions on Member access to non-classified materials, especially other committee members.
Q. Why is a transcribed interview that can be shared among committees so important?
Confining Manafort’s interview transcript within one committee would significantly hamper Congress’s investigations. Committees have different jurisdictions, interests, and agendas. For example, the Senate Intelligence Committee has interests in counterintelligence and Russian election interference. They have access to intelligence products that the Senate Judiciary Members do not. Naturally, Senate Intelligence will have different questions for Manafort than Senate Judiciary. And those questions are critical to the overall inquiry. Adding to the confusion, Manafort met with the Senate Intelligence Committee on Tuesday.
Q. How unusual is Manafort’s request?
It is not unusual for witnesses to make requests that their transcripts, or certain topics covered, be kept confidential by a congressional committee. However, Congress almost never agrees. The problem here isn’t that Manafort made the request, but that his legal team believed it was gettable.
Q. What will the committee be able to compel Manafort to do with this subpoena? Will they be able to get more than a single transcribed interview? Will the hearing now move into open session versus behind closed doors?
Under both House and Senate rules, congressional subpoenas can command two things: production of documents and appearance to testify at a formal hearing or deposition. The rules do not permit compelled transcribed interviews. That is why Congress uses its subpoena power threat, which raises the specter of public shaming, to extract agreements to sit for nonpublic transcribed interviews. That was the process here, but it apparently went off the rails.
Q. Could this affect whether Donald Trump Jr. still testifies on Wednesday or are those negotiations separate?
Those negotiations would be separate, although I’m sure his legal team is acutely monitoring these developments. We still don’t know the terms of Trump, Jr.’s interview.
Q. What happens next?
If they don’t strike a last-minute bargain, Manafort will need to appear at the hearing ready to testify tomorrow. If he does not show, the Committee could find him in contempt. I would not be surprised if Manafort pleads the Fifth at this point. However, given his meeting with the Senate Intelligence Committee, Manafort may have waived the Fifth at this point. If he does show and testify, I anticipate he will get extremely rough treatment by members of both parties.