Legal experts: DOJ “going after Trump” by granting immunity to aide to testify about Mar-a-Lago docs

"Now that he has immunity… he has to testify,” ex-prosecutor says after Kash Patel repeatedly pleaded the 5th

By Igor Derysh

Managing Editor

Published November 3, 2022 9:27AM (EDT)

Former Chief of Staff to the Department of Defense Kash Patel speaks during a campaign rally at Minden-Tahoe Airport on October 08, 2022 in Minden, Nevada. (Justin Sullivan/Getty Images)
Former Chief of Staff to the Department of Defense Kash Patel speaks during a campaign rally at Minden-Tahoe Airport on October 08, 2022 in Minden, Nevada. (Justin Sullivan/Getty Images)

Justice Department prosecutors agreed to grant limited immunity from prosecution to Trump adviser Kash Patel to force him to testify in the Mar-a-Lago investigation, according to multiple reports.

Prosecutors investigating national security documents seized from former President Donald Trump's Mar-a-Lago residence granted immunity to Patel to compel his testimony in the case after he previously invoked his Fifth Amendment right against self-incrimination, The Guardian first reported. Patel is "set to soon testify" before a grand jury in D.C. after a federal judge ruled that the DOJ could not force Patel to testify without assurances that his statements would not be used against him, according to The Wall Street Journal, though he could still potentially be charged using information independent form his testimony or if he lies under oath.

Patel, who aided former Rep. Devin Nunes' efforts to undercut the Russia probe before serving on Trump's National Security Council and later as the chief of staff at the Defense Department, has publicly claimed that he was in the room when Trump "declassified" documents that he took home but declined to repeat his claim to prosecutors. Trump's lawyers have similarly declined to provide any evidence that he "declassified" any of the documents before leaving office despite repeated public statements. Patel, who was named by Trump as one of his representatives to the National Archives, in numerous interviews also discussed plans to publicly release secret documents related to the Russia investigation.

Prosecutors granted Patel partial immunity to force him to testify in the probe because he cannot plead the Fifth if he is immunized from charges. The DOJ's move is "presumably to get him to admit under oath that his statements were false, thereby undercutting a potential defense Trump could raise," predicted former federal prosecutor Renato Mariotti. "Now that he has immunity… he has to testify," he tweeted.  

Prosecutors have also offered similar immunity deals to other Trump associates involved in the Mar-a-Lago mess, including Trump attorney Christina Bobb, who "declined" and insisted "she didn't need it," according to the Journal. Bobb signed a declaration affirming that all documents had been returned in response to a grand jury subpoena this summer before the FBI found more documents marked classified during a raid in August. Bobb has since hired her own attorney and has said she is willing to cooperate with the DOJ, The Washington Post reported last month.

Trump has repeatedly claimed that he declassified the documents seized from Mar-a-Lago, even falsely suggesting that the president has such broad declassification powers he could do it with his mind.

"Different people say different things but as I understand it, if you're the president of the United States, you can declassify just by saying it's declassified, even by thinking about it," Trump told Fox News host Sean Hannity earlier this year.

Patel, whom Trump wanted to name to a senior position at the CIA or the FBI before senior officials rebelled, also repeatedly claimed that he was in the room when Trump declassified the documents.

"Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves," he told Breitbart earlier this year. "I was there with President Trump when he said 'We are declassifying this information.'"

But Patel declined to answer questions when he was asked about it by prosecutors and Trump's lawyers similarly pushed back on a request from federal Judge Richard Dearie — the special master appointed in the case at their request — when he asked for evidence of the declassification.

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Investigators have also sought further interviews with Walt Nauta, a former White House military valet who went to work at Mar-a-Lago, according to the Journal. Nauta previously changed his story in interviews with investigators and said that Trump ordered him to move boxes of documents after the May subpoena. He has refused to provide more testimony "out of concern that prosecutors are considering charges against him," according to the report.

Mariotti, the former prosecutor, said Patel's immunity deal shows that the DOJ's "target is Trump."

"This suggests that DOJ is seriously considering charges against Trump and building a case," he wrote.

"This is a big step for prosecutors," tweeted former U.S. Attorney Barb McQuade. "Granting a witness immunity is not done lightly, but sometimes you must sacrifice a small fish to land a big whale."

Though the DOJ agreed to the partial immunity deal, it "does not mean that the DOJ has promised not the prosecute" Patel, added former appellate lawyer Teri Kanefield. "It means that Patel's direct statements can't be used, but the prosecutor can use the statements indirectly."

Patel could also be prosecuted if he lies under oath.

"The deal with DOJ will spell out he's subject to perjury charges," wrote former U.S. Attorney Harry Litman, "and it's the kind of situation where they would aggressively bring them if they thought he lied on the stand."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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