Kash Patel, a top adviser to Donald Trump, testified before a federal grand jury in Washington on Friday about the former president’s unauthorized retention of government documents at his Mar-a-Lago resort, according to a source familiar with the matter.
The questioning from federal prosecutors centered on Patel’s claims the documents that the FBI found at the property had been declassified while Trump was still president, as well as why the documents had been removed from the White House, the source said.
Patel testified before the grand jury after the justice department this week granted him limited immunity, which guaranteed he would not be prosecuted in the criminal investigation over his statements or information derived from them.
The move to immunize Patel reflects the importance of his testimony about the purported declassification, and appears to reflect a decision to forgo a potential case against him in order to secure evidence against a bigger target such as Trump.
The status of the documents is important because if prosecutors can prove that those seized by the FBI during its search of Mar-a-Lago this summer were not declassified, it could strengthen a potential obstruction case contending that Trump used the claims as an excuse for why he did not return records that had been subpoenaed.
Trump and advisers like Patel have claimed repeatedly since the Mar-a-Lago search that the seized documents were declassified, though no such evidence has emerged and Trump’s lawyers have not repeated the assertions in court filings, where they could face penalties for lying.
The justice department did not believe that Patel would offer incriminating evidence against Trump. Still, federal prosecutors considered Patel – who Trump appointed as a representative to the National Archives – a witness with insight into the former president’s actions.
The Guardian first reported that the justice department was considering granting Patel use immunity on Wednesday morning, before it was issued later that day. The Washington Post earlier reported his appearance.
The justice department is typically loth to grant immunity, especially in high-profile investigations that can set legal precedents, since it can make bringing charges against the person in the future more difficult.
The approval must also come from the top echelons of the justice department, according to guidelines, and the preference for prosecutors to obtain testimony is to have defendants plead guilty and then have them offer cooperation for a reduced sentence.
The justice department approved federal prosecutors to seek an immunity order after Patel earlier this month appeared before a federal grand jury hearing evidence in the Mar-a-Lago documents case, one source said.
But Patel asserted his fifth amendment right against self-incrimination to an array of questions at the 13 October appearance, the source said, though the basis for some was not clear; even if the documents were not declassified, making false public statements would probably not be a crime.
In the obstruction investigation surrounding Trump by the former special counsel Robert Mueller, for instance, prosecutors concluded that the former president’s false statements about his campaign’s ties to Russia would only have been criminal if he made them to Congress or the FBI.
In a statement, a spokesperson for Patel emphasized how the Trump aide had no choice in testifying to the grand jury despite his reservations: “His testimony was compelled over his objection through the only legal means available to the government – a grant of limited immunity.”
