Patel Testimony Sparks Disclosure Battle over Grand Jury Testimony and Jack Smith’s Mar-a-Lago Report

The always political Merrick Garland outsmarted himself, so Judiciary Committee Democrats lack the ammo needed to challenge the FBI nominee’s appointment.

I n a post yesterday, I explained that the Trump Justice Department’s abandonment of Biden DOJ special counsel Jack Smith’s Mar-a-Lago documents prosecution would trigger a battle over disclosure of Smith’s final report on the case (Volume II of his two-volume report; the already-disclosed Volume I laid out Smith’s version of the evidence related to the 2020 election interference case).

The battle is already on, thanks to President Trump’s nomination of Kash Patel to be FBI director.

Here’s the background. Trump is fond of Patel, who was the lead Republican staff investigator for the House Intelligence Committee during Russiagate, and he (along with his then-boss, former Representative Devin Nunes (R., Calif.), who was the committee’s ranking member at the time) figured out that the FBI’s claimed suspicion that Trump was in cahoots with the Kremlin was based on bogus information — mostly, the Steele dossier — that turns out to have been generated by the 2016 Hillary Clinton campaign. Trump recruited Patel to work in his administration, first on the White House National Security Council staff and later in short stints as principal deputy to the acting national intelligence director and, finally, chief of staff to the acting secretary of defense.

Patel remained in Trump’s orbit after the latter’s tumultuous departure from the presidency in January 2021. Among other things, the then-former president named Patel as one of his representatives for dealing with the National Archives and Records Administration (NARA). Trump, as we now know, was embroiled in a dispute with NARA over his retention of mounds of documents and other materials from his presidency, which, it turned out, included hundreds of classified documents.

In that connection, echoing Trump, Patel made bold public claims that Trump had declassified any classified documents in his possession. This claim is not supported by any document(s) reflecting such an order (or orders), notwithstanding that the Presidential Records Act requires presidential directives to be documented. Patel publicly blamed the White House counsel for this lack of documentary corroboration.

To be more specific, here is an excerpt from a May 5, 2022, Breitbart report of an interview with Patel:

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

“This story is just another disinformation campaign designed to break the public trust in a president that lived on transparency. It’s yet another way to attack Trump and say he took classified information when he did not,” he added.

Naturally, such statements and the surrounding circumstances made Patel a relevant witness in Smith’s Mar-a-Lago investigation. The prosecutor subpoenaed Patel. Relying on his Fifth Amendment privilege against self-incrimination, Patel declined to testify. Smith responded by granting Patel immunity in order to compel his testimony.

I’ll pause here to make an important point. Sometimes, people take the Fifth because they know they have done something illegal and believe that speaking would incriminate them. On the other hand, sometimes people believe they are innocent but that a mistaken or unscrupulous prosecutor is trying to build a case against them and would twist their words into admissions of guilt; therefore, they take the Fifth to protect themselves.

Consequently, an invocation of the Fifth Amendment is not necessarily an admission of guilt, which is why courts do not allow prosecutors to use a person’s invocation as evidence against him. Of course, Congress is a political arena, not a legal one, and partisans often use a political adversary’s Fifth Amendment claim to portray the adversary as a criminal. But that would not be permitted in a court of law.

In any event, Patel did testify in Smith’s Mar-a-Lago grand jury. By his account at today’s confirmation hearing, the testimony occurred a couple of years ago and was lengthy. As I related in an earlier post today, grand jury proceedings are secret by law, in the sense that prosecutors, grand jurors, stenographers, and court personnel are not permitted to speak about them outside the grand jury proceeding. (If an indictment is filed, as is usually the case, most of the grand jury testimony and documentary evidence ends up getting disclosed publicly — but only when the case goes to trial, which the Mar-a-Lago case never did.) Witnesses, however, are under no obligation of secrecy and may talk about their testimony.

Because the proceedings are secret, the publication of transcripts of grand jury testimony is tightly regulated. Testimony is not disseminated to Congress or witnesses in the absence of a court order. (Not to get too into the weeds here — though we did in another context — there is a solid legal argument, based on the text of Rule 6(e), that a court has no authority to order that grand jury testimony be provided to Congress; nevertheless, it has become customary for courts, under their vague “supervisory” authority, to order dissemination to Congress and others not covered by the rule.) Ergo, neither the Senate Judiciary Committee nor Patel has been provided with Patel’s grand jury testimony. As I observed in today’s earlier post, it’s quite understandable why committee Democrats would want to scrutinize the testimony (and I think committee Republicans should, too), but they would need a court order to get it. I would not hold my breath waiting for the Trump DOJ to be cooperative in that effort.

This brings me back to yesterday’s post, which I mentioned up top. Jack Smith’s final report on Mar-a-Lago (Volume II, as referred to above) is suddenly very relevant because it apparently contains sections about Patel’s actions and grand jury testimony. But like Patel’s testimony, Smith’s final report has not been released publicly; it is sealed and under the control of the Trump DOJ.

And why is that?

You may recall that Biden Attorney General Merrick Garland was blocked from publishing Smith’s final report by Judge Aileen Cannon. But although Garland and Smith bristled that Cannon had no authority to issue such a restraining order, they had to concede to the Eleventh Circuit that it would be improper to disclose the report.

For that, they had themselves to blame.

Even as they dismissed the Mar-a-Lago case against Trump (based on long-standing DOJ guidance holding that a sitting president may not be prosecuted), Garland and Smith pettily maintained their appeal of Cannon’s dismissal order as to Trump’s two minor co-defendants, Waltine Nauta and Carlos De Oliveira. This was calculated but foolish nonetheless. Because there were two remaining defendants in the case, it would have been prejudicial to them to release Smith’s final report — Cannon was right about that (even if her jurisdiction to do anything about it was dubious). That’s why Garland had to agree not to do it.

So why didn’t Garland just dismiss the case against the two minor players so he could publish the report? After all, he knew that once Trump took office, the new Trump DOJ would dismiss the case anyway. Well, as usual, Garland was playing a political game — and, also, as usual, it has now backfired on him and the Democrats.

Garland figured it would be a bad look for the Trump DOJ to dismiss the case against Trump’s co-defendants and that this dismissal would become a full-blown scandal if, after this dismissal, the Trump DOJ refused to disclose Smith’s report. Garland thus kept DOJ’s futile Eleventh Circuit appeal pending against Nauta and De Oliveira but proclaimed in a letter to Congress that if the case against them were closed (which he knew the Trump DOJ would do), the public interest would demand that the next attorney general publish Smith’s report.

Garland figured Trump would order Bondi not to publish the report, congressional Democrats and their media allies would go ballistic, and the new administration would have a flaming controversy on its hands.

Here’s the problem. The public, by and large, doesn’t care about the Mar-a-Lago case — if it did, Trump wouldn’t have been elected. The public thus hasn’t cared a whit about the dismissal of the appeal as to Trump’s two co-defendants — it barely made the news given the whirlwind of activity during Trump’s first days in office. Similarly, there has been no hue and cry for the release of Smith’s Mar-a-Lago report; after all, we know the story; Smith filed two extensive, narrative indictments; and the case was publicly litigated for two years.

But Senate Democrats need the report now.

Democrats want to use the report to impeach Patel’s confirmation hearing testimony; to argue that he took the Fifth and insisted on immunity because he feared he was guilty of crimes; and to contend that he is, therefore, unfit to be FBI director. While Republicans — certainly all of the Judiciary Committee Republicans — seem to have lined up solidly in support of Patel, Democrats figure that if there are bombshells in the grand jury testimony and Smith’s report, they might be able to persuade more Trump-skeptical Republicans to vote against Patel. They only need four GOP “no” votes to derail the nomination.

Democrats know what is in Smith’s report because, although he did not release it publicly, Garland made it available to the chairmen and ranking members of the Senate and House Judiciary Committees (as his above-linked letter explains). The problem is (a) they don’t have the physical report, and (b) to get limited access to it, they had to promise not to publicly release any information from it.

When Garland was still attorney general, he could easily have dismissed the case against Trump’s co-defendants, publicly released Smith’s Mar-a-Lago report (just as he released Smith’s 2020 election interference report), and applied to the court for an order allowing the Senate Judiciary Committee to have access to Kash Patel’s grand jury testimony. He instead decided to drop a political hot potato in the lap of the Trump Justice Department. But he miscalculated: The potato is lukewarm, and his fellow Democrats now lack ammunition they’ve suddenly realized is essential if they are to have any chance to defeat Patel’s nomination.

To get that ammo, they’ll now need cooperation from the Trump Justice Department. Good luck with that.