Why Not Unseal FBI Director Patel’s Grand Jury Testimony About Mar-a-Lago Documents?

Democrats make many unreasonable demands, but this was not one.

T he Trump administration is continuing its retributive purge of agents and prosecutors who participated in criminal investigations of President Trump. This time, Director Kash Patel of the Federal Bureau of Investigation, fresh from whatever official investigative business he was handling in Rome, has reportedly fired ten bureau employees, including some experienced agents. Their offense was involvement in the probe of Trump’s illegal retention of classified intelligence documents and his obstruction of a grand jury investigation into that matter.

It’s important to understand that FBI personnel are assigned to investigations; they do not get to choose what they work on. Of course, they can ask not to work on a case if doing so would present a conflict of interest. But apart from that rare situation, agents take orders from their chain of command.

No one has been a harsher critic than I have of the politicization of the Bureau at the headquarters level, and we have written plenty at National Review about malfeasance and misfeasance by line agents. But that doesn’t mean FBI personnel down the chain of command who carry out orders to, say, execute a warrant or obtain telephone records are doing anything wrong. Such actions are standard investigative procedures.

For that reason (among others), there are rules in place to protect agents and other FBI employees from politically motivated punishment. Moreover, at his Senate confirmation hearing, Director Patel promised that there would be no political retribution on his watch.

As I said at the time (see, e.g., here and here), Patel’s involvement in the Mar-a-Lago matter should have been explored in depth during his confirmation hearing. And now that he is complaining about how he was treated, as part of his rationale for firing agents who were assigned to a politically charged probe, it is all the more essential to get to the bottom of what happened.

In the Trump Justice Department’s revisionist history — the top priority of the Trump loyalists installed at the DOJ and FBI — the investigations of the President related to the Mar-a-Lago documents and the post-2020 election events leading to the Capitol riot (the January 6 case) were politicized shams, end of story. That’s not true.

The investigations were based on real misconduct. There are significant questions about whether it was criminally actionable misconduct — particularly with respect to the J6 case (as illustrated by the Supreme Court’s 2024 immunity ruling, Trump v. United States, some profound abuses of government power can only be addressed by Congress; they are not grist for court prosecution). But the Justice Department would have been remiss had it failed to investigate Trump’s post-election conduct.

As for the Mar-a-Lago probe, if Trump really believed he had done nothing wrong regarding the classified intelligence documents he recklessly hoarded at his South Florida resort home, he would have moved to quash the grand jury subpoena demanding that he surrender them. Instead, the known evidence indicates that he falsely represented (through lawyers) that he was fully complying with the subpoena by turning over some of the documents when, in fact, he willfully continued to withhold and conceal many of the documents. Those antics resulted in the FBI’s search of his residence pursuant to a judicial warrant — i.e., the agents didn’t barge in on their own authority; a magistrate judge issued a search warrant upon finding probable cause that Trump had committed felony crimes. And it was the decision of the Biden DOJ, not the FBI, to seek the search warrant.

I don’t think it can be credibly disputed that special counsel Jack Smith violated Justice Department rules by trying to rush two complex cases against Trump to trial, flouting his due process rights. It was a patently politicized attempt to influence the outcome of the 2024 election. That, however, does not mean there was no evidence of misconduct that was potentially criminal — and in the Mar-a-Lago case, almost certainly criminal.

As I recounted in the above linked posts, when Trump finally left office in January 2021 after the tumultuous final weeks of his term, he designated Patel as one of his representatives for dealing with the National Archives and Records Administration. To make a long story short, when it became apparent that Trump had retained classified intelligence documents, Patel made highly dubious public claims that Trump had declassified the documents while he was still president, and that the White House Counsel’s office had incompetently failed to document this action.

Consequently, as any proficient prosecutor investigating the Mar-a-Lago case would have done, Smith subpoenaed Patel to explain to the grand jury what he knew about Trump’s supposed declassification. Patel refused to testify, relying on his Fifth Amendment privilege against self-incrimination. (That doesn’t necessarily indicate that Patel believed he was guilty of a crime, but it is noteworthy.) Since the target of the probe was Trump and Patel was just a bit player, Smith made the rational decision to give Patel immunity from prosecution; that extinguished Patel’s Fifth Amendment privilege. He was thus compelled to testify (subject to potential prosecution for perjury, false statements, or obstruction if he testified dishonestly).

The now-Director did, in fact, testify. What did he tell the grand jury under oath? We don’t know.

Grand jury proceedings are secret by law. Had there been a trial of the Mar-a-Lago indictment, we’d undoubtedly have learned what Patel said under oath. But prior to the 2024 election, Judge Aileen Cannon (a Trump appointee) dismissed the indictment based on a constitutional defect in Smith’s special counsel appointment (i.e., not on the merits of the allegations). Smith and the Biden DOJ appealed, but the appeal was still pending when Trump won the election in November, after which the DOJ dismissed the appeal (consistent with longstanding DOJ guidance against prosecuting a sitting president). So the case was never tried and was conclusively closed by the Trump DOJ.

During Patel’s confirmation hearing, Senate Judiciary Committee Democrats asked that Patel’s grand jury testimony be unsealed so they could ask him about it. Democrats make many unreasonable demands, but this was not one. If the shoe were on the other foot, Republicans would have done the same thing. In a better time, senators from both parties would refuse to confirm a nominee for one of the nation’s highest law enforcement jobs if the nominee’s testimony in a grand jury investigation — testimony he originally refused to give by claiming his privilege against self-incrimination — were not disclosed. But this is not a better time. Committee Republicans, fearful of offending President Trump, refused to support the Democrats’ unsealing request. With their thin Senate majority, Republicans then pushed Patel’s nomination through on the barest of margins, 51–49.

Reportedly, Smith explained Patel’s relevance to the Mar-a-Lago case in a section of his final special counsel report. But at the president’s request, and with no opposition from the Trump Justice Department (of course), Judge Cannon last week ordered the DOJ not to disclose the report. (More on that coming this weekend.)

Yesterday, before Patel’s firing of the ten FBI personnel connected to the Mar-a-Lago case was announced, Patel gave this statement to Reuters about what we’re supposed to believe is the sudden discovery that, in connection with the Mar-a-Lago investigation, the FBI subpoenaed the phone usage records of both Patel and the president’s now-chief of staff, Susie Wiles:

It is outrageous and deeply alarming that the previous FBI leadership secretly subpoenaed my own phone records — along with those of now White House Chief of Staff Susie Wiles — using flimsy pretexts and burying the entire process in prohibited case files designed to evade all oversight.

I’ll address the Susie Wiles situation in a separate post. For now, suffice it to say that it has long been known that Wiles was interviewed by investigators during the Mar-a-Lago probe. Like Patel, she was a Trump confidant at the time, and I suspect the investigators thought Trump may have spoken with her about the documents. And, as the New York Times reports, “[t]he fact that investigators obtained some of Ms. Wiles’s phone records was made public during the inquiry into Mr. Trump’s mishandling of classified documents.”

Let’s stick with Patel. It is quite remarkable for the FBI Director to intimate that there was something untoward about the subpoenaing of his phone records — just the toll information, not the content of his conversations — when he knows that he was personally subpoenaed for testimony in the same investigation, and that he asserted his Fifth Amendment privilege against self-incrimination to try to avoid testifying. When he knows, moreover, that senators wanted to ask him about his grand jury testimony during his confirmation hearing but he wouldn’t discuss it and Republicans — in the Senate and the administration — refused to take any action to unseal it.

It is standard investigative procedure to subpoena telephone toll records (i.e., data about who called whom, when, and how long the contact took). It is also standard procedure to keep the FBI’s investigative collection of phone records secret, at least while the underlying investigation ensues. There are laws enacted by Congress, providing for both the investigative collection of phone data and secrecy (see Sections 2703 and 2705 of the penal code). The Justice Department and FBI use these laws all the time.

If the FBI, under Patel’s stewardship, is now telling people while the FBI’s investigations are underway that their phone records have been subpoenaed, I would be shocked.

In any event, Patel is now firing FBI personnel who were assigned to the Mar-a-Lago case (after promising there would be no retributive firings) and suggesting that the routine subpoenaing of the phone records of a relevant actor in a criminal investigation (i.e., himself) was nothing more than a political witch hunt. Given that, it would seem to be a propitious time to reopen the matter of unsealing Patel’s grand jury testimony.

The Mar-a-Lago case is now closed, disclosure cannot compromise it in any way, and Patel said during his testimony that he’d have no problem with the testimony’s disclosure — knowing full well, of course, that the Trump DOJ would not lift a finger to unseal it. Trump officials have claimed, time and again, that they run the most transparent administration in history. So how about being transparent about this? Let Congress and the public see the testimony so Patel’s public statements and his rationalization for firing FBI personnel can be assessed in that light.

That should go double for Smith’s final report on the Mar-a-Lago case. If the FBI director and other officials are going to suggest that Smith’s investigative measures were politicized and corrupt, we should be able to compare Smith’s explanation of what crimes he was investigating, what evidence supported the charges, and why it was relevant to obtain the telephone data of Kash Patel and Susie Wiles.