In Clash over Grand Jury Testimony, Patel Is Right and Senator Whitehouse Is Wrong

At the confirmation hearing for Kash Patel, President Trump’s nominee to be FBI director, Senator Sheldon Whitehouse (D., R.I.) claimed that Patel has authority to order the release of his grand jury testimony in the Mar-a-Lago documents case. I’ll have more to say in a separate post about why Patel was a relevant witness in that case. Here, I will address why Senator Whitehouse is wrong about — or perhaps intentionally misstating — the controlling rule.

Rule 6(e) of the Federal Rules of Criminal Procedure excludes witnesses from the list of participants in grand jury proceedings who “must not disclose a matter occurring before the grand jury.” That means the witness may not lawfully be prevented from discussing his grand jury testimony with third parties — including, for example, his lawyer and the media. As should be obvious, however, the rule does not authorize the witness to direct that his grand jury testimony be released.

About the Author

Andrew C. McCarthy

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.

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At the confirmation hearing for Kash Patel, President Trump’s nominee to be FBI director, Senator Sheldon Whitehouse (D., R.I.) claimed that Patel has authority to order the release of his grand jury testimony in the Mar-a-Lago documents case. I’ll have more to say in a separate post about why Patel was a relevant witness in that case. Here, I will address why Senator Whitehouse is wrong about — or perhaps intentionally misstating — the controlling rule.

Rule 6(e) of the Federal Rules of Criminal Procedure excludes witnesses from the list of participants in grand jury proceedings who “must not disclose a matter occurring before the grand jury.” That means the witness may not lawfully be prevented from discussing his grand jury testimony with third parties — including, for example, his lawyer and the media. As should be obvious, however, the rule does not authorize the witness to direct that his grand jury testimony be released.

About the Author

Andrew C. McCarthy

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.