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A Fifth of Nothing

Justice Department grants partial immunity to top Trump adviser Kash Patel in classified documents case

The Justice Department has offered limited immunity from prosecution to Kash Patel, a top adviser to former President Donald Trump, as part of the government's investigation into Trump's unauthorized retention of classified documents, The Wall Street Journal, The New York Times, and The Guardian reported Wednesday, citing people familiar with the matter. The decision to shield Patel from his own potentially incriminating testimony paves the way for him to answer questions before a federal grand jury in the case. 

Patel was summoned before the grand jury in October to testify about what he knows about Trump's improper removal of documents from the White House after he left office, including how the files got to Trump's Mar-a-Lago club in Florida, how Trump and his team responded to requests and court orders for their return, and Trump's and Patel's unsubstantiated claims that Trump declassified sets of documents before he left office. 

"I was there with President Trump when he said 'We are declassifying this information,'" Patel told Breitbart News in May. Trump's lawyers have declined to repeat these claims in court, where there would be penalties for lying. 

Patel reportedly invoked his Fifth Amendment right against self-incrimination and refused to answer questions before the grand jury. Federal prosecutors "asked a federal judge to compel him to testify," arguing that "Patel had no reasonable expectation that he would be prosecuted based on the kinds of questions they were asking," the Journal reports. U.S. District Court Judge Beryl Howell disagreed, and prosecutors applied for an order granting him immunity and essentially voiding his Fifth Amendment claims. That order was granted Wednesday. 

It isn't clear how Patel's testimony would have opened him up to criminal exposure. "If Trump didn't declassify the documents, Kash would be admitting to lying in Breitbart, which is not only not a crime, but it is generally assumed of columns that appear in Breitbart," Marcy Wheeler writes at Emptywheel. "If Trump actually did declassify these documents with Kash as a witness, Kash has no legal exposure whatsoever." 

Patel's immunity offer comes "as prosecutors have increased their pressure on recalcitrant witnesses who have declined to answer investigators' questions or have provided them with potentially misleading accounts" about Trump's handling of the government documents, the Times reports. Trump could face charges of mishandling classified documents and obstruction, depending in part on the testimony prosecutors can obtain.