Federal prosecutors examining Donald Trump’s unauthorized retention of highly sensitive government documents at his Mar-a-Lago property will obtain testimony from top adviser Kash Patel after granting him limited immunity from prosecution, according to two sources familiar with the matter.
The immunity – a powerful tool that forces witnesses to testify on the promise that they will not be prosecuted for their statements or information derived from their statements – takes effect on 2 November and signals the importance of his testimony to the criminal investigation.
The justice department’s interest with Patel centers on his claims that the documents found at Mar-a-Lago were declassified, how the documents came to end up at the property, and how Trump’s aides and lawyers responded to requests for their return, the sources said.
The status of the documents is important because if prosecutors can prove that those seized by the FBI in August 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.
But the justice department’s focus on the declassification suggests federal prosecutors consider it relevant to the inquiry into Trump’s retention of documents at the Florida property, as well as whether Patel himself wanted to impede or obstruct the investigation if his claims were false.
As Patel is a close adviser to Trump – he maintains a personal relationship with the former president – who was also appointed as one of his representatives to the National Archives, the justice department is expected to ask Patel about the circumstances behind the documents at Mar-a-Lago.
The Guardian first reported that the justice department was considering granting Patel use immunity on Wednesday morning. The immunity order, confirmed by the Wall Street Journal, was transmitted to Patel’s lawyers hours later.
The push to secure Patel’s testimony intensified after he was summoned earlier this month to testify before a federal grand jury in Washington hearing evidence about Trump’s mishandling of government documents and potential obstruction when he resisted returning certain records.
Patel asserted his fifth amendment right against self-incrimination to an array of questions, the sources 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 examining 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 could only be considered criminal if he made them to Congress or the FBI.
But after chief US district court judge Beryl Howell in Washington agreed that Patel could justifiably believe he had reason to assert the fifth, the justice department applied for an order giving him limited immunity from prosecution that was granted late last week, the sources said.
Trump has only doubled down in recent weeks on the claim that all of the documents in his possession were declassified, while his office has said Trump issued a standing order that records taken to the White House residence were automatically declassified.
Trump also claimed to Fox News host Sean Hannity, when asked what procedures he used to declassify the documents, that presidents had the authority to declassify documents by the power of thought.
“Different people say different things but as I understand it, if you’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it,” Trump told Hannity.
But the justice department’s willingness to grant use immunity to Patel underscores how important they consider his testimony as prosecutors continue to collect evidence against Trump through his current and former aides.
Prosecutors only grant immunity to witnesses as a last resort, especially in high-profile cases, since it makes potentially prosecuting them in the future much more difficult, and the move requires internal approval at the highest levels of the justice department.
The justice department has also pressured Trump’s valet, Walt Nauta, to sit for an additional interview to answer questions about how Trump instructed him to remove boxes from a storage room at Mar-a-Lago where documents marked classified were stashed, one of the sources said.
Nauta has resisted having another interview with prosecutors – on the advice of his lawyer, who also represents Patel – after they indicated they were skeptical of an initial account he gave about moving documents from the storage room and raised the prospect of charging him with obstruction.
