Immunity Order Forced Key Trump Ally to Testify in Classified Documents Inquiry

WASHINGTON — When federal prosecutors investigating former President Donald J. Trump’s handling of classified documents subpoenaed Kash Patel to testify before a grand jury in late 2022, they were seeking more than background information. They were targeting a central figure in Mr. Trump’s public defense — a loyal ally who had repeatedly claimed that the former president had declassified sensitive materials before leaving office.

Mr. Patel initially refused to answer their questions, invoking his Fifth Amendment right against self-incrimination. But in a pivotal legal maneuver, the Justice Department obtained a court order granting him “use immunity,” compelling him to testify under oath while protecting him from having that testimony used against him in a criminal prosecution.

The immunity order, approved by Chief Judge Beryl A. Howell of the Federal District Court in Washington, marked a significant turning point in the classified documents investigation. It ensured that prosecutors would hear from a witness who had been both a close adviser to Mr. Trump and a vocal proponent of his claim that the materials stored at Mar-a-Lago had been lawfully declassified.

A Loyal Defender Turned Compelled Witness

Mr. Patel, a former chief of staff to the acting defense secretary in the final months of the Trump administration, had emerged as one of Mr. Trump’s most ardent defenders in the months after the F.B.I. executed a search warrant at Mar-a-Lago in August 2022. In media appearances, he asserted that Mr. Trump had issued a “standing order” to declassify documents removed from the Oval Office and taken to the White House residence — a claim that became central to the former president’s public narrative.

Legal experts noted at the time that no documentary evidence had surfaced to corroborate the existence of such a standing order, and former national security officials questioned whether such a sweeping declassification mechanism would have complied with established procedures.

When Mr. Patel was summoned before the grand jury investigating the documents case, prosecutors were reportedly focused on precisely those issues: the process by which the documents were packed and transported to Florida, what declassification steps, if any, were taken, and how Mr. Trump’s team responded to federal demands for their return.

Mr. Patel’s decision to invoke the Fifth Amendment suggested that his testimony might expose him to potential criminal liability. Under the Constitution, witnesses may refuse to answer questions if their responses could incriminate them.

But federal law provides prosecutors with a powerful tool in such circumstances. By granting “use immunity,” the government can compel testimony while barring itself from using the witness’s statements — or any evidence derived directly from them — against that witness in a future prosecution. The protection does not extend to other individuals, nor does it shield a witness from prosecution for perjury if he lies under oath.

After Judge Howell granted the immunity request, Mr. Patel returned to the grand jury and testified.

Strategic Implications

Former federal prosecutors say the move reflected a calculated strategy. “When the government seeks immunity for a witness who has publicly advanced a defendant’s theory of the case, it often signals that prosecutors want to lock that witness into sworn testimony,” said Renato Mariotti, a former federal prosecutor in Chicago. “If the witness’s public statements differ from what the evidence shows, putting him under oath forces clarity.”

Details of Mr. Patel’s grand jury testimony remain sealed, and neither the Justice Department nor Mr. Patel has disclosed its contents. Grand jury proceedings are secret by law, and courts have denied media efforts to obtain transcripts in the case.

Still, the legal significance of immunized testimony is clear. If Mr. Patel provided an account under oath that diverged from his public claims about declassification, prosecutors could potentially use that testimony in any subsequent trial of Mr. Trump — either by calling Mr. Patel as a witness or by using prior statements to challenge his credibility.

Under federal rules, immunized testimony may not be used to prosecute the immunized witness, but it can be used against other defendants. Moreover, if a witness later contradicts his grand jury testimony at trial, prosecutors can confront him with the earlier statements.

“Immunity changes the dynamic,” said Barbara McQuade, a former U.S. attorney. “It removes the Fifth Amendment shield and requires the witness to answer. Once that testimony is given, it becomes a fixed record.”

The Declassification Defense

Mr. Trump’s argument that he had declassified the documents at issue has been a cornerstone of his public defense. Legal analysts have long noted, however, that the Espionage Act — the statute underpinning several charges in the case — does not require documents to be formally classified for their unauthorized retention to constitute a crime. The law focuses instead on whether information related to national defense was willfully retained and whether the defendant had reason to believe it could harm the United States.

Even so, proof that no declassification occurred — or that no established procedures were followed — could undermine Mr. Trump’s credibility before a jury and weaken arguments about intent.

Prosecutors were also investigating potential obstruction of justice, examining whether efforts were made to conceal documents from federal authorities after a subpoena was issued demanding their return. Testimony from insiders familiar with how documents were stored, moved or cataloged could be critical to proving such allegations.

Confirmation Hearing Scrutiny

Mr. Patel’s grand jury appearance resurfaced during his later Senate confirmation hearing for F.B.I. director. When questioned by lawmakers about his testimony, he declined to describe what he had told the grand jury, citing the secrecy of the proceedings. He repeatedly stated that he had not committed any crime and expressed support for transparency regarding the transcript.

Legal scholars noted that while grand jury secrecy rules bind prosecutors and court personnel, witnesses themselves are generally free to discuss their own testimony unless a specific court order provides otherwise. Mr. Patel did not elaborate further.

A Broader Pattern

The use of immunity in high-profile investigations is not uncommon. Prosecutors often deploy it when they believe a witness possesses crucial information but is unwilling to testify voluntarily. By immunizing the witness, the government can obtain testimony that might otherwise remain inaccessible.

In the investigation into Mr. Trump’s business practices in New York, for example, prosecutors secured testimony from longtime executive Allen Weisselberg under certain agreements. Immunity and cooperation deals have also featured prominently in investigations of organized crime and public corruption.

Whether Mr. Patel’s testimony will ultimately play a decisive role in court remains uncertain. Trials are shaped by a range of evidence, from documentary records to electronic communications and witness accounts.

What is clear is that the immunity order ensured prosecutors heard from one of Mr. Trump’s closest associates on matters central to the case. By compelling sworn testimony from a public defender of the former president’s actions, the Justice Department solidified a record that could have lasting legal consequences.

As the case proceeds, the sealed grand jury transcripts remain out of public view. But the episode underscores a familiar reality of federal investigations: loyalty and public advocacy can yield to legal obligation when the power of subpoena and immunity intervenes.