Kash Patel, a loyal aide to Donald Trump and former White House deputy, faced questions before a grand jury Thursday as part of a criminal investigation into the former president’s possession of classified records more than 18 months after he left office, according to a person familiar with the matter.
National security prosecutors asked Patel about his public claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago, his part-time residence and private club in Florida, according to the person with knowledge of the session, who spoke on the condition of anonymity to speak candidly about a grand jury probe.
Patel, a former federal prosecutor, is considered a key witness by the Justice Department in large measure because of what evidence he may provide in defense of Trump’s retention of the records, according to people familiar with the matter who spoke on the condition of anonymity in order to discuss it. Some of the records contained top-secret information about Iran’s missile system and intelligence related to China, The Washington Post has previously reported.
Investigators did not expect Patel to offer evidence implicating Trump in possible crimes, these people said. But they added that the government badly wanted his firsthand account, under oath, of any declassification decisions made by Trump.
Patel declared in media interviews in May and June that he was present when Trump decided to declassify material – though he brought up the subject in the context of investigations of any connections between Trump and Russian election interference, or past investigations involving Hillary Clinton, and did not mention the Mar-a-Lago probe, then in its early stages.
While Trump has publicly said he declassified material he brought to Mar-a-Lago, his lawyers have studiously avoided making such a claim in court filings – arguing only that he might have done so.
National security law experts interviewed by The Washington Post say prosecutors appear to have amassed evidence in the case that would meet some of the criteria for bringing charges against the former president – an unprecedented action that they said probably would only happen if the Justice Department believes it has an extremely strong case.
The government has seized about 100 documents with classified markings that remained at Mar-a-Lago this summer after Trump and his legal team responded to a grand jury subpoena demanding all such materials. In addition, a Trump aide has told the FBI he was instructed by the former president to move some boxes from a storage room after the subpoena was issued, people familiar with the matter have told The Post, and surveillance video obtained by the government shows boxes being moved.
Patel’s grand jury appearance was his second in less than a month. At his first appearance in October, he asserted his Fifth Amendment right against self-incrimination, according to people familiar with the matter who spoke on the condition of anonymity to discuss the situation. Prosecutors argued he was not in legal jeopardy and therefore could not take the Fifth, but a federal judge disagreed with the government.
Prosecutors ultimately decided to grant Patel limited-use immunity, the people familiar with the matter said, meaning he could not be charged for a crime based on what he said in the grand jury, as long as he didn’t lie.
That doesn’t mean his testimony will necessarily hurt Trump; it’s quite possible his answers could be helpful to the former president. But prosecutors would still very much like to understand how much of a declassification defense Trump may have, and Patel may be the witness most able to explain that.
Within days of Trump and his lawyers learning the FBI had begun a criminal investigation this spring, Patel offered right-wing media outlets what amounted to a public explanation for why Trump would still have so many sensitive government secrets.
“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance,” Patel said in a Breitbart interview on May 5.
“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” he said.
FBI agents have since queried other former administration officials on whether there was such a declassification – and, more broadly, how Trump handled classified records. They asked specifically whether the officials had seen any evidence of what Patel claimed.
During May and June, the FBI separately interviewed former deputy White House counsels Pat Philbin and John Eisenberg regarding a range of topics related to the handling of classified records, according to two people familiar with their interviews, both of whom spoke on the condition of anonymity to discuss an ongoing investigation.
The agents’ first set of questions focused on whether the lawyers participated in packing boxes of records for Trump’s departure from office or knew details about that effort. Both said they did not.
But FBI agents also pointed the former White House lawyers to Patel’s statements and asked whether they knew if Trump had actually declassified scores of records, the people said. Their questions tested the validity of Patel’s claims and also sought to learn what, if any, process the Trump White House followed to declassify records.
Both Philbin and Eisenberg told the FBI they had no knowledge of such mass declassification of records, the people close to the matter said. Eisenberg explained his view that Trump had the legal authority to declassify documents on the spot if he wished, though a subset of specific records required him to follow a statutory process, the people said. But he said Trump had not done so to his knowledge.
In fact, Eisenberg recalled to the FBI specific moments when Trump wanted to publicly tweet a classified image or fact from a top-secret document, the people familiar with the matter said. He told agents that White House officials encouraged Trump to follow a careful declassification process to ensure the intelligence or defense agency that produced the document could weigh in with concerns and assess the damage that even partial release could cause.
In one case, the people said, Eisenberg told agents that agencies quickly reviewed an image of an Iranian missile on a launchpad – a picture from a top-secret document – and removed identification markings and other tradecraft clues so that Trump could tweet it.
In handling another Trump request to tweet a national secret, Eisenberg told the FBI, according to these people, Trump was discouraged from immediately declassifying and sharing a document that could reveal human intelligence sources. Aides persuaded the president to wait for a multiagency review of the potential damage from a release, Eisenberg said, according to these people. In the end, Trump did not send the tweet.
John Bolton, Trump’s national security adviser until Trump fired him in September 2019, said in an interview that he has not been questioned by the FBI. He also disputed Trump’s claim that he had a standing order to declassify anything he took from the West Wing to his residence to review. And he said he was very skeptical of Patel’s description of Trump declassifying a trove of records all at once.
“There was never a standing order to declassify things. The notion of massive declassification or on a whim, declassifying things – I don’t remember Trump doing that. He didn’t do that,” Bolton said. “He acted so haphazardly that the formality of saying ‘declassify something’ just didn’t occur to him. He thought if he tweeted something out or said something, then it was just declassified.”