Prosecutors seek testimony on Trump’s claims to have declassified documents
By Adam Goldman, Charlie Savage and Michael S. Schmidt
Federal prosecutors investigating former President Donald Trump’s handling of national security documents want to question one of his confidants about a claim that Trump had declassified national security documents he took when he left the White House.
That claim has hovered over the investigation since the confidant, Kash Patel; Trump himself; and other allies said publicly that Trump had declassified the documents while still president.
No evidence has emerged that Trump did so, and Trump’s lawyers have not repeated the claim in an ongoing court dispute with prosecutors over materials seized by the FBI during a search of Mar-a-Lago, his Florida estate, in August.
But the Justice Department’s interest in questioning Patel about the claim shows that prosecutors see it as potentially relevant to their investigation into the handling of the documents and whether Trump or his aides obstructed the government’s efforts to reclaim them.
The push for the testimony has also created friction between the Justice Department and Patel’s lawyers, who have argued that the department could use his statements against him if they build out a larger obstruction investigation.
The Justice Department has publicly acknowledged that obstruction is among the crimes it is investigating.
It is not clear whether prosecutors believe that misleading or false public statements by themselves could amount to obstruction. During the obstruction investigation into Trump by the special counsel, Robert Mueller, prosecutors examined misleading public statements made or directed by Trump about his campaign’s ties to Russia but concluded that they could only be considered the basis for criminal charges if they had been directed at misleading prosecutors or Congress.
In the case of the documents, the desire of prosecutors to question Patel about his declassification claim comes as they have ratcheted up their pressure in recent weeks on key witnesses.
Earlier this month, the prosecutors summoned Patel to testify before a grand jury in Washington hearing evidence about whether Trump had mishandled classified documents and obstructed justice when he refused to return the records to the government.
Patel repeatedly invoked his Fifth Amendment right against self-incrimination. In response, prosecutors asked a top federal judge in Washington to compel Patel to answer questions — a move Patel’s lawyers have strenuously opposed. The question now is whether the Justice Department will grant him immunity in order to secure his testimony.
Trump first learned that Patel had invoked the Fifth Amendment when The New York Times reported it Monday, according to a person briefed on the matter. Patel, who served as a top aide in the Pentagon at the end of Trump’s term, has publicly amplified misleading narratives about previous Justice Department investigations into the former president and has become an increasingly influential adviser to him since he left office.
Even if Trump had declassified the documents at issue, it would not change his exposure to two of the crimes the Justice Department is investigating, including obstruction of justice. Before the FBI search of his residence found 103 documents marked as classified, Trump had received a subpoena for documents with classification markings. He appears to have defied that subpoena regardless of whether he declassified the files, since they still bore classification markings.
Still, if Trump could show that he declassified the documents it would make a prosecution less appealing to senior Justice Department officials, who want as strong and clear a case as possible if they take the extraordinary move of charging a former president. Prosecutors would have to make a more complicated and legalistic case that he had flouted secrecy laws.
As a centerpiece of his defense in the court of public opinion, Trump has suggested that he declassified all the material he had in his possession. Asked by Fox News host Sean Hannity about what procedures he supposedly had used, Trump replied that presidents do not need to follow ordinary procedures and could even declassify materials with their minds.
Trump’s office also claimed in a statement to a pro-Trump writer that he had issued a standing order under which anything he took out of the Oval Office and up to the White House residence — from which boxes later went to Mar-a-Lago — automatically became declassified.
But former Trump national security officials say they never heard of any such order and deemed the concept of declassifying documents without anyone tracking them incoherent.
In any case, Trump’s lawyers have not repeated such claims in court, where there are legal consequences for lying. Instead, they have merely insinuated that he might have done so by stressing that presidents have broad power to declassify things in the abstract — but without making any affirmative claim that he actually did so.
In a lawsuit brought by Trump that resulted in the appointment of a special master, Judge Raymond J. Dearie, to oversee the vetting of the documents for any that are potentially privileged, Dearie pressed the Trump team to provide any evidence of declassification, but they resisted doing so. The U.S. Court of Appeals for the 11th Circuit, in an opinion from that same case, noted that there is “no evidence that any of these records were declassified.”
At this stage, however, the appeals court also called the question of declassification a “red herring” because it is irrelevant to the question of whether particular pages can be withheld from investigators under attorney-client or executive privilege.
In the Russia investigation while Trump was in office, Mueller examined whether Trump had committed obstruction of justice over a range of incidents, which Mueller’s final report described and analyzed. They included Trump’s involvement in drafting a public statement in June 2017 about a June 2016 Trump Tower meeting between Russians and senior Trump campaign officials.
The statement said the meeting was about international adoption, but failed to mention that the Russians had used the session to offer the Trump campaign derogatory information about Hillary Rodham Clinton. Trump helped develop the 2017 statement after learning about emails setting up the meeting that described the offer for dirt as “part of Russia and its government’s support for Mr. Trump.”
But Mueller’s report rejected the idea that this incident could be considered criminal obstruction. Withholding information or making a misleading statement in the press is not a crime, it said.