There are two situations in which one can lose all Fifth Amendment rights and must answer any question that admits to a crime. Both spring from the fact that one cannot be prosecuted no matter what is said. If one is pardoned for a crime, there is finality, and no matter what happens, a person cannot be prosecuted for that crime again. The second is accepting an offer of total immunity, again – taking away all threats of prosecution. The Justice Department is loathed to grant total immunity to someone and much prefers to make hang a deal over one’s head. But Kash Patel must know things so critical to the prosecution of Donald Trump and so unlikely to take a DOJ deal out of loyalty to Trump that DOJ is considering offering Patel l immunity. (It also goes to show how quickly DOJ is trying to move now with the mid-terms a week away.)
Immunity comes in two forms, “Total Immunity,” which is a promise to forego prosecution, or “Limited Immunity,” sometimes called “Use Immunity,” which means that the government promises not to hold anything you say as evidence in a trial against you.
From The Guardian:
The Justice Department is weighing whether to grant immunity to the Trump adviser Kash Patel and force his testimony about claims that highly sensitive government documents the FBI seized from the former president’s Mar-a-Lago resort were declassified, according to sources familiar with the matter.
There is a formal procedure to declassify documents that Trump did not follow, and yet the law is vague enough that Trump once seriously said that he could literally look at the documents to declassify them by thinking about it. Kash Patel is so loyal to Trump that Trump nearly made Patel CIA Director for the last two weeks of the administration (We leave Trump’s motivation for doing so to the consideration of the reader) Patel has said that he saw Trump broadly declassify the documents. DOJ seems intensely keen on establishing that at no point were the documents declassified in even the most rudimentary and vague means.
Again from The Guardian:
The status of the documents has emerged as relevant to the criminal investigation surrounding Trump’s mishandling of national security materials since it could strengthen a potential case that the former president was in violation of state secrecy laws.
Trump and advisers such as Patel have claimed repeatedly since the FBI search in August that the documents bearing classification markings found at the property had in fact been declassified before the former president departed the White House.
Herein lies the heart of the problem. Trump has a select group of people around him that seem willing to commit crimes in order to favorTrump. It is impossible to know how Trump holds such sway over people, whether it’s pure loyalty, threats, money, or whatever – but Patel is not obligated to accept total immunity and can take his chances.
Patel’s lawyer will most certainly advise that Patel take the deal. After all, the DOJ isn’t obligated to tell anyone all that they have on him or her. They need not show all their cards, either.’=
*Update: Patel has now been offered limited use immunity. Patel and his attorney will likely discuss whether the government has enough evidence from others to prosecute him anyway. If the DOJ likely does have that evidence, he is more likely to take the deal because cooperation with DOJ is everything when it comes to charges and then, especially, sentencing. He will want to be seen as helpful. It is possible that he’s extremely helpful.
Update: Harry Litman tweeted that Patel has been given limited use immunity:
Kash Patel gets limited use immunity, which means he can’t be indicted for truthful testimony. He may not have had much exposure on the Mar A Lago stuff; nevertheless it’s a very important and encouraging indication of the seriousness & advanced nature of the inves of Trump.
— Harry Litman (@harrylitman) November 2, 2022
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