Whitehouse, Booker, and Schiff call on Chairman Grassley to pause until Patel shares essential information related to grand jury testimony he provided in Trump classified documents case and Fifth Amendment invocation
Washington, DC – In the meeting of the Senate Judiciary Committee, U.S. Senator Sheldon Whitehouse (D-RI) this morning called out the “extremely dangerous […] astonishing precedent” set by the nomination process for Kash Patel to serve as Director of the FBI.
Whitehouse, along with U.S. Senators Cory Booker (D-NJ) and Adam Schiff (D-CA), sent a letter to Senate Judiciary Chairman Chuck Grassley (R-IA) before the meeting requesting a delay in the confirmation process until Patel shares information about the federal grand jury testimony he provided in Donald Trump’s classified documents case, as well as Patel’s invocation of the Fifth Amendment.
The Senators wrote in their letter, “When an individual seeking to lead the FBI has declared himself to be at substantial and real risk of criminal prosecution, that merits further inquiry.”
The trio’s letter follows a request from all Democrats on the Committee for another hearing on Patel’s nomination to answer serious new questions that have arisen since his testimony last week.
Whitehouse’s full remarks in today’s meeting are below.
Thanks, Mr. Chairman. I just wanted to address the letter that three of us sent to you related to a new precedent that this committee seems to be setting. During the hearing, Senators Schiff and Booker and myself asked questions about what transpired in the grand jury that Kash Patel testified in. He was unwilling to disclose any of that, even though Rule 6(e) very plainly allows for a witness to come out of a grand jury and describe to the entire world what it is that they told the grand jury.
He then said, when confronted with that legal fact, that he thought that there was a seal order of some kind that he was under that would prevent him from doing the customary witness disclosure that is commonplace, a commonplace right under 6(e).
In that regard, we’ve looked wherever we can. We’ve asked him where this order is. There is no sign of a seal order that would bear any relationship to his testimony. So, there’s the very real prospect that he’s simply being untruthful about there being a seal order. The further aspect of this is that he asserted his Fifth Amendment privilege not to incriminate himself during the course of these proceedings. That, as a matter of law, requires that he have had a substantial and real risk of criminal prosecution when he made that assertion.
So, if an incoming FBI Director has faced a time when he believed he had a substantial and real risk of criminal prosecution, it seems to me that it’s pretty elementary that this Committee, acting on his nomination to that office, should have some idea of what the crime would have been.
And last, those of us who have practiced law understand that if a witness asserts a Fifth Amendment privilege and then appears in another proceeding, like a civil proceeding, for instance, and does not testify because of that Fifth Amendment privilege, the jury in that case will be instructed by the judge that those jurors are allowed to draw the adverse inference that what he would have testified, had he not pled the Fifth, would be adverse to his interests, and he could be treated as having testified adversely to his interests, that the facts would be adverse. So, if a court, a regular district court in a regular trial, can draw that adverse inference about what is behind a Fifth Amendment assertion, then damn, this Committee ought to be able to draw the same adverse inference or have that adverse inference dispelled by having this individual actually testify about it.
If we want to do this in closed session, if we want to do this with some safeguards, all of that is fine. But you spoke very eloquently at the beginning of this, Mr. Chairman, about the importance of precedent, and I just want to mark right now that this is a first-time precedent in which a nominee for a senior law enforcement position in the United States of America has asserted a Fifth Amendment privilege about his own conduct, and has testified in front of a grand jury, and the Committee is being denied access either to the gravamen of his Fifth Amendment assertion, or the content of his grand jury testimony. To me, that is an extremely dangerous, and indeed even astonishing, precedent. I’ll ask that the letter that we sent be put into the record.
