Kash Patel is an unusual choice for F.B.I. director in many ways — including that he once asserted his Fifth Amendment right to not incriminate himself while being questioned before a grand jury.
In television and films, “taking the Fifth” is often a dramatic high point in the plot. In public life, asserting the right not to incriminate oneself can be devastating to a reputation, particularly for government officials.
Invoking the Fifth Amendment, however, is not an admission of guilt or wrongdoing, and many lawyers advise clients to assert the right, particularly in instances where it is unclear what investigators are trying to prove. In Mr. Patel’s case, he invoked it before a grand jury examining whether Mr. Trump mishandled national security secrets in repeatedly refusing to return classified documents.
On Wednesday, Democratic senators raised concerns about Mr. Patel’s testimony, including his assertion of the Fifth Amendment, underscoring that his private remarks would be a point of contention during his confirmation hearings.
The lawmakers said they should be told of any relevant information about Mr. Patel contained in a report by Jack Smith, the special counsel who investigated Mr. Trump. Currently, the portion of the report dealing with the classified documents found at Mr. Trump’s Florida resident remains a closely held secret within the Justice Department.
Mr. Patel, a former federal prosecutor, public defender and congressional aide, was questioned in 2022 about his public claims that Mr. Trump had somehow ordered the documents declassified.
At first, Mr. Patel refused to answer, citing his Fifth Amendment rights, according to people familiar with the investigation who spoke on condition of anonymity to describe grand jury issues. Prosecutors eventually granted Mr. Patel limited immunity, in order to find out what defense, if any, he might be able to offer for his former boss.
In another era of American politics, invoking the Fifth Amendment might be considered disqualifying for someone seeking the job of F.B.I. director — one of the most powerful and sensitive jobs in the government. But Mr. Patel’s assertion of the privilege came as he was defending Donald J. Trump, in what amounted to a show of loyalty.
Former baseball slugger Mark McGuire essentially took the Fifth when he was questioned by Congress about steroids, and his reputation suffered tremendously. Former pharmaceutical executive Martin Shkreli asserted his Fifth Amendment right not to answer questions to Congress, and he was eventually convicted and sent to prison.
Both those men, however, asserted the right to not speak on live television. Mr. Patel invoked it behind closed doors.
Regardless of Mr. Patel’s testimony about the purported declassification, prosecutors eventually indicted Mr. Trump.
In their letter on Wednesday, Democrats on the Senate Judiciary Committee urged the acting attorney general, James R. McHenry, to let them see portions of the still-sealed volume of the Smith report.
“The committee cannot adequately fulfill its constitutional duty without reviewing details in the report of Mr. Patel’s testimony under oath, which is necessary to evaluate Mr. Patel’s truthfulness, trustworthiness and regard for the protection of classified information,” the Democrats wrote. “This is of utmost importance, as Mr. Patel has been nominated to hold one of the nation’s most important law enforcement positions.”
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