Patel has no legal authority to direct the release of his Mar-a-Lago testimony, though neither is there a bar to his being questioned about it.

At the confirmation hearing for Kash Patel, President Trump’s nominee to be FBI director, Senator Sheldon Whitehouse (D., R.I.) claimed that Patel has authority to order the release of his grand jury testimony in the Mar-a-Lago documents case. I’ll have more to say in a separate post about why Patel was a relevant witness in that case. Here, I will address why Senator Whitehouse is wrong about — or perhaps intentionally misstating — the controlling rule.

Rule 6(e) of the Federal Rules of Criminal Procedure excludes witnesses from the list of participants in grand jury proceedings who “must not disclose a matter occurring before the grand jury.” That means the witness may not lawfully be prevented from discussing his grand jury testimony with third parties — including, for example, his lawyer and the media. As should be obvious, however, the rule does not authorize the witness to direct that his grand jury testimony be released.

Grand jury testimony, which is usually transcribed, does not belong to the witness. It belongs to the government. Moreover, even if a witness had no objection to the public release of his testimony, its publication could reveal what investigators were probing and thus potentially endanger cooperating witnesses (who were sources of information for the prosecutor’s questions) and cause the destruction of evidence.

This, in part, is why grand jury proceedings are secret. It is also why — although I doubt the legality of such directives — prosecutors nowadays often admonish witnesses that if they speak publicly about matters before the grand jury, they could be prosecuted for obstructing justice. (Although I handled many violent crime investigations as a prosecutor, I never made such a threat; I tried to avoid having nongovernment witnesses testify in the grand jury until my investigation was at a point where it couldn’t be hurt by a witness’s public disclosures about his testimony.)

Whitehouse pressured Patel to announce that he would authorizing the release of his testimony. When Patel said that, while he supported the committee’s acquisition of any information to which it was lawfully entitled, he did not believe he had authority to direct release of the testimony, Whitehouse took him to task.

But Patel is right, and Whitehouse is wrong.

To be clear, there is no legal impediment to Patel’s being asked about, and testifying about, the matters covered in his grand jury testimony. Given that Patel (1) had to be granted immunity from prosecution before agreeing to testify in the Mar-a-Lago documents investigation and (2) is being considered for one of the top law enforcement posts in the country, I believe it’s entirely appropriate for Judiciary Committee Democrats to seek access to Patel’s grand jury testimony — indeed, Republicans should join them in that effort. I also think they should be able to question Patel about his grand jury testimony, although, in fairness to Patel (especially since this testimony was apparently lengthy and took place a couple of years ago), he should be able to review his testimony before being questioned about it.

But Patel has no legal authority to direct that his testimony be released. In fact, if a court of competent jurisdiction authorized the release of the testimony to the Senate, it would be irrelevant whether Patel supported or objected to its release. (As I understand his position, he is not objecting.) His position on the matter is irrelevant.

As a senator on the Judiciary Committee for many years, during which there have been several disputes over Senate access to grand jury testimony, Whitehouse should know the rule he’s invoking — and which he claimed to have just reviewed before questioning Patel.