Clinton Staffer Granted Immunity From Prosecution In Exchange For His Cooperation

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziIn a move that can only be viewed as ominous by the Clinton legal team, the Justice Department has granted immunity to former State Department staffer, Bryan Pagliano, who worked on Hillary Clinton’s private email server. Pagliano had refused to cooperate after invoking his Fifth Amendment right against self-incrimination. He was an obvious target of potential criminal charges if he knew that the server was meant to circumvent federal laws, including the mishandling of classified information.  Update: there is a new report that investigators are zeroing in on the possibility that passwords were exchanged to allow people to access classified sites (and explaining how classified information seem to “jump the gap” between secure and non-secure systems).  That is a strictly prohibited practice.


The presumption is that this would be “use” rather than “transactional” immunity and the law references a court order. Here is the operative section on use immunity.  While the law does contemplate a court order, some prosecutors rely on a formal letter that confirms that any statements are made on the understanding of use immunity, particularly in cases that are not before a grand jury at the time of the interviews.

The Justice Department will often ask for a proffer from a defense attorney on what his client could offer in exchange for immunity. For critics, concern is that the Justice Department could be immunizing Clinton aides from criminal charges through such actions. However, Pagliano is in a position to do considerable damage if he can discuss the intent and knowledge behind the move to circumvent the State Department email system. While other secretaries have used private emails, Clinton used it exclusively and after the creation of a secure email system designed to protect classified and sensitive information. The move to use a private server is widely viewed as an effort by Clinton to retain total control over her communications – a move that obviously increased the likelihood of foreign interception considerably.

250px-General_David_PetraeusIronically, the best case for Clinton is the conviction of retired four-star general and CIA director David H. Petraeus for mishandling classified information. The deal given to Petraeus by the Justice Department was absurd and rightfully led to objections that powerful figures like Petraeus and Clinton are treated differently from average people. Nevertheless, the Clintons can claim that Petraeus was far more egregious in his lying to investigators and knowing disclosure of top secret code words, identities of covert officers, war strategy and intelligence capabilities to his lover and biographer.

SandyBergerThen there was the late Samuel “Sandy” Berger, a former White House national security adviser to Bill Clinton, who faced that same charge after he intentionally removed and destroyed copies of a classified document (putting some material in his socks to sneak them out).  Berger was trying to protect Clinton in the reviewing of potentially negative classified information. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time.

Petraeus was fined $100,000 and sentenced to two years of probation.  In combination with Petraeus and Berger, a decision not to charge Clinton or her aides in mishandling classified information would raise serious questions for the Justice Department in later seeking indictments for others.  In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations.  Yet, the closing of the investigation without criminal charges could be viewed by people in the FBI as effectively gutting the classification laws or exposing the government to claims of hypocrisy in future cases.

Of course, any charge, even a misdemeanor, could be devastating for Clinton. Moreover, while most defense attorneys would advise against speaking with investigators if they view their client to be a potential target, Clinton does not have that luxury politically. The FBI clearly must interview Clinton and that interview would have to occur before the election in all likelihood.  This is where the Pagliano deal could pose a serious threat.  Clinton has to worry not only about violations of the classification laws but also any false statements made to investigators under 18 U.S.C. 1001.  If Pagliano relays any conversations reflecting a desire to evade federal laws, Clinton could be faced with contradicting her public statements that this was done merely for convenience or tripping a charge under Section 1001.  The same is true for her closest aides who have been accused of transmitting material that was “born classified” (even if it was not marked as such in the emails).

Clinton continues to maintain that the use of her private server was not “bad judgment”, though she regrets that it was not as “convenient” as she had hoped. Few people seriously believe that all of the work to set up a personal server was just to avoid carrying multiple devices (which experts have noted would not have been required). It appears part of the signature tendency of the Clintons to resist disclosures and control information. One can certainly argue that this is a tendency born from years of investigation. However, in this case, there is no question that the use of a private server exposes classified and sensitive information to interception. It was a highly reckless act.

Clinton has insisted that “I never sent classified material on my email, and I never received any that was marked classified.” The key of this spin is again the word “marked.” I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Indeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. Classified oral communications are not “marked” nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be “marked.” This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.

As someone who has worked with classified information for decades, I remain flabbergasted by both the decision to use the private server and the spin following the controversy. As president, Clinton could never maintain this position in allowing subordinates to use unsecure private servers. Indeed, one of the emails has her expressing surprise at the use of an unsecure system by a subordinate. By last count, some 2050 emails are considered classified and some 22 contain top secret information. By any objective measure, that is a serious concern.

88 thoughts on “Clinton Staffer Granted Immunity From Prosecution In Exchange For His Cooperation

  1. In my most recent comment with several links, I wanted to clarify and add: Olly’s right.

    We’ll never see Clinton in a cell. She’s a woman, not held accountable by the law. Just take a look at many of our cases regarding sexual offenders, repeat offenders, and those who commit cruelty, etc. and so on. They’re more likely to be either given the slap on the wrist w/ or w/o probation, a light jail sentence, or house arrest.

  2. @TexanPolly

    WordPress itself automatically moderates comments with 2 or more links. Sometimes, wordpress moderates even one link comments if the link has a targeted type word in it. For example, I can not post links to Naked Capitalism because of the word “naked” in the link.

    Plus, certain naughty words send the comment into moderation.

    Squeeky Fromm
    Girl Reporter

  3. The Washington Post reported this morning that now authorities are starting to review the emails of Colin Powell and Condoleeza Rice.

    It will be interesting since many Bush officials had brushes with the law like shoplifting charges at Target, Monica Goodling violating the Hatch Act and officials violating the Privacy Act (felony crime if shared with other people).

  4. Mr. Groen,

    “She’s not untouchable or Willie wouldn’t have been working the polling-station circuit this past Tuesday. And there’s no other reason he was doing it: he’s too old and …”

    Thanks for that comment. I found it informative.

    Methinks a Clinton presidency is the only possible way that this will all go away. Probably a lot of fear behind her campaign.

  5. Makeup for Her Royal Thighness by Bela Lugosi.
    I see Donna Brazile in the right behind Her Worship, and is that Racial Maddow further back on the Left? Who is Ms. Brazile, Vice Chairwoman of the Democratic National Committee, to be in that room if this is ANYTHING but a political position statement by the witness?

  6. @Squeeky

    So that must be why my comment had been moderated. That does suck. Would that constitute a form of censorship? I would think so, though others may not agree.

    My comment had nothing to do with pr0n but what what’s wrong with voting in Presidents, consenting while being governed, and not realizing that critical issues are far more important than what the candidates are saying. Were they omitting the facts when the Gallup Poll indicated that in the minds of most Americans, the worries comes from:

    1) Government (Congress, Politicians, President)
    2) Economy (mainly how to deal with the economy and insulating America through self-reliance using the Keystone XL oil pipeline)
    3) Immigration and Unemployment (these were both tied and were the top 3 worry.)

    Even though Immigration is talked about a lot, I don’t think the candidates ever have realized that deeper problems comes from:

    1) Judicial system
    2) Marriage/Divorce system
    3) Corporatism and its effects on the democratic process
    4) Wealth inequality and the high effects of corporate inversion

    Corporate inversion needs to be nullified by lowering the corporate tax and closing the loopholes allowing companies to funnel money out of the US and then bringing in “clean” money without having to pay taxes. Not only that, we also need to start implementing a flat tax, like Russia, across the board to recoup losses, instill more honesty among citizens, and start focusing on what matters as opposed to raising taxes so high, demanding spending into three top areas: welfare entitlement programs, defense, and government waste on programs that aren’t needed.

    While I agree that our military needs to be top notch and updated in the latest technology, the means with which to use our taxes to pay for our defense and burdening Social Security is killing off our future generations. Social Security is at least 16% of our debt at this point. How do we remedy this problem? The Democrats were the ones who introduced the Social Security system in the first place with a majority in the House/Senate. When I ask a Democrat how to remedy this problem, many have turned their eyes away and never answer.

    When they put the “Bern” on Republicans, I use Social Security as an argument point to drive home. Most 16% of our debt were instituted by Demcrats in the beginning but never ended with Democrats saying, “We have effectively cut down our debt 16% by remedying this problem. We will continue to have insolvency beyond our years.” Not one Democrat.

    As for the consent to be governed, I replied to RB’s comment: “The truth is the United States is now a banana republic with kangaroo courts – the whole system is about petty politics and has nothing to do with justice.”

    So, if you believe the whole system is about petty politics, why are you continuing to consent to be governed? So many people already gave their consent. It is possible for so many people to withdraw their consent if they so wished. Such a reality would never happen though.

  7. @Nate

    “Methinks a Clinton presidency is the only possible way that this will all go away. Probably a lot of fear behind her campaign.”

    Yep. I think a Hitler chancellorship is the only possible way that this will all go away. Probably a lot of fear behind Hitler’s campaign. That’s what you’d say in 1932, right? While a poor but pale comparison, it still stands.

    The logic behind allowing a Clinton to take the reins of a presidency once again shows that you really do not realize the probabilities of having dynastic families being elected in time and again. To do so would have founded ourselves a form of pseudo-monarchies, using the fading collective form of democracy and a republic altogether in some twisted semantic way that radical feminists are known to use.

    Also, Clinton is under investigation. If she’s under investigation for Benghazi-gate, the private server emails, and much more, it is all the more reason that Clinton should step down, continue to be investigated, tried in courts. If she is convicted, she can never run for President again. If she is not convicted, let her resume her Presidential candidacy in 2020, if she’s still breathing and living. Let’s assume she’ll do everything in her power to not croak before 2020; when the mind’s so determined, it defies all will.

    Oh and let’s not forget Telomerase. She may be using it to prolong her life so she can actually win a candidacy based on her gender.

  8. @TexasPolly

    The average American will not grab his gun until it is already too late. As long as we have a roof over our heads, food, and a TV set it isn’t going to happen. The gov’t will eventually just start printing money to cover the debt, and we will experience inflation, and we will do a reset. We will have long lost our lead over other nations, and I look for us to be replaced by a people with a strong belief in a God of some sort and family. Might be the muzzies if they can survive the Western World’s attempt to make perverts and drug users out of them. I will probably be long dead when this happens, as it will take quite a while for America to hit rock bottom without a pandemic, a complete financial collapse, or a natural calamity.

    Squeeky Fromm
    Girl Reporter

  9. @ Squeeky Fromm

    Any one of those apocalyptic scenarios might work but I don’t think that would happen too soon. Even if it did, not very many Americans own a lot of guns. 1/3 of Americans own more guns, affording them. In order to get them, they’d have to loot the stores, grab ammo, and start fighting. On the bright side, Oathkeepers, police officers, and others would be on the Americans’ side.

    As for the Muslims, I don’t think so. The Western world is too highly resistant to the virulent strain of Islam. Germany, and its citizens, have severely criticized Merkel (or Morkel as some Germans call her) for her immigration policies with welcoming the ‘rapefugees’. Many German women have started to arm themselves with knives, any sharp objects, and other types of weapons legally allowed. There’s a German group, defined as a hate group, called PEGIDA, which is anti-Islam. They march around in protest of Muslims who refuse to integrate with Germany, its culture, and laws (das Gesetz). Then there’s the Neo-Nazis, who once upon a time, seized a pig and cut its head off. They placed the freshly cut head upon the door of a Muslim mosque, threatening Muslims. Muslims couldn’t touch pigs because pigs are ‘unclean’.

    Then there’s Hungary who refuses to allow migrants to live there. Serbia is very anti-Islam, refusing to allow the same thing to happen to them. Danes have come up with a very intriguing policy, where they send ads to Lebanon, warning migrants to never come to Denmark. Denmark doesn’t want to be a moral superpower and refuses to allow migrants from third world countries to live there. Norway and Sweden are starting to consider these policies; though Absurdistan (i.e. Sweden) is too long gone. France is starting to be hostile to Islam with Jews running around beating the crap out of Muslims. Police refuse to go into banliueres (or no-go zones) as they don’t have the manpower yet but they have said that crimes have flourished with Muslim gangs running drugs, women, booze, etc.

    Then there’s Russia. Russians do not take kindly to Muslim migrants, most especially Northern Russia. There have been reports of Russians seeking out Muslim migrants, beating the literal crap out of them, telling them to go home. Most migrants completely avoid Russia.

    As for Poland, they’ve gone too far right and have told Muslims in a YouTube video, warning them to never go to Poland. The Poles actually treat their women with respect, require immigrants to uphold their traditions and act like behaved, civilized men. They also said that they would literally kill a Muslim if he ever so much tries to rape a Polish woman, or child. There was a YouTube video of Polish men at a beach with lots of beautiful women. Some of the Muslim migrants attempted to ‘cop’ a feel off several Polish women. You’ll see a throng of middle-aged and young men approaching the Muslim migrants, beating the living crap out of them. They also warned them that if they ever do it again, they’ll never see sunlight again.

    So, the Western world isn’t truly ready to accept Islam, or its adherents; multiculturalism is a failure. The Brits have gone too mad, believing that feminists are 100% right. Every time the Brits see countries accept more migrants from Islamic third world countries, their only response is, “Good luck, lads! You’ll see what the Taharrush Gamea is soon!” They then proceed to sit back, laugh, and acknowledge that multiculturalism has failed them but they’re despondent enough to fight back. They tried a series of clashes with Muslims back in 2013-2014 but the police have intervened, blocking the Britons from beating the literal crap out of them. The Muslims ran back to their no-go zones many times to avoid the beatings from the natives.

    We aren’t ready for Islam to take over but many people on YouTube and in their minds are very welcome to the idea of a Christian Crusades once more, pushing back Muslims to their own mud hovels and slums with their 7th century barbarism.

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