In 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.
Ironically, 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.
Then 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.
This whole saga reminds me of the movie, The Bedford Incident.
Captain Finlander is the unhinged bureaucratic state..
The Soviet sub is Clinton
The Commodore is the voice of reality
Ensign Ralston is the ignorant electorate
Captain Finlander: He didn’t surface during the night, he couldn’t, we must’ve been directly over him. So he’s out of breathing air. Staying down, he couldn’t charge his batteries, so he can’t run. And there he is. So you see, Commodore, we’ve accomplished the most important step. We’ve made him desperate.
Commodore Wolfgang Schrepke, Deutsche Marine: He’s certainly desperate. That is the danger. You are dealing with a desperate force.
Captain Finlander: And we’re a determined force.
Commodore Wolfgang Schrepke, Deutsche Marine: YOU are in the power here, Eric. It is not a force, it is just you.
Captain Finlander: Uh, you mean you’re trying to say that, uh, you consider ME desperate.
Commodore Wolfgang Schrepke, Deutsche Marine: No, Captain. To be frank, I consider you frightening.
_________________________________
[after Finlander orders an anti-submarine rocket armed]
Commodore Schrepke: This is insane!
Captain Finlander: Now don’t worry, Commodore. The Bedford’ll never fire first. But if he fires one, I’ll fire one.
Ensign Ralston: [launching the rocket] Fire One!
To do either of the sbove, Olly, he must, FIRST, pass a hurdle–he must actually survive long enough to testify.
Pagliano is either about to destroy one of the most powerful women on the planet or enable her to BE the most powerful woman on the planet. I’m betting he will survive to testify which means Clinton will survive any real damage. FWIW.
bam bam, I was thinking the same thing.
Don’t be surprised if you read that Pagliano suddenly ends up dead–he won’t be the first to suffer such a fate, as there appears to be an unmistakable pattern, where those, who were previously associated with the Clintons and/or knowledgeable with regard to their various illegal shenanigans, end up swimming with the fishes. I can only hope and pray that the granting of immunity doesn’t act to place a target on this gentleman’s back, where we read about a tragic plane crash or an alleged suicide, where the bullet, mysteriously, entered the back of his head.
Damn you for sensibly diluting my hope that this would be a boon for justice, Olly.
Doesn’t all of this hypothetical bird song not matter anyway? Even if Mr. Pagliano is viewed as a fearless truth teller, and sells the story Olly has imagined…
The charges are still negligence. It doesn’t matter that she ‘thought’ she was getting a secure server. Negligence!!! That’s all that is necessary!
That is, IF, I have understood the intelligence community who comments on these things.
We have no idea what this guy will say. It’s highly unlikely that Hillary told some computer tech that she wanted him to build a server in order to evade the law. She probably just told him to build it, and let her know when it’s done. Presumably the State Dept., and all federal agencies, provides training to its employees instructing them to not use personal email for official business. On the other hand, there was an article in the Washington Times a few days ago that recounted how this provision is frequently ignored by high-level federal executives. The article said that Ashton Carter, as Secretary of Defense, used a private email account for DOD business. So did Lisa [?], Director of the EPA. And Colin Powell has stated that he did so as well. So maybe these agencies aren’t stressing the matter enough in their training, or they are not requiring the training for political appointees, only for civil service underlings.
An even more interesting aspect of the article was that H’s private email account was well-known all over Washington. She sent emails to members of Congress, the U.S. Supreme Court, the media (such as CNN’s Jeffery Toobin), and nobody noticed or cared that it wasn’t a “state.gov” official account. The article noted that Rep Darrell Issa grilled SOS John Kerry on this, and Kerry responded that he didn’t notice the non-official email account, and just responded to Clinton at the email address she provided. Which, BTW, I find somewhat hard to believe. I think all of these older folks in Washington just didn’t think the computer security thing was all that important, and frequently ignored it out of convenience and frustration of having to deal with government technical requirements, which are pretty clunky. My own federal agency’s multiple layers of security are not inter-connected and are annoying as Hell. If I could get away with it, I would bypass the whole damned system as well because it takes too much time to deal with.
In any case, this is certainly good news for Donald Trump. If the Obama administration is planning to torpedo Clinton with a last minute indictment, and substitute nutty Joe Biden, I think they are delusional. I would expect that all the voters who were hoping for the first female president will be angry and stay away from the polls. Many others will be completely disillusioned with Washington political gamesmanship and vote for Trump. A handful of yellow dog Democrats will vote for whichever candidate the party serves up, but party leaders should note that in this election cycle, blind obedience to the party is no longer holding much sway with voters.
The only way lying is successful is if others can be held up as trustworthy. Moving Pagliano from the ranks of the “liars” to a position of trustworthiness provides the liar a perceived ‘truthful adversary’ that will testify the liar is telling the truth. Public trust will be restored in the likes of Clinton and she will be held up as a paragon for public service.
One would have to be a fool to accept “use” immunity as only the exact words used in a grand jury hearing cannot be used against you. If he accepted “use” his lawyers are well overpaid and as big a fool as he. Anything revealed by one’s “exact words” can and will be used, against the fool that accepted “use” immunity. I was “offered” use immunity and refused. Went to jail until Justice William O. Douglas freed us. Unindicted co-conspirator, Gainesville 8 (+4) case. The jury was about 1 hour and 30 minutes, Most of which was for lunch. NOT GUILTY! and they came to our reunions. Semper Fi!
“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.”
No Question huh?
A private email is more vulnerable to interception than a government one?
Yeah right. No question. Highly reckless act huh?
Experts will testify otherwise. The government service at the time this happened was exposed and was suspect. Clinton did the right thing.
MoeLarryCheese – no expert is going to testify that the ‘home-brew’ Clinton server was more secure than the State Dept’s servers. When a guy puts the thing in his bathroom, that does not give me confidence that he knows what he is doing. It also seemed to go down periodically and people were required to use their State Dept accounts until it came up again.
“Charges of hypocrisy” never seems to deter the Clinton’s. She will skate. Although, Crazy Joe Biden showing up @ the Oscars may have been an omen.
Joe Biden was at the Oscars to prove that he can still stop traffic.
I am both pleased and surprised to see the DoJ involved. I rather expected they would let this die out. Do the Democrats have another candidate ready to jump in if Hillary is out?
The Donald will be the replacement democrat if he loses the republican nomination.
stevegroen – I suppose you can earn electoral votes from both parties to win. He could run from both parties. If they broker the Republican convention there is going to be hell to pay. 50% of the voters during Super Tuesday said they felt betrayed by the Republican Party.
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So Obama’s Justice Department has granted immunity to someone who’s “knowledge” will supposedly provide irrefutable proof of the motivation behind setting up the private email server. This is a brilliant strategy on behalf of Clinton and the Justice Department to destroy the perception the private server was intended to keep her email communications away from scrutiny and accountability.
Pagliano will now be perceived as an individual that has nothing to fear by telling the “truth” and he will testify “under oath” that Clinton ‘thought’ she was being provided a completely secure server capable of at least being equal to the State Department servers with regard to security if not better. She will be portrayed as an innocent public servant looking out for the national security interests of the United States but ultimately was betrayed by Pagliano’s incompetence.
Pagliano will be immune from prosecution and Clinton will have discovered yet another way to dodge accountability.
Or, Pagliano will suffer a massive stroke. Either way, case closed.
Olly, excellent point and it’s a reasonable one after all we’ve seen, but let’s hope for a different result.
It will be interesting when the bird starts singing to the feds. Maybe something like this?
US should pass a law permitting pre-emptive impeachment in the event the lady gets into the white house.
What’s not to dislike here? I hope Mr.Pagliano has the goods to remove her from her quest to be the first female president.
The reality is that Bill Clinton may just be back in the White House come January. Meanwhile, he’s partying at polling stations and Hillary is disavowing her support of the TPP as she did her vote to attack Fred Flintstone in Iraq.
The arrogance is astounding.
An ethics and integrity problem, a violation of the public trust, and decidedly not good government. This coming from the presidential candidate for the party of good government. And so it goes.
PS: Didn’t she as SOS remove Scott Gration as ambassador in part for using private emails?
It’s going to be a fun summer and autumn.
Every time I see that arrogant photo I continue to say the same thing. Nothing will happen to this broad, the political elite are above the law. If our laws were for all she would not even be able to run for office.