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.
Deaths of certain Clinton business associates when they occupied the Arkansas State House:
Shotgun blast to the back of the head: determined to be a suicide
Three at once corralled into the back of a Starbucks and shot execution style: no robbery occurred
Nail gun: suicide
Vince Foster: suicide
The black guy, forgot his name, IIRC once head of the Democratic Party: strange plane crash in a 3rd world country
Etc, etc, etc, etc…………….
The CIA has a heart attack weapon now.
Not to mention the personality assassinations, a Clinton trademark: calling Bill’s young federal employee/20 year old felatio friend a “deranged stalker,” etc. Bill and Jim Lehrer both call each other “friend.” Loved Bill wagging his finger at the world while Bill talked to his “friend” Lehrer: “I did NOT have sex w/THAT WOMAN.”
Squeeky – your the best!
@PaulCS
I am trying to do a Hillary-Cleopatra pic. Re: ” Ol’ Crusty” , did Cleopatra ever wear pantsuits???
🙂
Squeeky Fromm
Girl Reporter
Squeeky – Cleopatra and all Egyptian women wore sheath type dresses. Some with or without straps. Some ending above or below the breasts. Depends on the period. NO PANTS
Gary T
You got that right. His attorney likely obtained a queen for a day letter, made the proffer, and then received formal immunity. But until you know what song he is singing when he sings, it is premature to speculate on who might become a target as the result of his testimony. There could be some surprises in that regard. I would not bet against surprises.
Like most others, I’m cynical about the likely ultimate result if DOJ believes that Clinton committed a crime.. The Petraeus deal was a fabulous deal from a defense standpoint, not so much from a standpoint of horizontal equity in the enforcement of the law. I can’t imagine that, if she is convicted as the result of a plea, that she would be treated any worse than Petraeus.
@vietvet
I am betting that instead of murder, you see the “Pagliano’s grandfather was a REPUBLICAN!!!, and his great-great grandfather owned slaves!!! Sooo, this is all a vast rightwing, white supremacy conspiracy!!!”, type excuse.
Squeeky Fromm
Girl Reporter
Squeeky – if I were Pagliano, I would wrap myself in bubble-wrap and get put in witness protection.
Pagliano could “accidentally wrap his car around a light pole.”
Terry – I love humor, excellent absolutely excellt. Good for you, to bad you couldn’t photo shop her arrogant face on Cleo.
Olly – Great Cold War movie, watched it just about 2 weeks ago have it saved. A must see Black and White movie.
As far as this Pagliano death thing goes, I say he “accidentally” zaps himself while placing a server in a bathtub full of water, any takers:).
VietVet – my money is on the umbrella with poison in the tip. Jabbed while walking down the street. Dies before he testifies.
Behold!
Hillary Clinton, president of U.S.A. Bow down to the queen.
I’ve read a lot of statements from Clinton supporters essentially stating she is the better evil. It’s that sort of utilitarian approach to governance that gives us BOTH evils. Anyone that believes this approach is good for a constitutional republic has no standing to complain when “the other side” does it.
Olly writes, “I’ve read a lot of statements from Clinton supporters essentially stating she is the better evil. It’s that sort of utilitarian approach to governance that gives us BOTH evils. Anyone that believes this approach is good for a constitutional republic has no standing to complain when ‘the other side’ does it.”
Hear! Hear!
Should email ever be used for secret or sensitive information? There is ample evidence that even the best security system currently can’t protect electronic communications. Hand-delivery by human couriers or in-person communication would be the most secure means available if it were truly secret or sensitive information.
Recently all federal employees (and their non-governmental spouses) had their private information hacked – including federal law enforcement and intelligence agencies. The OPM recently notified thousands of government employees and their spouses of this security breach.
Also if electronic communications can be hacked this easily, even at the State Department, could a prosecutor prove Clinton was the one that actually sent the email in the first place – can we prove it was really her or was it a Chinese hacker? A prosecutor has to prove it was her.
If it’s really top secret don’t use email in the first place!
Whatever secure system Hilary was supposed to be using, that system should be available to everyone to use. Why should the communications of corrupt incompetent government officials be more secret or private than the communications of the rest of us?
This truly does look ominous.
They don’t just hand out immunities like candy.
It is only when they’ve made the probabilistic calculus that throwing this small fish back into the water, in order to catch the big fish, that they do this.
Well, Pagliano’s a goner.
@KarenS
I’m with you. Stupid to even speculate that Her Highness didn’t know what she was doing was CRIMINALLY wrong. She keeps trying to pass it off as “Oh, I just had a separate email account” but the lying wh*re had a whole damn ‘nother friggin offsite computer/machine she was running the stuff through.
Can you imagine some little fresh-faced 20-something chick getting hired by the State Department, and on her first day she asks if it’s OK if she skips the whole dot.gov thingy and just uses her ecstasychick1984@yahoo.com account??? Oh, and can she use her own computer at home to route her communications through, because that’s where all her pictures are???
Yeah, that would last about 2 seconds. The Democratic Party shills are laughable.
This is why I stopped supporting Hillary and there ain’t no way she is innocent. Lock her up for a year or so with some of her “firewall” gulfrends.
Squeeky Fromm
Girl Reporter
She uploaded the most sensitive classified information category that there is to the Cloud!! Her cleaning crew and everyone she ever invited over to party had access to that server. The techies at her data backup service had access to the information.
Is it a question about whether she broke the law?
Why do people look the other way when their own political Gods break the law, and then complain about the lawlessness and special interest groups in DC? It is the height of hypocrisy to excoriate the influence of the Koch brothers in Washington. Every party is for sale, and if you’ve got enough followers, apparently you’re above the law.
If you don’t like it, then do something about it. Demand our politicians and officials be held to the same standard that the rest of us are.
“In fairness to Clinton, there remains the question of intent and whether she knew or should have known of any violations.”
I disagree with you on this point. Intent to commit espionage, or any other crime, is not required to prosecute the mishandling of classified information.
Take these two cases: In one, a Marine used his gmail account to notify superiors that a known Al Qaeda operative was on base. He broke the rules to save lives, and yet he was prosecuted. In another, a sailor sent a selfie taken onboard his sub to his girlfriend. He was prosecuted because the sonar screen was visible in the background, which revealed where they were.
If it was anyone else, without the name of “Clinton”, they would already be in jail. However, she is so highly placed that I have very little faith that the law will be applied to her. They will let her weasel out of it. It has been clearly demonstrated that her followers will ignore her lies, hiding Whitewater files with only her fingerprints and her secretary’s, breaking the law…heck, she’s on tape laughing about volunteering to get a pedophile off, and that did not dissuade them. All it takes is for such true believers to work at the DOJ or the FBI for the Teflon Queen to get off, yet again. My father had great respect for the FBI, CIA, and NSA. He always said these people did the job, regardless of politics. But I think times may have changed.
We’ll see. If a marine can be charged and prosecuted for using private email to warn of an imminent terrorist attack, but she gets off for using a private email server to send SAP HUMINT, directs staff to cut off Classified headings on docs to send over unsecured faxes, lies about it, and then wipes the server clean in an effort to cover her tracks, then we’ll have our answer. We will have a ruling, lawless government class. We’re not much of a democracy if our laws do not apply to government officials.
Even if the President decides to grant her a full pardon, for old time’s sake, they at least need to recognize that she broke the law.
What are we going to do if she gets elected President, but she is deemed by the intelligence community to be incapable of handling classified information?
Nothing ominous at all. It’s all smoke and mirrors. Hillary Clinton is UNTOUCHABLE. She’s been a loyal servant of the NWO ruling elite and they want her as president (though they’d be just as happy with Cruz or Rubio, who are also dedicated servants and follow their orders). Furthermore, Clinton has the GOODS on many of her political opponents and they know that if she goes down, THEY go down too. So it’s a stalemate. Like I said, she’s untouchable.
Ralph writes, “Nothing ominous at all. It’s all smoke and mirrors. Hillary Clinton is UNTOUCHABLE. She’s been a loyal servant of the NWO ruling elite and they want her as president (though they’d be just as happy with Cruz or Rubio, who are also dedicated servants and follow their orders). Furthermore, Clinton has the GOODS on many of her political opponents and they know that if she goes down, THEY go down too. So it’s a stalemate. Like I said, she’s untouchable.”
I pretty much agree with everything you’ve stated except your conclusion. 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 exposed now to be trawling for leg in public.
The DOJ has no credibility at all until it prosecutes torture and cruel & unusual punishment under binding international treaties.
American citizens that were tortured or assassinated on U.S. soil or abroad can also be prosecuted with existing federal statutes.
The DOJ was actually actively complicit in the torture program and DOJ attorneys approved of these war crimes at the highest levels. Not a single DOJ attorney has been disbarred and only lower level subordinates have been prosecuted for Abu Ghiraub style torture.
Instead the DOJ has prosecuted legal whistleblowers that exposed war crimes and they destroyed the World War Two legal precedent of the “Nuremberg Defense” created by Justice Robert Jackson – which denied Nazi prison guards immunity for following orders from superiors.
The DOJ has no integrity or credibility until they start enforcing federal laws and international torture treaties. John Ashcroft should also be indicted for his felony abuse of the federal “Material Witness Statute” used to torture and punish innocent American citizens on U.S. soil.
Bam,
That’s why I said:
“Or, Pagliano will suffer a massive stroke. Either way, case closed.”