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.