We previously discussed the controversy over the FBI granting immunity to former State Department staffer, Bryan Pagliano, who set up a server in Mrs. Clinton’s home in Chappaqua, N.Y., and worked for her at the State Department. 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. The granting of immunity removed the threat for his cooperation, a leverage often used to implication others who may be higher up in the chain of command. Now, as the record appears to confirm that email records were knowingly destroyed after the issuing of a congressional subpoena to preserve such record, it also appears that the Justice Department gave immunity to the other person most at risk of a criminal charge — and the person some are likely to argue would have been the most likely to be able to implicate others. He is computer specialist, Paul Combetta.
The Clinton campaign is now putting all blame of Combetta, who of course is now beyond the reach of prosecutors and pressure. Brian Fallon, a spokesman for Mrs. Clinton’s presidential campaign, said that Combetta, who worked for a Colorado company called Platte River Networks, acted alone and “neither Hillary Clinton nor her attorneys had knowledge of the Platte River Network employee’s actions. It appears he acted on his own and against guidance given by both Clinton’s and Platte River’s attorneys to retain all data in compliance with a congressional preservation request.”
Many are likely to view this defense with suspicion as a constructed scapegoat. Having given immunity to both of the most likely targets for indictment, both specialists are the perfect fire walls for anyone who had knowledge or failed to move to preserve the material. In fairness to the Clinton camp, the account of the FBI could support a claim that the specialist realized on his own that the final record had not been scrubbed and took this action unilaterally in what is described as an “Oh Shit” moment. Indeed, that conversation with unnamed Clinton aides could be exonerating rather than incriminating if they stressed that all records should be preserved. Most investigators however would be curious why a contractor, if expressly told by a client to preserve any emails, would unilaterally destroy them.
What is particularly interesting is that Combetta reportedly changed his testimony on critical elements but ultimately acknowledged knowing about the subpoena. Combetta reportedly told the bureau in February that he did not recall deleting the emails, but then changed that account in May. He added to speaking with unidentified Clinton aides in March 2015 and then decided on his own to use BleachBit to delete the messages. While he denied knowing about the preservation order in February, he reversed that critical fact in May and said that “he was aware of the existence of the preservation request and the fact that it meant he should not disturb Clinton’s email data” on the Platte River server.
Some might argue that the Justice Department would most likely move to charge him and then offer a plea bargain if he could implicated others and remember names like those on the telephone call. Instead he was given immunity.
The House appears to be moving to seek his testimony and he may not be out of the legal woods. Witnesses are generally given “use and derivative use” immunity rather than the broader form of transactional immunity. If so, Combetta would be protected from the use of his statements or any evidence derived from those statements against him. If testifying in Congress, he would face the risk of perjury as well as other collateral crimes. It would create a messy situation with a previously immunized witness. Generally, the prior grant of immunity does not roll over to separate investigations by another branch, though he would remain protected from the use of his statements in the prior proceedings. Thus, he could carefully repeat those answers and try to stay within the scope of his prior statements. If he does not want to risk the uncertainty, he could invoke his privilege against self-incrimination and refuse to testify absent a granting of immunity from Congress.