I recently discussed the questions raised over the Justice Department giving the two former aides to Hillary Clinton immunity — and thereby removing any serious threat of prosecution while seeking information on their superiors. As part of that discussion, I posed the question of whether these previously immunized witnesses would defy Congress. That confrontation appears to be brewing after the former State Department IT specialist who set up Hillary Clinton’s private server Bryan Pagliano simply ignored a subpoena to appear this week before the United States House Committee on Oversight and Government Reform. Ironically, I will be testifying this morning on the congressional authority to enforce subpoenas in the House of Representatives. House oversight committee Chairman Jason Chaffetz (right) will now have to decide whether to move to hold Pagliano and other defiant former Clinton aides in contempt for refusing to appear or respond to the Committee.
Other former aides have indicated that they will invoke their Fifth Amendment protections against self-incrimination. Notably, Pagliano did not do so.
Chaffetz noted that the Committee has a “full range of options” to deal with Pagliano and he is correct. Pagliano could have invoked the Fifth Amendment but chose to disobey a subpoena to appear. Moreover he could have appeared and invoked his earlier immunity deal with the Justice Department.
Two officials from Platte River Networks — Bill Thornton and Paul Combetta — did comply and appeared but invoked their right to remain silent. Both read the same standard line: “On the advice of counsel, I respectfully decline to answer and assert my Fifth Amendment constitutional privilege.” Combetta did so five times and Thornton did so four times. They were then excused.
Pagliano’s attorney did send a letter to the committee that he will continue to assert his right not to testify but that should have been done in person. Moreover, his immunity deal requires him to cooperate with other parts of the U.S. government. The last time I checked the Congress was still part of the U.S. government.
2 U.S. Code § 192 provides, in part:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before … any committee of either House of Congress, willfully makes default … shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
The Committee would have to vote and refer the matter to the full House. However, the matter would end up back in the hands of the Justice Department which has a long history of blocking congressional contempt sanctions in both the Bush and Obama Administrations. (as I have discussed in prior testimony:here and here and here). The rule is below:
2 U.S. Code § 194 provides, in part:
Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required … and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with … the Speaker of the House, it shall be the duty of the said … Speaker of the House … to certify, and he shall so certify, the statement of facts aforesaid under the seal of … the House … to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.