The Hillary Clinton campaign has another excuse for the private email server. I guess this means today is a day ending in ‘y.’

To bring you up to date. Right now we know that, at a minimum 188 emails existed on Hillary Clinton’s private (remember this term, it is important) email server. We know at least two of those emails contained information that originated with a Keyhole satellite operated by the National Reconnaissance Office and was classified at the Top Secret level. (see more here)

Things became more interesting on Thursday when it was revealed that a Hillary Clinton acolyte and a member of the criminal clique she brought into State with her, a guy named Bryan Pagliano, had pleaded the Fifth to a request to testify before [mc_name name=’Rep. Trey Gowdy (R-SC)’ chamber=’house’ mcid=’G000566′ ]’s Benghazi committee. Now taking the Fifth doesn’t mean he is guilty of anything, it just means he doesn’t want to incriminate himself. The interesting thing about Pagliano is that he was brought into State as a high grade, GS-15, political appointee and embedded in the State Department’s IT operation. (via Daily Caller)

This guy was a political hack. According to the Daily Caller:

He was assigned to the State Department’s Bureau of Information Resource Management, a highly classified system which manages the digital traffic of 50,000 U.S. diplomats and foreign service officers at the 250 U.S. embassies and consulates located around the world.

Prior to working for Hillary’s presidential campaign, Pagliano was a senior systems engineer at Community IT Innovators, a small IT firm that catered to non-profit organizations. The organization represented liberal advocacy groups, community services organizations, schools and NGO’s, according to its web site.

His undergrad degree was political science and he has an MBA from University of Maryland in “finance and technology” that was achieved by going part time (full-time program is 21 months). There was nothing at all in his education or experience that qualified him for the position he held other than being one of Hillary’s many catchfarts. But it appears that his primary job was running Hillary Clinton’s private server. There are a lot of problems with this, not the least of which is that it is illegal.

Hillary’s first line of defense on her server is that it is private. As such it belongs to her and she, and only she, gets to decide what everyone gets to see. The problem with that defense, if Pagliano, a State Department employee, was used to set up and maintain the system is that Clinton was diverting government resources to a private use. Essentially, what she did was no different from having Pagliano to mow her lawn or wash her car, jobs for which Pagliano was much more suited.

The New Defense

Now the Clinton camp has offered a new defense:

Hillary Rodham Clinton and her family personally paid a State Department staffer to maintain the private e-mail server she used while heading the agency, according to an official from Clinton’s presidential campaign.

The unusual arrangement helped Clinton retain personal control over the system that she used for her public and private duties and that has emerged as an issue for her campaign. But, according to the campaign official, it also ensured that taxpayer dollars were not spent on a private server that was shared by Clinton, her husband and their daughter as well as aides to the former president.

…

The private employment of Pagliano provides a new example of the ways that Clinton — who occupied a unique role as a Cabinet secretary who was also a former and potentially future presidential candidate — hired staff to work simultaneously for her in public and private capacities.

The Post tries to make it sound like Hillary was some kind of ground breaking personnel rules guru but, in fact, she engaged in a massive violation of federal ethics regulations. And, signifying that there is always plenty of room under the bus for people who cross Hillary, the Post ads this, which is confidential and can only have come from inside the Clinton camp:

Pagliano did not list the outside income in the required personal financial disclosures he filed each year.

Clinton-speak warning

The Clinton statement makes it sound like there was an ongoing arrangement between Clinton and Pagliano.  However, knowing the Clintons as we do, we have to be on the look out for parsing. The Post article says this before mentioning that Pagliano had not filed any other financial disclosure statements:

The Clintons paid Pagliano $5,000 for “computer services” prior to his joining the State Department, according to a financial disclosure form he filed in April 2009.

It could be that Hillary’s eventual explanation will be, ‘I never said I paid him after he came to State.’ And this is simply a ruse to put the dogs on Pagliano.

Pagliano was not a legal employee of Hillary Clinton

Let’s unpack this. First, there is no conceivable way that Hillary could have legally hired Pagliano to maintain her server. In order to legally provide this service, Pagliano would have to have been classified as a Special Government Employee.

As defined in 18 U.S.C. § 202, an SGE is an officer or employee who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days.

This was the arrangement that let Cheryl Mills cash checks from State and the Clinton Foundation and NYU and Huma Abedin Wiener to be paid by State and the Clinton Foundation and Teneo. The list of authorized SGEs from State demonstrates that Pagliano was not in that classification plus his salary info shows that he was employed for a full year, not the less than 130 days allowed by law.

If Clinton hired Pagliano, he could only have worked for her during non-duty hours or periods of leave. Even assuming this was the case, there is a bigger problem.

Ethics violations

Pagliano could not have legally accepted compensation for running Hillary’s server because his full time job was supporting State Department employees. Hillary used her ‘private’ server for government business (over half the emails harvested from that server were job related) and Pagliano’s work de facto was supporting her and Mills and Abedin and her other cronies. If he was getting paid by Clinton, then Pagliano was clearly being paid by the US Government and by Hillary Clinton for doing the same job. As the federal ethics regulation on Misuse of Position and Government Resources says:

An employee may not use his public office for his own private gain or for that of persons or organizations with which he is associated personally.

If Pagliano were paid, then he clearly used his position in State for personal gain because without that position he would not have been able to support Clinton’s private email system.

On the other hand, if it is true that Clinton paid him, then she was in violation of the same ethics rule:

An employee may not use the official time of another employee for anything other than official business.

If Pagliano were paid by Clinton then, by definition, that time was not spent on official business. And Pagliano continued to be paid by the Government while Clinton was using his services for decidedly private reasons.

With Clinton the violation was even more egregious because she was the head of the State Department and he would have found it very difficult to retain his high paid and very cushy job if he refused to perform the service.

Criminal conduct?

IANAL. But when one looks at the theory of ‘honest services fraud’ used by the federal government of public integrity cases, a good argument can be made that both Pagliano and Clinton violated criminal statutes. In both cases the services the US government had expected Pagliano to provide were diverted for the personal benefit of Clinton and the personal enrichment of Pagliano.

Summary

It would have been a violation of federal ethics regulations for Pagliano to accept money for maintaining Hillary’s private email server OR to maintain that server while a government employee.

It was an ethics violation for Clinton to use Pagliano to maintain her private server whether or not he was paid separately. Arguably, paying him was the worst decision.

Side show

This, of course, is all a side show. Both Clinton and Pagliano are now out of government and, to the best of my knowledge and belief, beyond any sanction for the ethics violations. Clinton could probably be liable for diversion of government resources to her private use but whether or not that is a criminal act, I don’t know.

The Real Issue

The real issue remains the classified material on Hillary’s computer. That issue has several components.

How did material classified Top Secret migrate from a Sensitive Compartmented Information Facility to an unsecured email system?

Who stripped the classification markings from classified material before sending it?

Why did Hillary Clinton write classified correspondence on her personal email system and not mark it as classified?

Did foreign entities penetrate her email system?

Did the folks who stored her server in a bathroom cabinet possess the security clearances necessary to be custodians of classified information?

Was her email server secured in a way that safeguarded classified information?

Did the people who reviewed her email for return to State have the requisite security clearances to see the emails they reviewed?