Last week the manager of Hillary Clinton’s private email server, the one designed to hide her yoga schedule from America and give our most closely guarded secrets to the Russians and ChiComs, asked the federal judge overseeing Judicial Watch’s lawsuit over the State Department’s response to its FOIA requests to not be deposed by Judical Watch attorneys. The reason: Pagliano had received an immunity agreement from Justice and intended to take the Fifth. The judge demanded to see the immunity agreement, presumably to figure out how a guy with immunity could possibly incriminate himself.
The response is out. And its implications are interesting.
In an accompanying filing, they explained that Pagliano entered into “use and derivative use” agreements with the Justice Department shortly after approaching it in December 2015 with a proposal to give testimony.
The agreements do not give Pagliano blanket immunity in what The Washington Post reported in March was part of an ongoing FBI criminal investigation into the possible mishandling of classified information related to Clinton’s email setup while she was secretary from 2009 to 2013. Instead, such deals typically prohibit prosecutors from using evidence against a witness developed from his own testimony — but not evidence obtained independently.
“The DOJ has not authorized a grant of immunity for Mr. Pagliano in connection with any other matter, including this civil case,” Pagliano’s attorneys said, adding that “the U.S. Government counsel responsible for the investigation” — which they did not otherwise describe — consented to releasing the agreement under seal.
Pagliano’s attorneys Tuesday said case law establishes such a right for people not named in civil lawsuits but who face a “reasonable fear of prosecution.”
“Mr. Pagliano’s prospective deposition will inevitably cover matters that might ‘furnish a link in the chain of evidence needed to prosecute,’ ” they wrote, adding that “it is not ‘fanciful’ to conclude that those matters could fall within the scope of an ongoing (or possible future) criminal investigation of the same or a similar subject matter.”
1. Pagliano is in grave legal jeopardy and is probably facing indictment. The statements imply that Pagliano is under investigation and that his jeopardy would arise from filling in missing pieces in the FBI’s existing case against him.
2. Pagliano is trying to save Clinton’s campaign. He has “use immunity” which means that anything he coughs up during the depostion can’t be used against him, directly or as a means of creating the same information via another method. If you are old enough to remember the Iran Contra investigation you will recall the term “Fifth Amendment bath.” Oliver North was given use immunity and, guided by a brilliant defense attorney, Brendan “I’m not a potted plant” Sullivan, North ranged far afield and talked about anything that could possibly endanger his future liberty. North was tried and convicted on three felonies but the convictions were overturned on appeal because the court determined there was no way his public testimony could not have tainted the proceedings. Pagliano is in a similar position here because Hillary Clinton is running for president and you can be sure his testimony is going to be widely distributed. So, in matter of fact, Pagliano’s best play is to take the Fifth on areas where he knows the FBI is looking at him and to spill his guts on everything else and head off any further prosecution.
His decision to take a blanket plea of self-incrimination is really designed to stymie Judicial Watch and thereby keep Hillary Clinton from embarrassment and allow Justice much more freedom in deciding how to treat her case than would be possible if all the information were public.