Judge to Pagliano: Show me the immunity

Could there be public fireworks coming in Hillary Clinton’s e-mail scandal? While the FBI investigation into her use of a secret e-mail system continues in necessary public silence, Judicial Watch and a federal court have proceeded in contesting potential violations of the Freedom of Information Act by State stemming from the hidden communications. The latter civil action has mostly unfolded in parallel to the FBI’s criminal investigation, but those streams may cross.

The computer technician who set up and maintained the secret server, Bryan Pagliano, planned to invoke the Fifth Amendment in the civil case to avoid testifying. However, the judge threw a potential wrench into the works — and may end up forcing Pagliano to testify in public about the information he’s been telling the FBI in private:

A federal judge has ordered a former State Department IT expert to hand over the immunity agreement he has reportedly reached with the Justice Department as part of the investigation connected to Hillary Clinton’s private email server.

The order late on Friday afternoon postpones Bryan Pagliano’s deposition with conservative watchdog organization Judicial Watch until further notice. The interview had been scheduled to take place on Monday.

Pagliano’s lawyers have said that he had been planning to assert his Fifth Amendment rights against self-incrimination.

But on Friday, Judge Emmet Sullivan declared that Pagliano’s lawyers need to file a legal memorandum outlining the legal authority for him to claim plead the Fifth, “including requisite details pertaining to the scope of Mr. Pagliano’s reported immunity agreement with the government.”

Put simply, the Fifth Amendment can only be used when there is a risk of self-incrimination for a prosecutable criminal offense. It doesn’t apply in a civil case unless the testimony in the civil case could also result in criminal prosecution. Pagliano and his attorneys wanted to make the case that his testimony in the civil action brought by Judicial Watch could end up as evidence in a criminal trial against Pagliano … which tells us that there is something besides smoke in the e-mail scandal.

The problem for Pagliano is that the Department of Justice has already granted him a form of immunity to get his testimony on the scandal. A grant of immunity usually negates Fifth Amendment claims, depending on the scope of the immunity [see update below]. Transactional immunity is a complete Get Out of Jail Free card, which means there is no risk at all of prosecution, and so the Fifth is mooted and the witness has to testify or face contempt charges that could keep him in prison for a long time. Use and derivative use immunity is more limited, but it still keeps the testimony and any evidence derived from it from being used in a prosecution.

In some states, a court can only compel testimony in a broad application with transactional immunity. The bad news for Pagliano is that, in federal court, either type of immunity is sufficient to compel testimony, as the Supreme Court ruled in Kastigar. If the DoJ restricted the grant of immunity to specific points, then that might enter into a ruling on a Fifth Amendment claim, which is likely why the judge demanded to see the agreement rather than just ordering Pagliano to submit to the deposition. It’s still doubtful that a Fifth Amendment claim will work, however, since the lawsuit is essentially focusing on issues that are within the scope of the FBI probe.

Either way, this should be fun. Pagliano’s immunity grant will become part of the public record, which may reveal what Pagliano had to give investigators that was worth granting him immunity in the first place. And if Pagliano is forced to answer questions in the deposition, that information will get released almost immediately, which would reveal precisely what Pagliano told investigators. If that’s the case, it might force the FBI to wrap up its probe more quickly — and that would benefit everyone … except those who may end up on the wrong end of a criminal referral.

Update: This misses one step, as a Twitter follower pointed out:


I skipped over this because I was thinking in the context of Pagliano’s position, where there is clearly some criminal jeopardy in the FBI probe, but that’s true (if the invocation of the Fifth is challenged, which it is in this case). Even more, the need for Pagliano to prove criminal jeopardy means they have to argue that there are grounds for prosecution in the email scandal. That should be fun to watch, too.