What Pagliano’s Immunity Deal in the Clinton Email Scandal Reveals

The revelation that former Clinton aide Bryan Pagliano was given immunity by the Justice Department in the former Secretary of State’s email scandal has led to a kaleidoscopic array of interpretations, a true Rashomon moment.   Democrats see the granting of immunity of the last step in a process of clearing the Clinton of wrongdoing.  Some conservative commentators see the immunity grant as proof that a federal grand jury has been convened with dire consequences for the putative Democrat presidential nominee.  It is impossible to say for sure which interpretation is true, but an objective legal view suggests that this development is more likely to bode ill for Clinton than be the first step of her exoneration. 

Democrats are predictably desperate to put the best face on this latest development.  New York Congressman Charles Rangel was fast out of the blocks to claim that Clinton would never be indicted (firing perhaps a shot over the bow of the Justice Department) declaring “There’s been no grand jury that’s been there [sic].”  On the other hand on FOX commentator and former judge Andrew Napolitano claimed that “Only a federal judge can grant immunity.  A federal judge will only grant immunity if a sitting jury is ready to hear testimony from the immunized person.”  I respect judge Napolitano, but neither he nor Rangel is correct.

I was actually inclined to write a piece along the lines of what Napolitano said because as a former federal lawyer (I was an Army prosecutor) it is natural to assume that a grant of immunity presumes the presence of a grand jury.  That’s the way it happens most of the time.  However, federal statutes provide otherwise, allowing grants of immunity not only for grand juries, but also for federal agencies (like the FBI) and Congress.  So the mere fact that Pagliano got immunity does not mean that there is a grand jury seated.      

For all the time and energy we spend reading tea leaves over the very important question of whether the probable candidate of one of the nation’s two parties is a reckless criminal, we can thank the suspect herself, Hillary Clinton, who like her husband, draws attention, controversy and stink of scandal wherever she goes.  But we can’t escape these questions, and determining as best as we can what the FBI’s investigation portends is both necessary and compelling. So leaving aside the extremes bruited by Congressman Rangel and Judge Napolitano, what might we really determine from Pagliano’s immunity grant?

First off, it’s a fairly safe bet that Napolitano is closer to the truth than Rangel, although many wishful thinkers on the Democrat side try to convince otherwise.  Writing in Forbes, Charles Tiefer posits that because Pagliano was not offered a plea deal in return for immunity, there no grand jury, and with no charges pending against the IT guy, the same must be true for Hillary.  This is a plausible supposition, but the mere fact that Pagliano was not forced into a plea deal doesn’t mean Hillary is out of the woods.  The Washington Post takes this line as well, selectively quoting “experts” who dismiss the idea that Pagliano has flipped, as opposed to agents just making sure that they’ve talked with all the relevant witnesses.   At the other end of the liberal spectrum is this piece from the Huffington Post that claims Pagliano’s immunity deal means Hillary’s goose is cooked, and that Bernie Sanders will be the Democrat nominee.  This is more about feeling the Bern than cogent legal analysis. 

Meanwhile over at Commentary they assume that whatever the meaning of Pagliano’s immunity deal, Attorney General Loretta Lynch (and her boss) will never permit an indictment, and that Lynch’s recent slippery interview on FOX is just part of a slow walk to nowhere, designed to outlast the election cycle.   This is a realistic though cynical view based on the Obama administration’s past inaction on numerous other scandals, ranging from the IRS to Fast and Furious.

But for those that hope the justice system might still work, that the FBI and its Director may be trying to do the right thing, and that regardless of what Lynch ultimately does, the evidence will undo Clinton, there is still arguably some good news in the Pagliano tale.   

While I tend to believe that a grand jury has not yet been convened, a grant of immunity in any federal case is a pretty big matzo ball and not given out lightly.  The question of immunity is only relevant where criminal activity is afoot, and given only when a witness’s testimony can incriminate other people.  Such grants can be utilized as fishing expeditions by prosecutors, but they are not supposed to be, and in a closely watched case like this one, it is highly unlikely.  So Pagliano’s immunity is almost certainly connected to what the FBI considers real criminal wrongdoing by bigger fish -- at a minimum Clinton’s personal aides and likely the former Secretary of State herself. 

Even more compelling is the fact that Pagliano’s testimony is not necessary to prove the basic case against Clinton for violating either federal record laws, or those pertaining to handling classified material.  In either case the evidence already on the record is sufficient to secure convictions on multiple counts on the basis of gross negligence.  But politically, mere negligence is perhaps not sufficient to support a prosecution -- thus Clinton’s legally irrelevant and untrue but persistent statements that she never sent any emails marked classified at the time.  Pagliano’s testimony might well show conscious intent on Clinton’s part, which while not technically necessary to the case against her, makes it stronger, and thus more politically persuasive. 

Finally, the most damaging potential testimony that Pagliano might offer, and perhaps the reason it has taken this long to do an immunity deal, is that he offers the FBI a chance to make a case on the basis of obstruction of justice and conspiracy.  Pagliano is usually described as the IT guy that set up Clinton’s private server (which is true) but as a State Department employee he did double duty for Clinton and the government between 2009 and 2013.  Thus he was not only around to set up the private server, but to delete emails from it when Clinton left office, and possibly prepare it for shipment to Platte River, the company Clinton eventually contracted with to store the device.  I’ve long believed that the key to a successful prosecution of Clinton is pairing evidence of obstruction of justice with the classified documents and federal records violations.  Evidence of obstruction, means evidence of direct intent and a guilty mind, that cannot be sloughed off mere carelessness, honest mistake, or the foibles of various underlings.

The FBI has reportedly recovered many if not most of the emails from the server. If these were truly innocuous accounts of yoga routines and wedding plans, it is likely that the FBI’s interest in Pagliano would have waned.  Instead, his grant of immunity seems to coincide with the presumed recovery of these files, which suggest that they were not innocuous, and that he might well be able to shed light on how and why they were deleted.  If that is the case, it is only a matter of time before Loretta Lynch might be compelled to seat a grand jury, regardless of the political consequences.  

The revelation that former Clinton aide Bryan Pagliano was given immunity by the Justice Department in the former Secretary of State’s email scandal has led to a kaleidoscopic array of interpretations, a true Rashomon moment.   Democrats see the granting of immunity of the last step in a process of clearing the Clinton of wrongdoing.  Some conservative commentators see the immunity grant as proof that a federal grand jury has been convened with dire consequences for the putative Democrat presidential nominee.  It is impossible to say for sure which interpretation is true, but an objective legal view suggests that this development is more likely to bode ill for Clinton than be the first step of her exoneration. 

Democrats are predictably desperate to put the best face on this latest development.  New York Congressman Charles Rangel was fast out of the blocks to claim that Clinton would never be indicted (firing perhaps a shot over the bow of the Justice Department) declaring “There’s been no grand jury that’s been there [sic].”  On the other hand on FOX commentator and former judge Andrew Napolitano claimed that “Only a federal judge can grant immunity.  A federal judge will only grant immunity if a sitting jury is ready to hear testimony from the immunized person.”  I respect judge Napolitano, but neither he nor Rangel is correct.

I was actually inclined to write a piece along the lines of what Napolitano said because as a former federal lawyer (I was an Army prosecutor) it is natural to assume that a grant of immunity presumes the presence of a grand jury.  That’s the way it happens most of the time.  However, federal statutes provide otherwise, allowing grants of immunity not only for grand juries, but also for federal agencies (like the FBI) and Congress.  So the mere fact that Pagliano got immunity does not mean that there is a grand jury seated.      

For all the time and energy we spend reading tea leaves over the very important question of whether the probable candidate of one of the nation’s two parties is a reckless criminal, we can thank the suspect herself, Hillary Clinton, who like her husband, draws attention, controversy and stink of scandal wherever she goes.  But we can’t escape these questions, and determining as best as we can what the FBI’s investigation portends is both necessary and compelling. So leaving aside the extremes bruited by Congressman Rangel and Judge Napolitano, what might we really determine from Pagliano’s immunity grant?

First off, it’s a fairly safe bet that Napolitano is closer to the truth than Rangel, although many wishful thinkers on the Democrat side try to convince otherwise.  Writing in Forbes, Charles Tiefer posits that because Pagliano was not offered a plea deal in return for immunity, there no grand jury, and with no charges pending against the IT guy, the same must be true for Hillary.  This is a plausible supposition, but the mere fact that Pagliano was not forced into a plea deal doesn’t mean Hillary is out of the woods.  The Washington Post takes this line as well, selectively quoting “experts” who dismiss the idea that Pagliano has flipped, as opposed to agents just making sure that they’ve talked with all the relevant witnesses.   At the other end of the liberal spectrum is this piece from the Huffington Post that claims Pagliano’s immunity deal means Hillary’s goose is cooked, and that Bernie Sanders will be the Democrat nominee.  This is more about feeling the Bern than cogent legal analysis. 

Meanwhile over at Commentary they assume that whatever the meaning of Pagliano’s immunity deal, Attorney General Loretta Lynch (and her boss) will never permit an indictment, and that Lynch’s recent slippery interview on FOX is just part of a slow walk to nowhere, designed to outlast the election cycle.   This is a realistic though cynical view based on the Obama administration’s past inaction on numerous other scandals, ranging from the IRS to Fast and Furious.

But for those that hope the justice system might still work, that the FBI and its Director may be trying to do the right thing, and that regardless of what Lynch ultimately does, the evidence will undo Clinton, there is still arguably some good news in the Pagliano tale.   

While I tend to believe that a grand jury has not yet been convened, a grant of immunity in any federal case is a pretty big matzo ball and not given out lightly.  The question of immunity is only relevant where criminal activity is afoot, and given only when a witness’s testimony can incriminate other people.  Such grants can be utilized as fishing expeditions by prosecutors, but they are not supposed to be, and in a closely watched case like this one, it is highly unlikely.  So Pagliano’s immunity is almost certainly connected to what the FBI considers real criminal wrongdoing by bigger fish -- at a minimum Clinton’s personal aides and likely the former Secretary of State herself. 

Even more compelling is the fact that Pagliano’s testimony is not necessary to prove the basic case against Clinton for violating either federal record laws, or those pertaining to handling classified material.  In either case the evidence already on the record is sufficient to secure convictions on multiple counts on the basis of gross negligence.  But politically, mere negligence is perhaps not sufficient to support a prosecution -- thus Clinton’s legally irrelevant and untrue but persistent statements that she never sent any emails marked classified at the time.  Pagliano’s testimony might well show conscious intent on Clinton’s part, which while not technically necessary to the case against her, makes it stronger, and thus more politically persuasive. 

Finally, the most damaging potential testimony that Pagliano might offer, and perhaps the reason it has taken this long to do an immunity deal, is that he offers the FBI a chance to make a case on the basis of obstruction of justice and conspiracy.  Pagliano is usually described as the IT guy that set up Clinton’s private server (which is true) but as a State Department employee he did double duty for Clinton and the government between 2009 and 2013.  Thus he was not only around to set up the private server, but to delete emails from it when Clinton left office, and possibly prepare it for shipment to Platte River, the company Clinton eventually contracted with to store the device.  I’ve long believed that the key to a successful prosecution of Clinton is pairing evidence of obstruction of justice with the classified documents and federal records violations.  Evidence of obstruction, means evidence of direct intent and a guilty mind, that cannot be sloughed off mere carelessness, honest mistake, or the foibles of various underlings.

The FBI has reportedly recovered many if not most of the emails from the server. If these were truly innocuous accounts of yoga routines and wedding plans, it is likely that the FBI’s interest in Pagliano would have waned.  Instead, his grant of immunity seems to coincide with the presumed recovery of these files, which suggest that they were not innocuous, and that he might well be able to shed light on how and why they were deleted.  If that is the case, it is only a matter of time before Loretta Lynch might be compelled to seat a grand jury, regardless of the political consequences.