The Washington Post reports that Bryan Pagliano, the former State Department staffer who may have set up and maintained Hillary Clinton’s “homebrew” server, has been “granted immunity” by the Justice Department. The Post describes its source as a single, senior law-enforcement official — though I assume the paper corroborated its source before running with the story (which Politico elaborates on).
This important development raises a question we have considered before: Is there an active grand-jury investigation of Mrs. Clinton and her aides over their mishandling of classified information? The question is critical because (with exceptions not relevant to this discussion) the convening of a grand jury is a necessary precondition to the filing of a felony indictment. And the answer to the question is . . . probably, though not necessarily.
Expressly relying on his Fifth Amendment privilege against self-incrimination, Pagliano previously refused to testify before the House Benghazi Committee. Giving a witness immunity extinguishes that privilege, enabling the government to compel the witness’s testimony. There are two forms of witness immunity that commonly arise in federal criminal investigations: (1) the proffer agreement, which prosecutors and defense lawyers commonly call a “queen for a day” letter; and (2) statutory immunity.
Statutory immunity, by contrast, is conferred by a federal court based on an application by prosecutors, usually from a district U.S. attorney’s office. The application must be approved by Justice Department headquarters in Washington (Main Justice) before submission to the judge. Statutory immunity is a more sweeping form of protection: Neither the statements made by the witness nor any evidence derived from those statements may be used against the witness.
For present purposes, the most significant difference between the two forms of immunity is that only statutory immunity necessarily signals that a grand jury investigation is ongoing. A proffer agreement, to the contrary, signals that a grand jury may have been convened or probably will be soon, but does not necessarily mean this is the case.
To be more specific, in order to obtain an order from the court granting statutory immunity, federal law requires the prosecutor to represent to the court that the witness has been or may be called to testify or provide other information to the grand jury (or some related court proceeding, usually the trial that follows the grand jury’s indictment). Statutory immunity is not granted in circumstances where the FBI just wants to have an informal chat with a potential witness; it arises in the context of a grand jury investigation or a criminal trial.
A grant of immunity is a powerful indication either that there is an active grand-jury investigation or that such an investigation is imminent.
There is no requirement that there be a grand-jury investigation underway in order for the prosecutor to give a witness (and the witness’s lawyer) a “queen for a day” letter. Nevertheless, the whole point of this letter is to set up an interview of the witness by the FBI and the prosecutor. In that interview, the government hopes to find out (a) what the witness knows, (b) what other conspirators the witness is in a position to provide testimony about, and (c) whether it is worth signing a formal cooperation agreement with the witness. If a cooperation agreement is signed, the witness is permitted to plead guilty to one or more offenses he has committed in exchange for his cooperation and testimony in cases involving other participants in the criminal transaction. Obviously, the idea is to cut a deal with the less culpable player in order to make the case against the more culpable player(s).
This is a roundabout way to saying that a proffer agreement signals that an active grand-jury investigation may well be underway, and if it is not yet underway, it soon will be. Proffer agreements are done to figure out who should be charged in a case, and with what offenses. A grand jury is constitutionally necessary for the filing of an indictment that charges named defendants in these offenses.The Post says of the investigation into Mrs. Clinton’s mishandling of classified information, “there is no indication that prosecutors have convened a grand jury . . . to subpoena testimony or documents, which would require the participation of a U.S. attorney’s office.” (Emphasis added.) This is doubly wrong. As explained above, a grant of immunity — whether statutory immunity or a proffer agreement — is a powerful indication either that there is an active grand-jury investigation or that such an investigation is imminent. In addition, it is not required that there be a district U.S. attorney’s office involved before a grand jury may be convened. Main Justice has trial lawyers who theoretically could run a grand-jury investigation without the participation of a district U.S. attorney.
All that said, it would be highly unusual for main Justice to investigate a case that way. If the Post is correct that Pagliano has been given some form of immunity, then I believe that there is a grand-jury investigation and that it is being run by a district U.S. attorney’s office (working closely with the FBI).
— Andrew C. McCarthy is as senior policy fellow at the National Review Institute and a contributing editor of National Review.