News broke last night that Bryan Pagliano, who worked on Hillary Clinton’s 2008 presidential campaign, and later set up her private server in her New York home in 2009 (and then worked as a State Department IT employee), told congressional committees that he would invoke his Fifth Amendment right against self-incrimination in response to requests that he testify about his involvement with the server.
This, of course, is Pagliano’s right — and he is correct that the Fifth Amendment protects the innocent as much as the guilty. So this may be just a matter of simple self-protection, and in that respect, it is probably a wise move. Pagliano’s lawyer is an experienced former prosecutor who knows the drill. With the FBI conducting some sort of investigation into possible criminal conduct, it is usually the small fish that is the first target. By not testifying, the problem may simply go away for him. If Congress or the FBI really wants his testimony, one or the other can give Pagliano immunity from using his testimony against him in prosecution. If they don’t, he can’t be compelled to testify. And by not testifying to Congress, Pagliano can’t lie to Congress or get caught in inconsistent statements, which is where his biggest potential for criminal exposure probably is. Many a felon has been convicted under 18 U.S.C. § 1001, which prohibits false statements to the federal government as part of an official inquiry.
But putting aside the wisdom of his decision, Pagliano’s invocation of the privilege certainly raises the question of whether there is criminal conduct in which his testimony might implicate him. Remember, this is the guy who helped set up her secret server while employed by her campaign. He later got a job in her State Department and may have played a role while there in maintaining the server. There’s not much reason, from what we know, to think he was involved in sending or receiving classified information. So the real concern is the server itself.
Pagliano’s invocation of the privilege certainly raises the question of whether there is criminal conduct in which his testimony might implicate him.
As we have noted from the beginning of this controversy, it is a felony for the custodian of a federal record (which Mrs. Clinton plainly was) to “willfully and unlawfully” conceal, remove, mutilate, obliterate, falsify, or destroy the same (18 U.S.C. § 2071(b)). We don’t know all the facts here, but there certainly are indications that Mrs. Clinton set up this server for the purpose of evading federal disclosure and oversight. As James Carville argued back in March in trying to defend her, “I suspect she didn’t want [Congressman] Louie Gohmert riffling through her e-mails, which seems to me to be a kind of reasonable position for someone to take.” Reasonable only if she was not too concerned with complying with the law, perhaps.
#share#But why might this be relevant to Pagliano? Federal law also makes it a crime for any person to aid or abet another person’s commission of a crime. Pagliano can’t be principally liable for concealing or destroying records under Section 2071(b) because he wasn’t their custodian. But if he set up Mrs. Clinton’s server and assisted her in maintaining it knowing that the purpose was to avoid federal disclosure laws, he too might be implicated in criminal activity. That seems unlikely. More likely is that Pagliano is simply a techie who did what he was asked to do — set up a server. Again, we simply do not know all the facts here.
#related#For Hillary Clinton, the bad news is more obvious. The optics of Pagliano’s decision are just terrible for her. This may not be a five-alarm fire, but there certainly is smoke coming from behind the walls. It becomes much more difficult to convince the public that there is nothing to see here when people start “taking five.” Whatever inferences can or can’t be drawn against Pagliano in a court of law, nothing will stop the public from drawing reasonable inferences against Hillary Clinton in the court of public opinion.
— Shannen W. Coffin, a former Bush administration lawyer, is a contributing editor to National Review.