Politics & Policy

Immunity for Witness in Hillary E-Mails Caper — So Is There a Grand Jury?

Bryan Pagliano exits a Congressional hearing, September 10, 2015. (Saul Loeb/AFP/Getty)
We don’t know for sure, but signs suggest that the answer is probably yes.

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.

The question arises because the Clinton camp continues to downplay what is actually a criminal investigation of Mrs. Clinton and other suspects. The Hillary campaign insists it is a mere “security inquiry,” focused only on the physical homebrew server. The FBI, of course, is in the criminal-investigation business. And as I pointed out when the New York Times reported that Mrs. Clinton was not the “subject” of an investigation, it makes no sense to talk about “subjects” (or “targets”) of an investigation unless there is a grand jury — the grand-jury investigation is what a “subject” is the subject of.

RELATED: Hillary’s E-Mail Recklessness Compromised Our National Security

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.

The proffer agreement is more common, and is the more limited form of immunity. It provides a witness who has refused to cooperate with limited use immunity for statements that he makes to law enforcement. (Use immunity refers to the use of the witness’s statements against him in any criminal prosecution. It is distinguished from transactional immunity, which refers to an agreement not to prosecute a person for specified criminal transactions.) I say the immunity extended by the proffer agreement is limited because it applies only to the statements themselves, not leads arising out of the statements. (Example: The witness says, “I killed the man and hid the body in the woods.” The witness’s admissions about killing the victim and hiding the body may not be used against him in court; but if agents, based on the statements, rush into the woods, dig up the body, and find the witness’s fingerprints on the victim’s clothing, the witness may be prosecuted for murder, and both the victim’s body and the witness’s prints may be used against the witness.)

RELATED: Why the Justice Department Won’t Work with the FBI on Clinton’s E-mail Case

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.

#share#There are other salient differences between a proffer agreement and statutory immunity. The former is simply a contract: It binds only the parties to the contract — the district U.S. attorney’s office and the witness. Statutory immunity, on the other hand, is the product of a legal process enacted by Congress (codified in sections 6001 et seq. of Title 18, U.S. Code): The judicial immunity order is generally binding on all federal and state prosecutors.

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.

RELATED: Obama’s Growing Conflict of Interest in the Clinton E-mail Scandal

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).

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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.

#related#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).

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