Taking the Fifth in Hillary’s Email Imbroglio

Posted in: Constitutional Law

The Washington Post was first to report a former aide to Hillary Clinton, Bryan Pagliano, will invoke the Fifth Amendment to avoid the subpoena seeking his testimony from several congressional committees hell-bent on derailing the former Secretary of State’s efforts to become President of the United States. We learned from Fox News that no fewer than three Republican inquiries are pursuing Pagliano: House Select Committee on Benghazi, the Senate Judiciary Committee, and the Senate Homeland Security Committee.

Bryan Pagliano, according to published reports, has been Hillary’s computer whiz for a number of years, first during her 2008 presidential bid, then he set up her private server when she became Secretary of State, moving into the State Department’s IT operation at that time, and when Hillary departed from State, he joined a private contractor who does work for the State Department.

Like many current and former Hillary Clinton aides, Pagliano has been caught up in a dragnet cast by Republicans as they search for anything and everything that might be used to damage her presidential bid. He is the first Clinton aide to say he does not want to assist the Republican expose. The House Select Benghazi committee Republicans cannot force his testimony, however, without the assistance of Democrats unless they escalated the matter to the full House of Representatives. Let me explain.

Congress’s Power to Conduct Politically Ruthless Investigations

The U.S. Constitution does not expressly grant Congress the power to investigate, but because that power was employed by the British Parliament and then by various assemblies in the American colonies, which were the constitutional models, the U.S. Supreme Court considers the power to investigate inherent to the legislative power of Congress.

Congress has unquestioned authority to investigate the conduct of the various executive departments and agencies of government, and this is the basis for the investigations of Hillary Clinton. Congress has been investigating the terrorist raid on the U.S. Embassy in Benghazi, Libya, and Hillary’s responsibility for the four American who lives were lost, including that of her friend Ambassador J. Christopher Stevens, from days after the tragedy occurred. It was this investigation that led to the search for her emails, which uncovered the fact Hillary—and her husband, former President Bill Clinton—had set up a private email server in their Chappaqua, New York, home while she was Secretary of State.

It appears that Republicans are just getting started with their investigations, notwithstanding the fact they have been at it for almost three years. Politico recently reported that House Speaker John Boehner is considering adding further inquiries on top of those currently in progress in both the House and Senate. These inquiries have been surprisingly successful in keeping the issue in the news, and Hillary Clinton’s campaign has consistently fumbled its handling of the issue, actually giving it ongoing traction. Hillary and her team are effectively writing the book on how to let a minor non-issue become a big deal, and potentially a catastrophic problem.

It is not unique for Congress to proceed relentlessly and ruthlessly. Congress has never had a sense of decency when conducting their witch-hunts. As long as there is political hay to be harvested, congressional investigators on both sides of the political spectrum will push and probe without propriety or restraint. It is a law of political nature.

Members of the House and Senate who had never heard of Bryan Pagliano now see him as a man with something to hide, and you can be sure they want to know what that might be. If it is really important, they can get it. If it is unimportant, they can make more political hay out of his taking the Fifth Amendment. They will do whatever works best for them politically.

Congress Can Get Around the Fifth Amendment, Sometimes

Congress is accustomed to witness invoking the Fifth Amendment privilege against self-incrimination. Most recently, for example, IRS official Lois Lerner took the Fifth. Off the top, I can recall several others: Oliver North did it in 1987 during the Iran-Contra investigation; Webster Hubbell refused to testify during the Whitewater investigation relating to the Clintons; Monica Goodling refused to testify about the Bush/Cheney Justice Department’s hiring and firing of U.S. Attorneys; Mark McGwire, the St. Louis Cardinal slugger, took the Fifth in 2005 when Congress was looking at steroids use in baseball—to mention but a few.

According to ABC News, committee chairman Trey Gowdy wants Pagliano to testify and provide documents “related to the servers or systems” operated and owned by Clinton. Pagliano attorneys responded, “While we understand that Mr. Pagliano’s response to this subpoena may be controversial in the current political environment, we hope that members of the Select Committee will respect our client’s right to invoke the protections of the Constitution,” Pagliano answered, adding, “For these reasons, we respectfully request that the Select Committee excuse Mr. Pagliano from personally appearing on Sept. 10, 2015.” The Fifth Amendment, however, does not excuse a witness from appearing when subpoenaed, so he will have to show up to invoke the Fifth Amendment.

Congress has the power to compel testimony of those who take the Fifth Amendment by granting them immunity from prosecution. Here is link to a nice analysis of congressional immunity (and its problems) by a former Georgetown Law student, Hanah Metchis Volokh. Notwithstanding the power to compel testimony, it is anything but clear that Trey Gowdy has the votes to immunize Pagliano, if he does take the Fifth Amendment. As Ms. Volokh notes of the applicable law, 18 U.S.C. § 6005 requires “a committee or subcommittee of Congress” to obtain “a two-thirds vote of the full committee membership to grant immunity” to a witness. With the Benghazi committee split seven Republicans and five Democrats, it will take one Democrat to get the two-thirds vote to immunize, i.e., eight votes. The immunity statute does provide another way to immunize a witness, and that is a vote of the full House of Representatives, which only requires a majority of the full House. But it would be highly unusual, not to mention political in the extreme, to take this matter to entire House for such a purpose.

A larger question is what is driving Pagliano.

Why Is Bryan Pagliano Claiming the Fifth?

Most people assume only those guilty of some crime plead the Fifth. Accordingly, there is media speculation of what crime or crimes might be involved with Hillary’s activities. Overlooked is the fact it could no crime was involved, notwithstanding Republicans are increasingly making the investigation of Hillary as something akin to Watergate—which it is not.

The Washington Post reports that Pagliano’s attorney sent chairman Gowdy a letter mentioning the FBI’s investigation. More importantly, the letter quotes a U.S. Supreme Court ruling that is not specifically identified. Based on the quoted language, however, it appears to be the 2001 holding in Ohio v. Matthew Reiner, where the Ohio Supreme Court ruled a witness who denied “all culpability” in a criminal proceeding did not have a valid Fifth Amendment privilege against self-incrimination. The U.S. Supreme Court disagreed and reversed the Ohio Supreme Court.

The U.S. Supreme Court explained that the Fifth Amendment privilege extends to witnesses who have “reasonable cause to apprehend danger from a direct answer.” This, the Court continued, was a legal matter for courts to determine, for a mere assertion by a witness that they feel the risk of incrimination is not sufficient. The Court added, “A danger of ‘imaginary and unsubstantial character’ will not suffice.” When the Court turned to the holding of the Supreme Court of Ohio, they rejected the claim that the Fifth Amendment was unavailable to persons who claimed to be innocent. “To the contrary,” the Court stated, “we have emphasized that one of the Fifth Amendment’s ‘basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances.” (Emphasis in original; bold was quoted by Pagliano’s attorneys according to news accounts).

It is not difficult to envision how a congressional witch-hunt could ensnare a person by ambiguous circumstances. Nor is it difficult to envision how Republicans may play this latest twist in Hillary’s email saga: Her staff is afraid to talk about anything related to Hillary lest they find themselves indicted for a crime they did not even know they had committed, for she is criminally infectious. In the larger picture, it strikes me that Pagliano’s lawyers may be overprotecting their client, or maybe he made a mistake and they are using Hillary to protect him from fessing up to it.

Whatever Bryan Pagliano has or has not done, his taking the Fifth will certainly help keep this tempest swirling about the teapot. It is another gift to Republicans from Hillary Clinton and her campaign and their striking inept handling of her private emails, creating an imbroglio rather than clarity. They should not forget the wisdom of Richard Nixon who reminded the world the cover up is always worse than the underlying crime, as he ignored reality while taking his cover up deeper and deeper.