Former State Department employee Bryan Pagliano was the person paid separately by Hillary Clinton to set it up and maintain her private “clintonmail.com” email system. The announcement last week that the Justice Department granted Pagliano immunity from prosecution is the most important development in the case since it began.
Clinton’s defenders have searched the dictionaries and encyclopedias to find a way to spin the FBI’s investigation of her conduct as secretary of state. They’ve said it was an investigation into her private email system, but not of her. They’ve said it’s not a criminal investigation and that it’s nothing more than a “security review.”
What nonsense. The FBI doesn’t investigate email systems, it investigates what people communicated while using them. The FBI only investigates people’s conduct to determine if they have violated federal criminal law. (The FBI doesn’t do security reviews except when they concern the conduct of FBI employees.)
The Wall Street Journal’s James Taranto wrote last week about the odd lack of dissent among pols and pundits from the assumption that the Justice Department wouldn’t allow Clinton to be indicted purely on political grounds. As I have written before, that assumption is almost certainly false. Pagliano’s immunity agreement is a strong indication that several people, almost certainly including Clinton, will be indicted.
Let’s not let anyone kid us. Ask yourself when was the last time one hundred and fifty FBI special agents spent many months on an investigation only to conclude that there wasn’t anything to prosecute, that they’d just sigh deeply and go home?
For those just joining us, a brief recap. When she became secretary of state, Hillary Clinton established a private, non-government email system for her and her aides to use. It was created for a corrupt purpose, namely to violate the laws and regulations providing that the government will own and maintain control over government communications for the purposes of security and maintaining a historical record. Clinton chose to maintain control herself with the obvious intent of preventing anyone from knowing what she did that would violate laws against public corruption (such as her dealings with foreign governments to benefit the Clinton Foundation). She did so willfully and in apparent violation of laws against disclosing or making secret information vulnerable to disclosure.
Over the past year or so, we’ve learned that many of our nation’s most closely held secrets — at the top secret/sensitive compartmented information level — were sent back and forth about 2,000 times on Clinton’s private email system. According to the Sunday Washington Post, Clinton wrote at least 104 secret emails herself.
Clinton maintained the email system and deleted an unknown number of emails before she turned the rest over to the State Department so it could comply with court orders on disclosure. She — or someone on her behalf — apparently attempted to destroy the computer servers, but the FBI is believed to have recovered all or some of the missing/destroyed emails.
Of the 30,000 emails turned over by Clinton to State, roughly 2,100 contained classified information and at least four were so highly classified they couldn’t be made public in any form.
Each time that happened, it was a criminal act that could result in punishment of from five to ten years in prison.
Last year Pagliano asserted the Fifth Amendment’s protection against self-incrimination in testimony to the House of Representatives committee investigating Benghazi.
And, to close our recap, we know that this practice had to be known by the intelligence agencies as well as by President Obama, who emailed her at her “clintonmail.com” address more than a dozen times. Vichy John Kerry sent her at least one email to that address containing classified information while he was still a senator.
Now comes the fun part.
Those of us unfortunate enough to have gone to law school were taught that there is no legal significance to someone invoking the Fifth Amendment in testimony. That legal conceit is a fiction we swear by, but we know in our hearts — as does everyone else — that innocent people don’t plead the Fifth.
When Bryan Pagliano pled the Fifth before the Benghazi investigating committee rather than testify about Hillary Clinton’s non-government email system, we knew he was guilty of something, and that “something” was almost certainly willing complicity in violation of the criminal laws regarding the handling and protection of government secrets.
Pagliano’s immunity deal tells us a lot. First, because Justice Department guidelines strongly disfavor immunity agreements, Pagliano’s lawyers must have given the FBI and DoJ lawyers a proffer of testimony to evidence that made the immunity deal worthwhile. What could that be?
Pagliano must have had direction from Clinton — and her top staffers — to set the email system up the way he did. Because he was paid by Clinton — in addition to his State Department salary — he had to be suspicious of the whole matter. He may be able to testify that Clinton told him she wanted a system that would enable her to use it for all her government emails. He would have had to have known that a substantial portion of them had to, going forward, contain classified information.
Pagliano may also be able to testify as to instructions he received from Clinton and her top staffers — Huma Abedin, Cheryl Mills, and Jake Sullivan — on how to maintain the system. He should also be able to testify on the relationship Clinton and her staff had with Platte River Networks, a company Clinton hired to help maintain it (which had no security clearance to do so).
The immunity agreement also indicates that a grand jury is investigating the Clinton email scam. Though no grand jury has been announced, empaneling one gives prosecutors far greater powers than the FBI has such as subpoenaing witnesses to give sworn testimony behind closed doors. It’s unusual, but not unheard of, for a secret grand jury to be empaneled and function quite well.
The next step for the FBI and the Justice Department would be to interview Abedin, Mills, and Sullivan to see if they’re willing to testify against Clinton (remember Susan MacDougal?) or go to jail in order to protect her. All three are believed to have copied classified information from the Secured Protocols Network (“SIPRNET”) and the Joint Worldwide Intelligence Collection Networks (“JWICS”) — the classified information networks the government maintains — to open emails on Clinton’s system at her direction.
They are also believed to have illegally shared passwords to SIPRNET and JWICS in furtherance of her directions. Each of them could be looking at a long jail term.
I am not yet so cynical as to believe that FBI Director James Comey and his team won’t demand that Clinton and her aides be indicted. It may come down to them threatening to resign loudly if those indictments aren’t forthcoming. If they fail to do so, Clinton and her staffers may get away with very serious crimes.
Last week, Clinton proclaimed herself the most transparent politician in modern history. That’s certainly true in one sense. Hillary Clinton is the most transparently corrupt politician in American history since Boss Tweed.