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Former Clinton Aide Will Invoke Fifth Amendment in Hearings

Former Clinton Aide Will Invoke Fifth Amendment in Hearings

Nothing at all happened! Nothing at all!

The former Hillary Clinton aide who set up the now-infamous “home-brew” server has told at least three Congressional committees that if he is asked to testify about Clinton’s server or system of records, he will invoke the Fifth Amendment.

Magliano worked on Clinton’s 2008 presidential campaign as the IT director; after that campaign came to an end, he joined up with a Clinton-affiliated PAC, and helped set up the server in Clinton’s New York home. He worked for the State Department from 2009-2013, and is now employed by a tech firm that occasionally contracts with State. He was subpoenaed to testify before the House Benghazi Committee, as well as the Senate Judiciary Committee and the Homeland Security Committee.

More coverage from NBC News:

“While we understand that Mr. Pagliano’s response to this subpoena may be controversial in the current political environment, we hope that the members of the Select Committee will respect our client’s right,” attorney Mark MacDougall wrote in a letter obtained by MSNBC to Benghazi Committee Chairman Rep. Trey Gowdy.

A Clinton campaign aide said in a statement to NBC News Wednesday the candidate has encouraged aides to answer any questions.

“We have been confident from the beginning that Hillary Clinton’s use of a personal email was allowed and that she did not send or receive anything marked classified, facts confirmed by the State Department and the Inspector General,” the statement said. “She has made every effort to answer questions and be as helpful as possible, and has encouraged her aides, current and former, to do the same, including Bryan Pagliano.”

There has been much discussion over whether or not Pagliano will be granted immunity in exchange for his future testimony; if it comes down to not hearing what Pagliano has to say, and granting immunity, it is likely the panel will have little trouble making sure they get his testimony:

In theory, the immunity granted extends only to the actual use of the congressional testimony, but in practice it becomes nearly impossible to prosecute the congressional witness for any crime related to the subject of that testimony. Thus, if the committee believes that the witness may truly face the possibility of prosecution, it may be reluctant to grant immunity. This is one of the primary reasons that congressional grants of immunity are fairly rare (the last one given was to Monica Goodling in 2007 by the House Judiciary Committee).

With respect to Pagliano, however, this would hardly seem to be a serious issue. Unlike Lerner, he is not a senior or central figure in the investigation. The chances of his facing any kind of criminal jeopardy for setting up a private e-mail server (which by definition had to have occurred before any classified e-mails were sent through that server) would seem extremely remote.

Where does this leave us? Right back where we started, right? This means nothing, right? It’s just procedural…oppression of our future First Female President©…right?

We’ll keep you updated on this latest piece of honesty out of the Clinton camp.


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fyi typo wrong name 2nd paragraph

Not A Member of Any Organized Political | September 3, 2015 at 9:02 pm

Those Dems sure love their 5th. Hiccup!

He better if he knows what’s good for him.

Hillary: Oh dear, I don’t know a thing about all these newfangled computer machines. I hired this young man because he claimed to know what he was doing. Emails? Do you need stamps to send those? (Cackle!)Oh, I don’t know about that kind of stuff. I’m just a sweet old grandmother with a vagina who deserves to be President.

    The twist with that is that Hillary didn’t hire him personally, not in this instance; he worked for the State Department with the appropriate security clearances and obligations. You know, like to report massive breaches in security.

No lone walks in parks, if he knows whats good for him IYKWIMAITYD. Peeling the onion is not in Hillary’s best interest, but slow-walking this til she’s “inevitable” is her only alternative. I hope jail time is in order for Cheryl Mills (long deserved) and monetary fines and a judicial order to stay married to Anthony Weiner for beard Huma Abedin – fitting punishment

    Not A Member of Any Organized Political in reply to Frank G. | September 3, 2015 at 10:37 pm

    Rumor has it Hillary is trying to convince him to take a nice, long vacation to Whitewater, or Libya.

What might be said about this guy in two months, or so: What was the name of that nice young man, he had so much promise too? It’s such a pity!

If a person claims the right to not testify because of fear of self-incrimination, and it turns out to not be true, is there a consequence? What if refuse to testify because I don’t want to get somebody else in trouble?

    5th Amendment privilege is a “personal” privilege. You cannot use it as a shield for refusal to testify about something someone else did that was not a criminal act on your own part.

    If you claim 5th Amendment privilege, and the Judge (or Congress) believes that you are doing it without cause, the individual can be held in “Contempt” and forced to testify (hence, the thought of an offer of “immunity” which would remove all 5th Amendement privilige.

    The BIG risk with Immunity offers is that he may say “hey, I took all the data out of the Secure Server, stripped the classified markings and delivered it to Sec. Clinton personally, and without any direction or assistance.” Then, he’s testified, but no one can prosecute due to the immunity (and it would HAVE to be all agencies US (local, State, National).

    By claiming 5th Amendment privilege, he all but just threw himself on the sword saying “I did something that I’m not going to talk about because it may have been illegal.” He just invited the Committee to scrutinize each and every facet of his life, communications, e-mails and data transmitted. If he so much as fragmented the drive without backing up the data and a byte of data was lost in the process, he’s criminally liable for destroying government records that he knew (or should have known) were subject to required retainage as they were the Sec. of State performing her stated employment for the US Government.

      DaveGinOly in reply to Chuck Skinner. | September 4, 2015 at 2:22 am

      The right is not against “self incrimination,” it is against “bearing witness” against oneself – there is a difference. Even an innocent person can’t know how something (completely innocent) that he may say can be used against him, so he does not have to have knowledge that what he says will “incriminate” him in order to exercise the right to “not bear witness” against himself.

      Consider what you’re told when you’re arrested: “Anything you say can and will be used against you.” This is true, even if you’re innocent. So you always have a right to clam up.

      Please watch “Don’t talk to police”:

      DaveGinOly in reply to Chuck Skinner. | September 4, 2015 at 2:47 am

      One more thing, Chuck.

      A person granted immunity from prosecution can still be charged with perjury if they lie about the actions for which they were given immunity. Immunity adheres to things done in the past. Once given, anything afterwards is still actionable. So Pagliano, should he pulls a stunt like you suggest, would still be on the hook if it is discovered that his testimony on the matter isn’t true.

    Sammy Finkelman in reply to Milwaukee. | September 4, 2015 at 4:09 am

    The way the lawyers have it, since about maybe the 1920s, when you take the 5th amendment you are not necessarily saying that you have committed a crime, but rather, that the questioning could be, or is, an attempt to get you to admit to something illegal, even a state of mind, – i.e. to be a witness against yourself. You don’t have to be guilty of anything not to want to be such a witness.

    But, say the lawyers, answering one question, about anything could cause a court to rule that you have waived that right cf. what Mark Fuhrman did at the O.J. Simpson trial – he wouldn’t answer any qestion once he took the 5th amendment, not even if he planted the glove.

      Sammy Finkelman in reply to Sammy Finkelman. | September 4, 2015 at 4:11 am

      Fuhrman’s only real problem was perjury on the question on when he had last used the N-word, although Vincent Bugliosi argued in the book “Outrage” he did have a good defense because the lie was not “material.” (and the witnesses the O.J. Simpson defense brought against Fuhrman about having used it while on duty in the second person, were almost certainly lying.)

      Fuhrman should have had more courage and integrity. Taking the 5th amendment didn’t even prevent a conviction.

      He pleaded no contest, which is legally the same as guilty. He got 3 years probation and a $200 fine. Maybe it would have been more if he had openly admitted it in court – or maybe less. You can’t say he gained nothing by taking the 5th amendment. Who knows how a change in the outcome of the trial of O.J. – if that had happened – would have affected his treatment?

      Bugliosi writes that Fuhrman told him that he was aware the question of materiality was a triable issue, but he wanted to put the whole thing behind him, and a trial would be costly and lengthy and, if convicted after a trial, he’d be likely to get a prison sentence. And you can imagine all the appeals. They’d have been raising money for that, probably, and probably prevailed in the end.

        Bruce Hayden in reply to Sammy Finkelman. | September 4, 2015 at 1:22 pm

        Hard to find integrity that late in the game. This is the guy who lied about the exigent circumstances justifying him illegally going over OJ’s,wall.

I don’t blame the guy one bit for taking the 5th…why get involved in that circus. He had nothing to do with what emails were sent or received by Hillary.

    Well, he has SOMETHING to do with them. We’re just not sure exactly what yet. Server maintenance is a funny thing.

    PS – You can’t assert 5th Amendment privilige simply to avoid getting involved. You have to have a good-faith, bone fide belief that you may have committed a criminal act that the questioning will disclose.

      Not exactly. You can claim the 5th if you believe truthful testimony might tend to incriminate you and be used as evidence against you – even if you believe you have committed no crime.

        DaveGinOly in reply to Estragon. | September 4, 2015 at 3:19 am

        A belief that your testimony will or might incriminate you is not necessary in order to invoke your right to remain silent. No person giving testimony, no matter how apparently innocuous it may seem, can know of every possible way that testimony may be used against him (even if it must be corrupted or misrepresented), so every person has a right to remain silent, even if he believes that nothing he could say may incriminate him.

        They aren’t kidding when they say “anything you say can and will be used against you.” Your guilt or innocence doesn’t have anything to do with it. The “Miranda warning” puts you on notice that even truthful statements, with no known (to you) incriminating information, can be used against you – so you have a right to say nothing at all times and under all circumstances. It’s a right for anyone and everyone to exercise at their discrimination.

          Sammy Finkelman in reply to DaveGinOly. | September 4, 2015 at 4:18 am

          There’s also the possibility, that if questioned, you might fear that you might give into the temptation to lie (out of fear of legal liability, or just looking bad) and that could become the crime.

          Although that reason is not given credence if someone is given immunity, and, in practice, if someone is given immunity, they are very rarely, if ever, prosecuted for perjury, even if lying is suspected.

      DaveGinOly in reply to Chuck Skinner. | September 4, 2015 at 3:10 am

      “You have to have a good-faith, bone fide belief that you may have committed a criminal act that the questioning will disclose.”

      Quite simply, incorrect. Remaining silent and refusal to bear witness against oneself are not merely the rights of those who “may have committed a criminal act that…questioning will disclose.” They are the rights of every citizen, guilty or innocent. They are meant to prevent the government from forcing statements that may be used to incriminate a suspect who is in fact innocent. Even an innocent person can’t know that what he says won’t be used against him, so he does not have to speak or bear witness against himself. (And the “Miranda warning” gives notice of this fact.)

      “If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.”
      Cardinal Richelieu

Bring him before Congress anyway. Ask the questions, and do not let him leave until you have heard “on the advice of my attorney, I am invoking my 5th Amendment rights against self-incrimination” at least 50 times.

If it comes before Gowdy, he knows what he is doing and will insist on an off the record interview or at the least a proffer from the attorney as to what the witness will testify to BEFORE offering immunity.

But this stinks to high heaven. MacDougall isn’t some guy you pick out of the phone book, he is one of the priciest attorneys at one of the highest-priced firms in the country. Unless Pagliano comes from great wealth, he cannot possibly afford to pay this guy on his own.

    Sammy Finkelman in reply to Estragon. | September 4, 2015 at 4:22 am

    If it comes before Gowdy, he knows what he is doing and will insist on an off the record interview or at the least a proffer from the attorney as to what the witness will testify to BEFORE offering immunity.

    In a situation like this, it’s better to depart from precedent, and offer immunity, even if the lawyer refuses to offer a proffer or allow preliminary interviews. Democrats will oppose the grant of immunity.

A question for you legal eagles.

The idea that Hillary will be pardoned by Obama keeps coming up around the interwebs. So here is my question: can a presidential pardon be reversed or revoked, thus exposing its former recipient once again to potential charges, trial, and conviction?

Obama pardons Clinton;
A Republican of substance become president;
His (or her) administration discovers and reveals the full depths of Hillary’s offenses, and it’s determined they shouldn’t have been pardoned and that justice must be served;
Can he or she revoke the pardon?

Is a pardon a revocable executive act, like an executive order, or does it have the force and permanence of a “not guilty” verdict?

    Sammy Finkelman in reply to DaveGinOly. | September 4, 2015 at 4:19 am

    A pardon is a pardon, even if bought and paid for, although buying a pardon can be a separate crime.

      DaveGinOly in reply to Sammy Finkelman. | September 4, 2015 at 3:07 pm

      Mmmmm. I should have just googled this initially. It seems President Bush reversed a pardon, one that he granted himself. And it seems he did so because of new information he acquired that altered his decision-making (just as I have proposed in my scenario, above). If this is possible, then I don’t see an obstacle to another president revoking a pardon granted by a predecessor (because every president is just another president – if one can reverse himself, any other can also reverse that same president’s decision).

      DaveGinOly in reply to Sammy Finkelman. | September 4, 2015 at 3:24 pm

      And here:
      “Ulysses S. Grant’s first clemency decision, on his third day in office, was to revoke two pardons granted by Andrew Johnson. Both men challenged Grant’s power to do so, and lost their case in federal court.”
      The article goes on to mention other cases in which pardons were revoked and the revocations were either enforced or not, depending on the particular circumstances. But the initial pull quote above states that without any special circumstances involved, a president can revoke a pardon extended by a predecessor, and that such revocation have withstood judicial review.

      Sorry, Sammy. Not beating up on you. Just that I’ve found answers myself and want others to see.

      Maybe The Donald should make this part of his platform: “I promise, that if I become president, I will review the pardons granted by my predecessor, and will revoke those that I believe were granted in error, or that justice and the rule of law require me to revoke.” (Without, you’ll notice, mentioning any names!)

Sammy Finkelman | September 4, 2015 at 3:31 am

after that campaign came to an end, he joined up with a Clinton-affiliated PAC

I knew there was probably something missing from the New York Times story yesterday.

Sammy Finkelman | September 4, 2015 at 3:36 am

In theory, the immunity granted extends only to the actual use of the congressional testimony, but in practice it becomes nearly impossible to prosecute the congressional witness for any crime related to the subject of that testimony

Oliver North’s appeal is responsible for that.

It certainly is more important to find out what Bryan Pagliano did than to prosecute him, especially since any violations of law, either in circuventing the Federal Records Act, or in obtaining access to classified information, or even participation in a bribery conspiracy or worse, would have been at the behest of Bill or Hillary Clinton.

    DaveGinOly in reply to Sammy Finkelman. | September 4, 2015 at 2:45 pm

    Pagliano may have nothing to hide, and he may be totally sure of his ability to give testimony without incriminating himself (even though innocent). He may just be trying to avoid being Vince Fostered.

DINORightMarie | September 4, 2015 at 6:07 am

Bottom line:

All this is why this should not be handled in Congress, but under a special prosecutor.

The guy may or may not be guilty. However, there is more than enough evidence that laws have been broken, and it is pretty clear that the State Department is stonewalling, that Hillary is deeply involved, and that All the First Lady’s Men (and Women) are deeply involved, as well.

Criminal proceedings. Under oath. And put on an expedited schedule, given the amount of time since Hillary resigned and what has been done to evidence – and potential evidence – since.

This guy may refuse testimony not because he’s afraid of what Congress might do to him, but because he’s afraid of what the Clinton crime family might do.

If so, then no sort of immunity from Congress would make any difference. He’d need a witness protection program, not immunity.

buckeyeminuteman | September 4, 2015 at 11:26 am

Liberals seem to be invoking the 5th and the 14th at a rapid pace. Why is it such a struggle for me to use the 1st and 2nd?

    I like to consider the right to remain silent and the right against bearing witness against oneself two separate rights. The latter is expounded by the Fifth Amendment, but the former is related to the right to speech in the First Amendment. Naturally, if you are free to speak, you also have a right not to speak, that is, to remain silent.

Sammy Finkelman | September 6, 2015 at 12:40 pm

Brian Pagliano, it turns out, was being paid separately by Hillary Clinton, to maintain the server.

What’s more, he did not reveal this on his financial disclosure statement, which is a flat out violation of law.

A spokesman for the Hillary Clinton campaign, speaking on condition of anonymity (which measn the campaign can deny anyone assocviated woith it ever said this at all, and/or it will be hard to cite) justified paying him privately on the grounds that this way the taxpayer was not responsible for the cost of maintaining the server.