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Clinton Aide Will Plead Fifth in Court, Attorneys Cite ‘Sufficient’ Risk of Self-Incrimination

Pagliano asks judge to keep his immunity agreement sealed

Bryan Pagliano
Bryan Pagliano / AP
June 8, 2016

Attorneys for a tech aide to Hillary Clinton defended his right to plead the Fifth Amendment in an upcoming deposition, arguing that an immunity deal he struck with the Department of Justice would not protect him from self-incriminating comments about the email server that he might make in the civil case.

Bryan Pagliano, the IT aide who set up Clinton’s email server, has been summoned to a deposition in a public records lawsuit brought by the watchdog group Judicial Watch against the State Department.

Pagliano’s attorneys have said the former Clinton aide will not answer questions due to concerns about potential self-incrimination. They defended the legal basis for this position in a court filing on Tuesday evening.

"The potential for self-incrimination here is sufficient to justify Mr. Pagliano’s intention to assert his Fifth Amendment rights," wrote Mark MacDougall, a lawyer for Pagliano.

"The Court has authorized Judicial Watch to obtain discovery relating to ‘the creation and operation of clintonemail.com for State Department business,’" he continued. "It is not ‘fanciful’ to conclude that those matters could fall within the scope of an ongoing (or possible future) criminal investigation of the same or similar subject matter."

Judicial Watch has not contested Pagliano’s right to take the Fifth Amendment in this case, but the group has challenged efforts by Pagliano’s attorneys to prevent the deposition from being videotaped. Attorneys for the former Clinton aide argue that there is no valid reason to videotape him refusing to answer questions.

"It is unfortunate the public’s right to know is being hampered," said Judicial Watch president Tom Fitton in a statement.  "These court filings are further evidence of the legal mess caused by Mrs. Clinton’s email system."

Joseph diGenova, a former U.S. Attorney for the District of Colombia, said the law is on Pagliano’s side regarding the Fifth Amendment and he expected the judge to agree to his request.

"Because it’s a separate judicial proceeding, he has a right to invoke the Fifth Amendment," said diGenova. "If he’s going to take the Fifth, I don’t see any reason to allow it to be videotaped."

Pagliano’s attorneys also filed copies of his immunity agreement with the government, but asked the judge to keep the documents under seal.

The legal defense memo by Pagliano’s attorneys also disclosed that the Justice Department granted him limited "use" and "derivative use" immunity in federal investigation of Clinton’s private email server, which means the government cannot use his testimony to law enforcement to prosecute him in a subsequent criminal proceeding. Incriminating statements he makes outside of the FBI probe, such as in a civil lawsuit, could potentially be used against him.

DiGenova said the filing is "confirmatory of everything we knew already, that it’s a criminal investigation of [Clinton] and her staff," noting that Pagliano "wouldn’t need [immunity] otherwise."

Published under: Hillary Clinton