DOJ Gives Immunity To Aide Who Set Up Clinton's Server

Wash. Post: Clinton Aide Is Granted Immunity In Exchange For Cooperating In Investigation Into The Mishandling Of Classified Information. The Washington Post reported on March 2 that the Department of Justice granted immunity to Bryan Pagliano, a Clinton aide who had set up her email server in New York in 2009. The article noted, “So far, there is no indication that prosecutors have convened a grand jury in the email investigation to subpoena testimony or documents, which would require the participation of a U.S. attorney's office”:

The Justice Department has granted immunity to a former State Department staffer, who worked on Hillary Clinton's private email server, as part of a criminal investigation into the possible mishandling of classified information, according to a senior law enforcement official.

The official said the FBI had secured the cooperation of Bryan Pagliano, who worked on Clinton's 2008 presidential campaign before setting up the server in her New York home in 2009.

As the FBI looks to wrap up its investigation in the coming months, agents are likely to want to interview Clinton and her senior aides about the decision to use a private server, how it was set up, and whether any of the participants knew they were sending classified information in emails, current and former officials said.

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So far, there is no indication that prosecutors have convened a grand jury in the email investigation to subpoena testimony or documents, which would require the participation of a U.S. attorney's office. [The Washington Post, 3/2/16]

General Counsel Made Clear That FBI Has Not Acknowledged Any Criminal Focus In Ongoing Investigation 

DOJ General Counsel: FBI Has Not Publicly “Acknowledged The Specific Focus, Scope, Or Potential Targets Of Any” Investigation Into Clinton's Use Of A Private Server. In a February 2 letter, Justice Department general counsel James Baker explained that the FBI could not “confirm or deny the existence of any on-going investigation.” Baker explained that while the FBI is working on matters related to Clinton's uses of a private email server, “The FBI has not, however, publicly acknowledged the specific focus, scope, or potential targets of any such proceedings.” [U.S. Department of Justice, 2/2/16]

CNN Analysts Explain Immunity Is Normal, Does Not Imply Criminal Charges Are Forthcoming

CNN's Errol Louis: Immunity Does Not Guarantee “Something Criminal Or Nefarious Was Going On.” During the March 3 edition of CNN's New Day, CNN political commentator Errol Louis pointed out that a lawyer would want to get their client immunity in order to prevent “any misunderstandings or any possibilities,” and that immunity does not necessarily show “that something criminal or nefarious was going on”:

CHRIS CUOMO (HOST): So here's the headline: The former Hillary Clinton staffer who helped set up her private email server agreeing to talk to the feds in exchange for immunity from the Justice Department. Non-event or main event?

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CUOMO: Errol, how do you see it?

ERROL LOUIS: I tend to think of if it as, if he had a good lawyer, like you, representing him, this email employee would probably say, 'I need immunity before I say anything. I don't want there to be any misunderstandings or any possibilities.' I don't think the mere fact that he's getting immunity signals that something criminal or nefarious was going on. [CNN, New Day, 3/3/16]

CNN's John King: Immunity Deals Are “Common In Investigations” And Republicans Need To “Step Back” From Making Conclusions. During the March 3 edition of New Day, CNN chief national correspondent John King said giving immunity to participants is “common in investigations.” Further, he explained that it is routine to make “a deal with the people who aren't central to the investigation to get the information that you need for the investigation.” King said Republicans who believe “this is the sign of the coming indictment and everything else” need to “step back for a minute” and wait for the investigation to end before jumping to conclusions:

ALISYN CAMEROTA (HOST): OK, let's talk about this. Former - the top I.T. staffer for Hillary Clinton, who set up the private email server, can now speak freely, because he's been given immunity, to the FBI. How big of a deal?

JOHN KING: It is a big deal, but I would say if you're Hillary Clinton, you should be nervous and you should be happy. You should be nervous because this means they're going to get into the nuts and bolts of the investigation now, the guy who set it up, what did she say, what were the deals, did she talk anything about “are my emails secure? What if I receive sensitive information?” The FBI's going to have the guy who was right there on the ground when they installed this thing. But, but, let's just step back for a minute. The Republicans are saying this is the sign of the coming indictment and everything else. Let's - everyone should take a breath. It means they're moving forward with the investigation and if you're Hillary Clinton, she has a debate this weekend. She's going to still have to answer about this. The Republicans hit her every day on this. If it means you're getting closer to the end of the investigation and if she is supremely confident she did nothing wrong, it's a good thing for her. So let's just see. We should all take a breath, but it does mean that -- this is common in investigations. You cut deals with two, three, four level witnesses to talk about the main issues and take it as progress.

CHRIS CUOMO (HOST): There's no question that it's a good investigative strategy. The question is is it good political strategy? Seems like the answer is no. Because to Alisyn's point, he was always free to speak freely to the investigators. He didn't want to until he got immunity, and even though the Fifth Amendment is writ large everywhere in our society's laws, it doesn't smell good.

KING: No, it doesn't, and it's a pretty common practice. You know the law very well. This is done in investigations every day, whether you're investigating a robbery at the 7/11 or whether you're investigating Hillary Clinton's email server. It's a pretty common tactic. Cut a deal with the people who aren't central to the investigation to get the information that you need for the investigation. But you're right, in this -- especially in this political environment, it's a great headline for the other side. “Immunity deal, Clinton investigation.” But let's see when we get to the end what the FBI says. [CNN, New Day, 3/3/16]

CNN's Mel Robbins: Clinton Aide May “Not Necessarily” Have Anything Important To Tell Investigators. During the March 3 edition of CNN's CNN Newsroom with Carol Costello, CNN legal analyst Mel Robbins said it is “not necessarily” the case that Pagliano has anything of importance to tell federal investigators and that people “can make a mountain out of a molehill when somebody invokes their Fifth Amendment right not to testify.” Robbins also said it was “highly unlikely” Clinton would be criminally charged:

CAROL COSTELLO (HOST): I want you to put this in perspective for us. So Pagliano. He had invoked his Fifth Amendment rights. Now he has immunity. But just because he invoked his Fifth Amendment rights, does that mean he has really anything substantive to say?

MEL ROBBINS: Not necessarily. You can make a mountain out of a molehill when somebody invokes their Fifth Amendment right not to testify. When you've got Congress and you've got a federal investigation, you'd better believe he's represented by lawyers and those lawyers are saying, “You're not going talk to anybody until there's some kind of deal on the table.” Now, another question here is what exactly do they want to talk to him about? This was a guy that worked on her campaign in 2008. And he was part of the team that was responsible for setting up that private email server in her home in New York in 2009. What do they want to know? Well, they want to know why did Hillary Clinton want to use a -- a private email server. They're going to ask him questions about what did she say about why? What was his understanding about why it was important for her to have this set up? If, for example, he knew that she wanted to have classified information out of her access coming through her home, that would be terrible both for him and for her because it would show knowledge and it would show intent. They're also going to ask him, Carol, about whether or not he knew whether there was going to be classified or whether there was classified information that was sent. So that's going to be the nature of the questions and the type of things that they're going to be interested in asking this guy about.

COSTELLO: So we often hear Hillary Clinton's Republican opponents say that soon she will be led away in handcuffs. Right? How likely -- I mean, could that happen?

ROBBINS: Could? I mean, there are a lot of Republican pundits that are now kind of walking back on the fact that they said it could never happen that Donald Trump would be the Republican nominee. So could it? I suppose if there's some sort of smoking gun. But it's highly unlikely. Let's look at a case that many people remember, with Petraeus. Remember, he gave notebooks that had classified information in it to his mistress as she was writing a book about him. Now that case is a little bit different than the Clinton case because, first of all, there was absolutely no question that the information that he gave was classified. In this particular instance, it's not clear that the information that Clinton had on her server was actually classified, because it became classified retroactively. Secondly, Petraeus lied to the FBI during the investigation and that really made people angry, people inside the FBI, which is why they also went after him with a vengeance. So he was eventually found criminally liable for both classified information and for lying. Is Clinton gonna be led away in handcuffs? I highly, highly doubt it. While they do have immunity, they can certainly interview this guy that's a former staffer that was helping set up this private e-mail server. They're going to get information about what was Clinton talking about, what was his understanding about why they set it up, but it's really not clear whether or not the information was classified at all, Carol. [CNN, CNN Newsroom with Carol Costello, 3/3/16]

Fox News Hypes Report, Wildly Speculates On Clinton Indictment

Fox's Kelly: “The Justice Department May Be Seriously Stepping Up Its Investigation Into Hillary Clinton's Use Of A Private Email Server As Secretary Of State.” On the March 2 edition of Fox News' The Kelly File, host Megyn Kelly hyped The Washington Post's story, claiming that the Justice Department may be “stepping up” its investigation into Clinton's use of a private email server by offering immunity to Pagliano. Kelly also claimed that “there is a greater chance than zero Hillary Clinton will be indicted.” [Fox News, The Kelly File, 3/2/16]

Fox's Andrew Napolitano: Immunity Deal Shows Grand Jury “Is Hearing Evidence” And Justice Department “Has Decided It's Going To Indict.” During the March 3 edition of Fox News' Fox & Friends, Fox senior judicial analyst Andrew Napolitano claimed the immunity deal showed “the FBI recommendation that we've been waiting for has already been made” and that a “witness could only testify if a grand jury was already hearing evidence.” Napolitano also claimed that the “Justice Department has decided it's going to indict someone” and Pagliano is “about to spill the beans to a grand jury”:

AINSLEY EARHARDT (HOST): Judge, this is big. It broke last night. What does all this mean?

ANDREW NAPOLITANO: This is enough to shake the American political system to its foundation because we now know the following -- we know that the FBI recommendation that we've been waiting for has already been made.

EARHARDT: Why do you know that?

NAPOLITANO: Because the fact that immunity has been granted means that the Justice Department, lawyers in the Justice Department, not FBI agents, went to a federal judge and asked for immunity. A federal judge would only grant immunity for a witness to testify. A witness could only testify if a grand jury was already hearing evidence. So if a grand jury is hearing evidence, the evidence was obtained by the FBI and delivered to the Justice Department. The Justice Department has decided it's going to indict someone. Not Bryan Pagliano, the guy who installed her server in her house and diverted - performed the technical procedures to divert her emails through that server, for which she paid them $5,000. They want him to testify against some person or persons north of him on the totem pole.

EARHARDT: Is it Hillary Clinton?

NAPOLITANO: Well, she's obviously at the top of the totem pole, but, candidly, there are numerous people between Mr. Pagliano and others. But last week a federal judge in the Freedom of Information Act case, not in the criminal case, said there might have been a conspiracy in the State Department to violate the federal laws. What federal laws would've been violated? The laws that require those who receive state secrets to keep them secure. You can commit espionage under federal law by intentionally or negligently failing to keep state secrets secure. Mr. Pagliano, the Justice Department apparently believes, was present at the creation of this conspiracy. He knows who led it. And he knows who's in it, and he's about to spill the beans to a grand jury. [Fox News, Fox & Friends, 3/3/16]

Fox's Doug McKelway: Unnamed U.S. Attorney Says Immunity Deal Shows Indictment Could Come In Around 90 Days. During the March 3 edition of Fox News' Happening Now, reporter Doug McKelway claimed “a [former] U.S. attorney I spoke to this morning” told him the immunity deal “marks a standard prosecutorial procedure” and could “suggest a methodological investigation working the pyramid from the bottom up.” McKelway said the unnamed U.S. attorney also claimed that based on this deal “it could be 90 days or so before DOJ announces whether it will proceed with a criminal indictment”:

DOUG MCKELWAY: You might recall that Bryan Pagliano refused all congressional inquiries about his role in setting up the server, invoking his Fifth Amendment rights against self-incrimination last fall when he was asked to testify before the House Select Committee on Benghazi. Well, that has now changed. The granting of immunity for Pagliano, who was a staffer for Clinton's 2008 campaign, who then followed her to the State Department. This marks a standard prosecutorial procedure, at least according to a U.S. attorney I spoke to this morning, a former U.S attorney. It suggested his attorney made a proffer. That's an offer made prior to any formal negotiation, as to what Pagliano is willing to testify to. It suggest a methodological investigation, working the pyramid from the bottom up. But if Pagliano is at the bottom of that pyramid, he's also a foundation of that pyramid. He will be asked who told him to set up the server, how many conversations did he have with Clinton and with her staff? What were the substance of those conversations and did he destroy evidence or wipe the server clean and under whose orders? The Washington Post reported this morning that there is no evidence a grand jury has yet been impaneled, but Fox News contributor Andrew Napolitano disagrees with that.

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MCKELWAY: The former U.S. attorney I spoke to this morning said he finds it hard to believe that a grand jury has not already been impaneled.

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MCKELWAY: Based on Pagliano's immunity deal, the former U.S. attorney I spoke to today said it could be 90 days or so before DOJ announces whether it will proceed with a criminal indictment. [Fox News, Happening Now, 3/3/16]