Grassley, Johnson Consider Next Steps to Obtain Testimony from Clinton IT Employee

WASHINGTON – Citing the unique information he may possess, Senate Judiciary Committee and Homeland Security and Government Affairs Committee chairmen Chuck Grassley and Ron Johnson are considering next steps to obtain the testimony of former State Department and Clinton family employee Bryan Pagliano, who was reportedly paid to maintain Clinton’s personal server in New York while she was Secretary of State.  Chairmen Grassley and Johnson indicated that these next steps may include, if appropriate, seeking an immunity order.

After being contacted by both Senate committees on several occasions, last week, Pagliano’s attorneys indicated that he would exercise his constitutional right under the Fifth Amendment to avoid being compelled to provide testimony that might be used to prosecute him.   

According to campaign finance records and news reports, Pagliano was paid by former Secretary of State Hillary Clinton’s Senate Leadership PAC through April 2009 and then was paid by the State Department as an Information Technology Specialist while continuing to act as the lead specialist responsible for Clinton’s private server in New York.

In a letter to Pagliano and his attorneys, Grassley and Johnson wrote, “The Committees will certainly respect and defer to any legitimate assertion of an individual’s constitutional rights. With that being said, the Committees also need the unique information you likely have in order to exercise their oversight functions under the Constitution, which are unrelated to any potential prosecution or criminal inquiry.  Thus, the Committees have the authority to obtain an immunity order, to acquire the information they need, while also protecting your right against self-incrimination.”

The chairmen added, “Given the issues raised by your attorney and in order for the Committees to assess whether it would be appropriate for either Committee to consider obtaining an immunity order in these circumstances, we ask that your attorneys meet with the Committees’ staff to explore how to obtain the unique information you possess while respecting your constitutional rights, such as the possibility of a proffer session so that we can better understand what your testimony would be without any waiver of your rights.”

A copy of the text of the letter is below.  The signed letter can be found here.

VIA ELECTRONIC TRANSMISSION

Mr. Bryan M. Pagliano
c/o Mark MacDougall, Esq.
Constance O’Connor, Esq.
Connor Mullin, Esq.
Sean D’Arcy, Esq.
Akin Gump Strauss Hauer & Feld
1333 New Hampshire Ave NW,
Washington, DC 20036

Dear Mr. Pagliano,

According to federal campaign finance records, you “[were] paid by Clinton’s Senate leadership PAC through April of 2009,” where you served as the campaign’s IT director.[1]  According to news reports, the following month, you began working for the State Department as an IT Specialist and continued to act as the lead specialist responsible for Secretary Clinton’s private server in New York.[2]  From 2010-2012, you were compensated at the GS-15 level by the Department.[3]  You reportedly worked for the Department as an IT Specialist and were tasked with overseeing the maintenance and operability of Secretary Clinton’s non-government server.  Her use of that server substantially hindered the ability of State Department personnel to fully comply with Freedom of Information Act (FOIA) requests, which has generated substantial related litigation with FOIA requestors.  In addition, according to the Inspector General for the Intelligence Community, Secretary Clinton’s email records included “information classified up to ‘TOP SECRET//SI//TK//NOFORN.’”[4] 

Accordingly, the Judiciary Committee, which has jurisdiction over FOIA, and the Homeland Security and Governmental Affairs Committee, which has jurisdiction over national security procedures and federal records, are investigating the circumstances surrounding the use of that non-government email server.  It appears likely that you have unique information relevant to the Committees’ inquiry.

On August 19, 2015, staff of the Homeland Security and Governmental Affairs Committee contacted you to inquire whether you would speak with the Committee.  On your behalf, your attorney declined and subsequently indicated that you would avail yourself of constitutional protections. 

On August 28, 2015, staff of the Judiciary Committee reached out to you in an attempt to schedule an interview to discuss those matters.  On September 1, 2015, in response to a question about whether you were paid by any outside entity during your tenure at the State Department, your attorneys notified Judiciary Committee staff unequivocally that they will not be “answering questions or providing any information on [your] behalf.”  In addition, your attorneys stated that “[i]f any effort is made to compel our client’s testimony, Mr. Pagliano will decline to answer such questions in reliance on his right under the 5^th Amendment.” 

Your right under the Fifth Amendment to avoid being compelled to provide testimony that might be used to prosecute you is a fundamental individual right.  The Committees will certainly respect and defer to any legitimate assertion of an individual’s constitutional rights. 

With that being said, the Committees also need the unique information you likely have in order to exercise their oversight functions under the Constitution, which are unrelated to any potential prosecution or criminal inquiry.  Thus, the Committees have the authority to obtain an immunity order, to acquire the information they need, while also protecting your right against self-incrimination.[5]

On behalf of the Committees, we write to request that you make yourself available to provide information.  Given the issues raised by your attorney and in order for the Committees to assess whether it would be appropriate for either Committee to consider obtaining an immunity order in these circumstances, we ask that your attorneys meet with the Committees’ staff to explore how to obtain the unique information you possess while respecting your constitutional rights, such as the possibility of a proffer session so that we can better understand what your testimony would be without any waiver of your rights.

Please respond no later than September 10, 2015.  If you have questions, please have your attorney contact Josh Flynn-Brown of the Judiciary Committee staff at (202) 224-5225 or David Brewer of the Homeland Security and Governmental Affairs Committee staff at (202) 224-4751.

Sincerely,

Ron Johnson                                                                                  Charles E. Grassley
Chairman                                                                                      Chairman
Committee on Homeland Security and                                                   Committee on the Judiciary
Governmental Affairs                                                                                                                                                                     

cc:        The Honorable Thomas R. Carper
            Ranking Member      
            Committee on Homeland Security and Governmental Affairs 

            The Honorable Patrick J. Leahy
            Ranking Member
            Committee on the Judiciary