By Julian Hattem - 06/05/16 10:30 AM EDT
A former State Department IT expert has refused to answer questions about his work on Hillary Clinton’s private email server, keeping its operations shrouded in mystery.
Bryan Pagliano’s laywers have said that he would remain silent during a deposition with the conservative watchdog Judicial Watch, originally scheduled for Monday but now delayed until further notice.
His decision increases the odds that Clinton herself will be forced to testify in the case.
And, because of quirks of the legal system, his decision to stay quiet could be seen as an implicit confirmation that he or the State Department had done something wrong.
Unlike in a criminal case, judges in civil cases such as Judicial Watch’s can draw inferences about someone’s guilt from a witness’s decision to plead their rights under the Fifth Amendment. For lawyers, there’s a reason to go through the motions and ask questions, even if the response is the same over and over again.
Staying silent “can be used against you,” said Peter Toren, a former federal prosecutor and partner at Weisbrod Matteis & Copley.
“It’s extremely tedious, but the fact that [a witness] took the Fifth is an inference that what I’m asking is true,” said Toren.
So even if Pagliano doesn’t say a word during the deposition, he will impact the case moving forward.
“His doing that in this context tells you something about the purpose of the system, potentially, and what was going on and whether it was a good faith issue — a matter of just folks making honest mistakes — or something more nefarious,” Tom Fitton, Judicial Watch’s head, told The Hill. “We do learn something from this, no matter what. It’s not a pro forma process. It’s not just an exercise in futility.”
“In certain circumstances, the witness taking the Fifth Amendment, you can draw some negative conclusions based on that about the State Department’s conduct, and the agency’s head — the State Department’s head —which is Mrs. Clinton,” he added.
The open records lawsuit launched by Judicial Watch is aimed at determining whether Clinton and her top staffers thwarted the Freedom of Information Act (FOIA) through her use of a personal email address and private server at her New York home.
Pagliano is believed to have set up and maintained the private server, and is likely the one man with a detailed understanding of how it worked and why.
His continued silence has fueled months of speculation about how Clinton’s email was set up, its digital security and whether it was designed to thwart transparency laws.
For Clinton, that means no relief from a political headache that has dogged her campaign for more than a year.
On Friday, Judge Emmet Sullivan postponed the testimony, in response to a request from Pagliano’s lawyers to prohibit a videotaped recording of the deposition. The judge demanded that the lawyers file a memorandum outlining the legal authority for him to plead the Fifth.
In an order last month in the Judicial Watch case, Sullivan said that Clinton could be deposed to answer questions about her server setup, depending in part on the testimony of Pagliano and six other people from her time at the State Department.
Assuming Pagliano stays quiet, the odds that she will appear go up.
“I can’t envision a scenario in which Judicial Watch doesn’t utilize this decision by Pagliano to take that next step and actually ask for Secretary Clinton to be deposed,” said Bradley Moss, a national security lawyer.
Still, an order from the judge for Clinton to testify is far from certain.
Lawyers for the Clinton and the Obama administration have made clear they don’t think the Democratic presidential front-runner’s testimony is necessary. And Clinton has given little indication that she understood anything but the most basic details of her email arrangement, making her value as a witness debatable.
“I still think they’ll have a lot of difficulty convincing Sullivan to take that step,” said Moss.
“I never would have given it more than a 15, 20 percent chance,” he said. “If the Pagliano decision had any impact, it made it go from 20 percent to 25 percent, just because it gave that small additional opening of justification that the person who actually did it — who actually was running it — refused to testify. Therefore, the only person left is the secretary.”
Fitton declined to discuss the odds of Clinton’s testifying when asked by The Hill.
Judicial Watch has asked for Clinton’s deposition in a separate but similar open records case connected to the former secretary of State’s emails.
But the Justice Department has pushed back, accusing the watchdog group of trying to expand the scope the lawsuit and of jumping the gun by refusing to wait out the depositions in the first case.
Clinton’s deposition in either case would surely turn into a media spectacle, and would loom large over the presidential campaign. For more than a year, her campaign has been unable to quell the criticism about her private server, which was amplified last week when an Inspector General report found her email arrangement broke federal rules.
Multiple lawyers contacted by The Hill said they were not surprised by Pagliano’s decision not to talk to Judicial Watch on Monday.
The IT expert had previously asserted his Fifth Amendment rights before the House Select Committee on Benghazi and reportedly had been granted immunity as part of the FBI’s investigation of possible mishandling of classified information related to the server.
Having him speak could jeopardize that deal, expose him to new legal risk or damage his future employment prospects, lawyers speculated.
“We don’t know what the scope of the immunity that Mr. Pagliano received was,” said Paul Charlton, a partner at Steptoe & Johnson and former U.S. attorney. “I suspect that whatever that immunity was — if he was in fact given immunity in the criminal investigation — may not exactly match the concerns that may come about in a FOIA civil lawsuit.”
Sullivan ordered details of the immunity agreement to be handed over as part of the memorandum that Pagliano’s lawyers file in coming days, which may shed light on the matter.
In any case, he appears unlikely to change his tune.
“Your chief concerns as counsel is to make sure you do everything you can to protect your client where the stakes are highest,” added Henry Hockeimer, a former federal prosecutor now at Ballard Spahr.
“In this case, it’s the criminal investigation.”