Attorneys for a former State Department staffer who helped set up Hillary Clinton’s private email server said Tuesday that he was granted limited immunity by federal prosecutors in an ongoing Justice Department investigation and not shielded from prosecution in connection with other matters.
The disclosure came as Bryan Pagliano met a court deadline to disclose details of the agreement after he sought to invoke his Fifth Amendment right against self-incrimination to avoid answering questions in a civil open-records lawsuit brought by the conservative group Judicial Watch.
Pagliano’s attorneys, led by Mark J. MacDougall, filed the agreement under terms that it be sealed from all but U.S. District Judge Emmet G. Sullivan of Washington.
In an accompanying filing, they explained that Pagliano entered into “use and derivative use” agreements with the Justice Department shortly after approaching it in December 2015 with a proposal to give testimony.
The agreements do not give Pagliano blanket immunity in what The Washington Post reported in March was part of an ongoing FBI criminal investigation into the possible mishandling of classified information related to Clinton’s email setup while she was secretary from 2009 to 2013. Instead, such deals typically prohibit prosecutors from using evidence against a witness developed from his own testimony — but not evidence obtained independently.
“The DOJ has not authorized a grant of immunity for Mr. Pagliano in connection with any other matter, including this civil case,” Pagliano’s attorneys said, adding that “the U.S. Government counsel responsible for the investigation” — which they did not otherwise describe — consented to releasing the agreement under seal.
Judicial Watch subpoenaed Pagliano to give sworn testimony in a deposition Monday in a lawsuit probing whether Clinton’s email arrangement thwarted the Freedom of Information Act and the release of public records.
Pagliano, who worked on Clinton’s 2008 presidential campaign before setting up the server in her New York home in 2009, stated his intention to the court last week to decline to answer questions.
Sullivan on Friday postponed Pagliano’s deposition and directed both sides to address the legal authority for his constitutional claim by Monday.
Pagliano’s attorneys Tuesday said case law establishes such a right for people not named in civil lawsuits but who face a “reasonable fear of prosecution.”
“Mr. Pagliano’s prospective deposition will inevitably cover matters that might ‘furnish a link in the chain of evidence needed to prosecute,’ ” they wrote, adding that “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 a similar subject matter.”
“It is unfortunate the public’s right to know is being hampered,” Judicial Watch President Tom Fitton said in a statement.
Sullivan did not rule on Pagliano’s request to bar audio or video recording of the deposition, which his attorneys argued would serve no purpose because he planned to not answer questions, and would raise “the considerable risk of abuse” and being leaked in a lawsuit with “an undisputed political agenda.”
Judicial Watch opposed the request, saying an existing court order seals video records and that recording the deposition would help Sullivan assess Pagliano’s demeanor and credibility.
Pagliano is one of half-dozen former State Department and Clinton aides ordered by Sullivan to give sworn testimony in a lawsuit concerning Judicial Watch’s 2013 public-records request for information concerning Clinton aide Huma C. Abedin’s employment arrangement.