Disclosures that the aide who set up Hillary Clinton’s private email server has refused to cooperate with investigators on Fifth Amendment grounds mark an ominous new turn for the Democratic presidential frontrunner as she fights allegations she mishandled classified information while secretary of state.
One former Republican U.S. attorney predicted Thursday that the development will compel the Justice Department to set aside the FBI’s limited inquiry into whether Clinton’s emails breached national security, empanel a federal grand jury and conduct a criminal investigation.
“Obviously, if he’s not going to cooperate, all of these people who were on her email are all going to get subpoenas now,” Joseph diGenova said. “It is fairly abundant that the setting up of the server – unencrypted, without State Department input – was done partially surreptitiously. And this gentleman who was part of that process could be criminally exposed for violating the espionage statutes, especially for the grossly negligent handling of classified information, which is a 10-year felony.”
The former Clinton aide, Bryan Pagliano, was subpoenaed on Aug. 11 to testify and produce documents about Clinton’s server to a House panel investigating the 2012 fatal attacks on U.S. facilities in Benghazi, Libya.
Last December, Clinton turned over to the State Department 30,490 official emails that had been stored on the server, but said she had deleted more than 31,000 other personal emails, without State Department review. The disclosure set off a political and legal uproar that has shaken what many considered her unbeatable candidacy for the party’s presidential nomination.
In a letter to the panel on Monday, Pagliano’s Washington attorney, Mark MacDougal, said Pagliano had accepted his advice to reject the committee’s requests on constitutional grounds. The letter was first disclosed by The Washington Post.
On Thursday, Yahoo News reported that Pagliano had similarly invoked his Fifth Amendment rights with investigators for the FBI and the State Department’s Office of Inspector General.
The development puts Justice Department lawyers in a position of having to decide whether to grant Pagliano immunity from prosecution in return for his cooperation, a decision that only can occur in a criminal investigation.
In a column in USA Today on Thursday, an ex-Justice Department official, who oversaw an investigation into whether former Army Gen. David Petraeus mishandled classified information while commanding U.S. troops in Afghanistan, rose to Clinton's defense. No evidence has surfaced that Clinton knowingly transmitted classified material, wrote Anne Thompkins, who led the inquiry while U.S. attorney for the Western District of North Carolina.
Petraeus, who ultimately pleaded guilty to a misdemeanor charge, knowingly mishandled “code word” national defense information, including the identities of covert officers, war strategy and intelligence capabilities, she said.
But Thompkins said Clinton is not being investigated for knowingly transmitting classified material and “there has been no evidence of criminal conduct” in her case.
DiGenova, however, said that despite Clinton’s protestations that the material was not marked as classified, the relevant criminal laws make no mention of markings.
“What matters is, is it classified information?” he said. “When she has conversations about a foreign official, that is classified automatically. What they have to show is that she was grossly negligent in handling it or storing it or transmitting it or possessing it. She was all of that.”
As U.S. attorney for the District of Columbia from 1983 to 1987, diGenova prosecuted Israeli spy Jonathan Pollard. He said he still has a security clearance above top secret because he represents clients in national security cases.
“When people like this little guy start taking the fifth,” diGenova said, “it means that a lot of other people along the way are going to do the same thing. This happened because she wanted to have an unencrypted server to protect her privacy, and in the course of doing that, she compromised national security information for four years, whether she wants to admit it or not.”
A spokesperson for the Justice Department declined comment. Clinton’s campaign declined to respond to requests for comment, but Yahoo News quoted campaign spokesman Nick Merrill as saying: “We have been confident from the beginning that Hillary Clinton’s use of a personal email was allowed and that she did not send or receive anything marked classified. … She has made every effort to answer questions and be as helpful as possible, and has encouraged her aides, current and former, to do the same, including Bryan Pagliano.”
CORRECTION This version corrects spelling of Israeli spy Jonathan Pollard