Immunity For Hillary Clinton’s “Smoking Gun”?

In a development that could end the campaign of Democratic presidential candidate Hillary Clinton, top Senate investigators into the email scandal are considering a grant of immunity to Bryan Pagliano, the computer whiz that Clinton hired to set up the private and insecure email server in her Chappaqua, New York home in exchange for testimony about her activities.

Mr. Pagliano, a low level but potentially explosive witness in the investigation into Clinton’s server, said last week that he would exercise his Fifth Amendment right against self-incrimination if he were subpoenaed by the Senate to testify in the matter without a grant of immunity.

Senate Judiciary Chairman Chuck Grassley (R-IA) and Senate Homeland Security Chairman Ron Johnson (R-WI) – the two key committees investigating the former Secretary of State’s private email server – have said they have the authority to grant immunity to Mr. Pagliano if he is willing to talk.

To advance the investigation, the two Senators have proposed a “Queen for a Day” proffer session where Mr. Pagliano would let them know what he knows without consequence in an off-the-record setting so all sides could decide how to proceed. In a letter to Mr. Pagliano’s lawyer, the two Senators said:

“The Committees have the authority to obtain an immunity order, to acquire the information they need, while also protecting your right against self-incrimination.”

If the Senators grant immunity to Mr. Pagliano he would have no reason to exercise his Fifth Amendment right against self-incrimination because he could not be prosecuted for any crimes he may have committed – known or unknown.

For her part, Mrs. Clinton has insisted that she complied with all laws when operating the server, did not send or receive classified communications using the server and that she turned over 30,000 pages of work related emails – as she defined them – a full two-years after the law required her to do so.

As the heat over the server, which was seized by the Federal Bureau of Investigation (FBI) for forensic analysis, increases, Mrs. Clinton first refused to apologize for setting up her own server and then reversing herself earlier this week in an interview with Andrea Mitchell of ABC News. In a terse response to a question about the server, Mrs. Clinton said:

“That was a mistake. I’m sorry about that. I take responsibility.”

Critics have commented that taking “responsibility” for breaking the law without consequence shows contempt for the law and lends credence to the charge that Mrs. Clinton sees herself as above the law.

Normally a liberal politician booster, The New York Times reported this week that a new review by the inspector general for the intelligence community has concluded two messages did contain information that was top secret at the time.

Continuing examination of the server by the FBI has turned up an estimated 150 more highly classified documents including top-secret satellite imagery, privileged communications between foreign diplomats and government officials with the United States, and other sensitive documents.

For his part, Mr. Pagliano was paid by Mrs. Clinton’s political operation through early 2009 who then shifted over to the State Department where he was an information technology specialist. At the same time, he was paid by Mrs. Clinton’s campaign to install and maintain the server she kept at her New York home.

Now it looks like the dam may be about to break.

In a letter obtained by POLITICO, Bryan Pagliano’s lawyer Mark MacDougall told Senator’s Grassley and Johnson that he would give no such preliminary overview (proffer) so the Senators could gain a better idea of what Pagliano knew about Clinton’s private server.

MacDougall said that a proffer session about what Pagliano was not a grant of immunity, is custom rather than law and that answering questions could be used to claim that his client had “waived his right” to avoid self-incrimination. In his letter, MacDougall said:

“Members of congressional committees and their lawyers have lately taken an expansive view of what constitutes a waiver by an individual citizen of his or her right under the Fifth Amendment.”

“Any ‘proffer session’ or other disclosure by Mr. Pagliano – or his lawyers acting on his behalf — of the contents of his possible testimony creates the very practical risk that our client will later be said to have waived his constitutional protections.”

“We cannot set the stage for such an episode by engaging in the kind of discussion with the committees’ staff as suggested in your letter.”

“Given the plain language of the governing statute, and in the absence of any facts to suggest that an order of immunity may be issued to our client by a U.S. district court any time soon, there is no basis for a ‘proffer session’ or similar extra-legal exercise with the committees’ staff,” the letter said.

Political observers note that such legal back and forth often times means that the sides are coming closer to an immunity deal. If Mr. Pagliano is granted immunity, which many expect, his potentially damaging testimony could blow the wheels of Hillary Clinton’s second attempt to win the Democratic nomination and the White House next year.