Wednesday, March 02, 2016

Hillary: Meanwhile, in the email primary


By Frances Rice
As shown in the below article, there are two big stories in The Washington Post and The New York Times about how the FBI investigation into the Hillary Clinton email scandal is just heating up. Both stories are below in full, but here are the key new pieces of information: 

  • Bryan Pagliano, the IT employee who set up Clinton’s server and pled the 5th to avoid cooperating with investigators was granted immunity for cooperating.
  • What the Clinton campaign has called a “security review,” but according to both reports, the FBI investigation has become criminal in nature. One official told The Post “There was wrongdoing.”
  • According to The Times, “F.B.I. agents have sought to compare electronic timestamps on classified sources to figure out whether the aides reviewed the sources and then retyped the information into emails that were sent or forwarded to Mrs. Clinton’s private server.”
  • Both reports said Clinton is likely to be asked to be interviewed by the Bureau in the coming months.



Meanwhile, in the email primary. . .

Hillary Clinton is no longer running against Bernie Sanders; she’s running against her emails. The emails may be gaining on her.

The Washington Post reports that the Justice Department has granted immunity to Bryan Pagliano, the former State Department staffer who worked on Clinton’s private email server. Immunity was granted to Pagliano to help investigators determine whether others higher up the food chain (including Clinton) committed crimes. As one former senior law enforcement official told the Post, “there was wrongdoing, but was it criminal wrongdoing?”

As Scott says, this is not a “security review.” Yes, the FBI’s case began as a security referral from the inspectors general of the State Department and the nation’s intelligence agencies, who were concerned that classified information might have been stored outside a secure government network. But according to the New York Times, “multiple law enforcement officials said the matter quickly became an investigation into whether anyone had committed a crime in handling classified information.”

Did Pagliano get immunity because he has information harmful to Clinton and/or others, or is the DOJ simply trying to make its investigation as complete as possible? I don’t know. However, it’s my understanding that immunity isn’t normally granted unless a witness has something valuable to offer prosecutors. As Popehat puts it (via Glenn Reynolds):

When DOJ gives someone immunity in an investigation involving my client, I generally ask for a large increase in the fee deposit.

A federal law enforcement official told the Times that barring unforeseen changes, the FBI investigation could conclude by early May. After that, the Justice Department will decide whether to file criminal charges and, if so, against whom.

According to the Times, it’s possible that in the coming weeks, the FBI will seek to question Clinton’s closest aides and maybe even the candidate herself. The Times adds;

Although defense lawyers often discourage their clients from giving such interviews, Democrats fear the refusal of Mrs. Clinton or her top aides to cooperate would be ready ammunition for Donald J. Trump, the Republican front-runner.

From Clinton’s point of view, it seems to me that the risk she will be caught lying to the FBI outweighs the political (and any other) risk of declining to be interviewed. I’m skeptical that Clinton will be prosecuted, but if she lies during the investigation, the odds of a prosecution increase. Recall that one of the factors driving the prosecution of General Petraeus was the view that he lied to investigators.

In any case, the machinations associated with the email investigation are more interesting and consequential than the remaining Democratic primaries and caucuses.