The Department of Justice has granted “immunity” to a former State Department employee who worked on Hillary Clinton’s private email server. Bryan Pagliano initially invoked his Fifth Amendment right against self-incrimination and would not testify. Of course, the Department of Justice, known to defense attorneys simply as the “government,” has many ways of getting people to talk.
The big question is whether there is a grand jury convened. The smart bet is yes. After all, the fact that there are immunity agreements logically means there’s a grand jury investigation in some district. The grand jury is typically the genesis of the government’s subpoena power. The next, bigger question, is whether anyone will be indicted.
The mere fact that the DOJ wants to talk to Pagliano does not mean anyone will be indicted. But if the DOJ is investigating criminal activity, they tend to find criminal activity.
In general, when the government wants to talk to someone, the person falls into one of three categories: target, subject, or witness.
If Pagliano was a “target,” that generally means the prosecutor or grand jury has significant evidence connecting the person to a crime. Targets routinely become defendants. A “subject” is a midrange status; this person is part of the investigation but not quite a target; a precarious position to be in. A “witness” is a person who has valuable information, but is not (currently) believed to have committed a crime. However, “witnesses” matriculate up to “targets” very quickly, often because of the very information they provide.
For witnesses and defense attorneys alike, the decision whether or not to talk to the government is a difficult one. For the most part, there’s a lot of risk, without a lot of upside.
There have been reports that the witness has been granted “immunity.” To many, that sounds like a good thing for Pagliano. After all, immunity means immunity, right? When does immunity not mean immunity?
Answer: it depends on the immunity. Consistent with the tradition of nebulous legalese, there are different kinds of immunity. “Informal” immunity is the brand preferred by U.S. Attorneys. It’s a written letter agreement in which the particular U.S. Attorney’s Office investigating and prosecuting the case (and only that office) promises to not charge the witness in exchange for the witness’s truthful testimony.
The problem with this kind of “letter” immunity is the fine print. It’s usually favorable to the government. For example, often the government can use derivative information. If your information leads to other information about the location of other evidence against you, that derivative information can be used against you—apart from the statement. Additionally, if the government obtains information completely independent of the witness’s testimony, it can prosecute the witness too.
Formal immunity, also called “statutory” immunity, is far more appealing to defendants. It offers more protection than letter immunity, and explicitly prohibits derivative use of the witness’s testimony. As you can imagine, though, the government is notoriously miserly when it comes to negotiating or even offering immunity. Pagliano’s exposure will depend on what he knows and did, but also on what specific kind of immunity deal he and his lawyers negotiated.
So former Clinton staffers the government wants to talk to have a number of tough decisions to make. First, they have to realistically evaluate their conduct, and assume, as with most cases, that the government knows far more than one might expect. Indeed, the government frequently knows more than the person they actually want to talk to. They are good at what they do; it’s no accident that the federal conviction rate is well above 90%.
So, even if Pagliano honestly believes he did nothing wrong, that doesn’t mean the government shares that view. If there’s any potential liability, then the immunity agreement becomes critical.
Talking to the government, or giving a “proffer,” relinquishes the few advantages a defendant has: He gives up his constitutional privilege against self-incrimination, and more, he gives the government the defense’s version of the case up front.
While Pagliano is surely in an unenviable, nail-biting position, we can draw some inferences from recent events. Whether he had zero potential liability, or some liability, he’s probably not a “target.” Why? Because if he were, his attorney would probably not let him talk to the government, and the government would probably not give him immunity. Remember, the government is parsimonious with immunity deals. Another, less reliable inference may be drawn not about Pagliano, but others who are not Pagliano.
The person who often has to worry the most during this process is the person who hasn’t been approached at all by the government. That’s a chilling indicator that you may be the target.