June 7 Update
I thought I would provide a quick update to what's happening with Pagliano.
His lawyers asked the judge to restrict Judicial Watch videotaping Pagliano's deposition. They told Judge Sullivan Pagliano will be pleading the Fifth.
Judge Sullivan asked Pagliano's lawyers to file their legal argument for Pagliano pleading the Fifth, and also asked them to file a copy of the immunity agreement he received from the Justice Department.
Federal immunity agreements are typically specific to witness testimony, and restricted to exactly the events under investigation. It's not a blanket get out-of-future issues card.
Pagliano's lawyers have filed the immunity agreement under seal, which isn't surprising because the publication of the specifics of the agreement could hamper the ongoing investigation.
So, it's anyone's guess whether Pagliano will be deposed or not. We may not know until next week. In the meantime, Pagliano's lawyers provided their legal argument for Pagliano claiming the Fifth. A general argument makes no sense, because it's perfectly acceptable to use the Fifth in a civil lawsuit.
And all of this is still absurd for a FOIA lawsuit.
Than Judge Sullivan is asking Judicial Watch to provide an argument why the DOJ immunity letter should be unsealed. This is crackers--it doesn't need to be unsealed, it's not relevant to Judicial Watch's lawsuit.
Bryan Pagliano, the geek who helped maintain Hillary Clinton's email server while she was in State, just wants to be left alone. No, really, he just wants to be left alone.
He invoked the Fifth when he testified in Congress, has declined to speak to the Press, he only spoke to the FBI after immunity was granted, and he's stated that he'll invoke the Fifth again when he's deposed by Judicial Watch on June 6.
In the latest court filings, Pagliano's lawyer, Connor Mullin has asked that the Judge prohibit videotaping of his pleading the Fifth on Monday, arguing that the video would not be useful since he was pleading the Fifth. As Mullin noted, videotapes are a means by which the Judge and/or juror can determine the credibility of a witness; when a person has no intention of making any assertions, credibility is moot.
Pagliano's lawyer also noted that the case is highly political in nature, an assertion corroborated by Judicial Watch's Tom Fitton numerous interviews with the media (including the one in the video related to my previous writing on the Clinton email depositions). In the filing, Mullin noted, "Mr. Pagliano is a nonparty caught up in a lawsuit with an undisputed political agenda."
Judicial Watch replied the usual, about videotapes being necessary for judge and jury to determine credibility, yada, yada, yada. But it stepped around the possibility that it could prevail on the court to release the videotape for public viewing in the future, which has been everyone's concern about appearing in videotaped depositions.
The reply also expressed umbrage at the assertion that the lawsuit is political in nature:
Finally, this motion represents the second time in the past week that a former State Department employee has attacked Plaintiff’s motives in pursuing this case and in conducting discovery. See Motion at 2 (describing this as “a lawsuit with an undisputed political agenda”). As the Court has stated, this case is about the public’s “right to know details related to the creation, purpose and use of the clintonemail.com system.” Plaintiff has proceeded professionally and cautiously at each stage of this litigation. These attempts to impugn Plaintiff’s integrity are unwarranted and inappropriate
That Judge Sullivan buys into this line isn't unusual for this Judge, about which I'll have more to say in a future writing. But I think we've seen with Fitton's actions outside the court, as well as the questions asked in the Cheryl Mills' deposition, that this exercise has nothing to do with the FOIA, and everything to do with politics. We are not so naive as to believe otherwise.
There's a very real risk of these videotapes being misused by Judicial Watch and other parties. Judicial Watch has already mischaracterized and misrepresented statements Cheryl Mills made in her deposition. If, instead of text, Judicial Watch was able to provide a news organization, such as Fox, with carefully selected sound bites, even the most innocuous answer could be twisted into a damning claim. Taking bits and pieces out of textual transcript does not have the same impact as a video.
True, fact checkers could dig more deeply and show that the statements were misrepresented...but by that time, the damage is done. Not just the political damage, but also the personal damage to the people who have all been dragged into this farce of an exercise.
And that leads us back to Bryan Pagliano.
Pagliano is a geek. He's not a token geek, or a weekend geek, or a geek that dabbles in technology as a hobby. He's a professional who primarily works close to the metal—meaning he works with server-side technologies, security, complex systems, and Internet of Things (IoT).
I've also been in technology, for over 25 years. I've known the Paglianos in the tech world. You might find a rare one who would love to be in the center of this manufactured fooflah, and who would enjoy participating in the mockery which is discovery in the Judicial Watch's lawsuit. For the most part, though, these are not the type of people who are willing to have anything to do with any of this. They would be suspicious of the efforts, of the questions, and of the people.
That Pagliano is wary about any and all of this is understandable when you consider there are dozens of lawsuits related to FOIA requests for Clinton emails. Toss in the FBI, the Office of Inspector General, Congress and its endless hearings, emails classified after the fact, and a media that doesn't always live up to the highest standards of journalist integrity, and it's no surprise that he literally wants to pull into a shell until it all just goes away.
Pagliano invoking the Fifth did not surprise me. That he'll continue to do so, does not surprise me. He'll continue to do so until everyone leaves him alone.
Judicial Watch has already demonstrated an inability to stay within the narrow confines for discovery allowed by Judge Sullivan. As Pagliano's lawyer's recent filing notes, there is no question that can be asked that Pagliano won't refuse to answer, given the narrow scope.
Because once he answers one question—even the most innocuous seeming question, and gives the most innocent answer—it will never end for him. He'll be dragged into court, and dragged into Congress, and hounded. His professional and personal life will suffer, perhaps permanently.
All he did was set up a server and maintain it. One shouldn't have one's life destroyed for such a simple act.
Judge Sullivan has demanded a copy of Pagliano's immunity agreement with the FBI. According to the Order:
The deposition of non-party Bryan Pagliano is hereby postponed until further order of the Court. Counsel for Mr. Pagliano shall file a Memorandum of Law addressing the legal authority upon which Mr. Pagliano relies to assert his Fifth Amendment rights in this civil proceeding, including requisite details pertaining to the scope of Mr. Pagliano's reported immunity agreement with the Government. Mr. Pagliano's Memorandum of Law, along with a copy of his reported immunity agreement, shall be filed no later than Tuesday, June 7, 2016 at 5:00 p.m. The parties are ordered to file responsive memoranda of law no later than Friday, June 10, 2016 at 12:00 p.m. Mr. Pagliano shall file a reply memorandum no later than Monday, June 13, 2016 at 5:00 p.m. Signed by Judge Emmet G. Sullivan on June 3, 2016.
No surprise on this. But this whole thing is absurd for a FOIA lawsuit. Astoundingly absurd.