The Justice Department has granted immunity to a former
State Department staffer, who worked on Hillary Clinton’s private email server,
as part of a criminal investigation into the possible mishandling of classified
information, according to a senior law enforcement official.
The official said the FBI had secured the cooperation of
Bryan Pagliano, who worked on Clinton’s 2008 presidential campaign before
setting up the server in her New York home in 2009.
As the FBI looks to wrap up its investigation in the coming
months, agents are likely to want to interview Clinton and her senior aides
about the decision to use a private server, how it was set up, and whether any
of the participants knew they were sending classified information in emails,
current and former officials said.
The inquiry comes against a political backdrop in which
Clinton is the favorite to secure the Democratic nomination for the presidency.
Confused about the investigations around Hillary Clinton?
Here are the basics.
So far, there is no indication that prosecutors have
convened a grand jury in the email investigation to subpoena testimony or
documents, which would require the participation of a U.S. attorney’s office.
Spokesmen at the FBI and Justice Department would not
discuss the investigation. Pagliano’s attorney, Mark J. MacDougall, also
declined to comment.
In a statement, Brian Fallon, a spokesman for the Clinton
campaign, said: “As we have said since last summer, Secretary Clinton has been
cooperating with the Department of Justice’s security inquiry, including
offering in August to meet with them to assist their efforts if needed.”
He also said the campaign is “pleased” that Pagliano, who
invoked his Fifth Amendment rights before a congressional panel in September,
is now cooperating with prosecutors. The campaign had encouraged Pagliano to
testify before Congress.
As part of the inquiry, law enforcement officials will look
at the potential damage had the classified information in the emails been
exposed. The Clinton campaign has described the probe as a security review. But
current and former officials in the FBI and at the Justice Department have said
investigators are trying to determine whether a crime was committed.
Clinton has come under fire for using a private e-mail
address during her time as secretary of state. The emails are being screened
and released in batches. Here are some things we’ve learned from them.
Clinton has since apologized for what happened: “Yes, I should
have used two email addresses, one for personal matters and one for my work at
the State Department. Not doing so was a mistake. I’m sorry about it, and I
take full responsibility.”
Any decision to charge someone would involve Attorney
General Loretta E. Lynch, who told Congress when asked last month about the
email inquiry: “That matter is being handled by career independent law
enforcement agents, FBI agents, as well as the career independent attorneys in
the Department of Justice. They follow the evidence, they look at the law and
they’ll make a recommendation to me when the time is appropriate.”
She added, “We will review all the facts and all the
evidence and come to an independent conclusion as how to best handle it.”
Current and former officials said the conviction of retired
four-star general and CIA director David H. Petraeus for mishandling classified
information is casting a shadow over the email investigation.
The officials said they think that Petraeus’s actions were
more egregious than those of Clinton and her aides because he lied to the FBI,
and classified information he shared with his biographer contained top secret
code words, identities of covert officers, war strategy and intelligence
capabilities. Prosecutors initially threatened to charge him with three
felonies, including conspiracy, violating the Espionage Act and lying to the
FBI. But after negotiations, Petraeus pleaded guilty to a misdemeanor charge of
mishandling classified information..
He was fined $100,000 and sentenced to two years of
probation. FBI officials were angered by the deal and predicted it would affect
the outcome of other cases involving classified information.
Petraeus “was handled so lightly for his offense there isn’t
a whole lot you can do,” said a former U.S. law enforcement official who
oversaw counterintelligence investigations and described the email controversy
as “a lesser set of circumstances.”
The State Department has been analyzing the contents of
Clinton’s correspondence, as it has prepared 52,000 pages of Clinton’s emails
for public release in batches, a process that began in May and concluded
Monday. The State Department has said 2,093 of Clinton’s released emails were
redacted in all or part because they contained classified material, the vast
majority of them rated “confidential,” the lowest level of sensitivity in the
classification system.
Clinton and the State Department have said that none of the
material was marked classified at the time it was sent. However, it is the
responsibility of individual government officials to properly handle sensitive
material.
The email investigation is being conducted by FBI
counterintelligence agents and supervised by the Justice Department’s National
Security Division.
In a letter filed last month in federal court as part of
ongoing civil litigation over Clinton’s emails, the FBI confirmed that it was
“working on matters related to former Secretary Clinton’s use of a private
email server.” The agency declined to publicly detail the investigation’s
“specific focus, scope or potential targets.”
On Tuesday, FBI Director James B. Comey said he was “very
close” to the investigation.
Former federal prosecutor Glen Kopp said it is not
surprising that agents want to interview Clinton and her aides.
“They are within the zone of interest of the investigation,”
he said.
A request to interview her would have to be reviewed by top
level officials at both the FBI and the Justice Department, a former official
said.
As part of those interviews, the FBI would also seek to
establish that Clinton and her aides understood the policies and protocols for
handling classified information, former officials said.
Clinton’s attorney, David Kendall, declined to comment.
Kendall, who also has represented President Bill Clinton and
Petraeus, has navigated similar issues in other cases. During the investigation
of President Clinton by independent counsel Ken Starr, for instance, Kendall
rebuffed several requests for interviews.
[Hillary Clinton’s incomplete timeline on her personal
e-mail account]
The president was then subpoenaed to appear before a grand
jury. In a deal brokered by Kendall, the subpoena was withdrawn and Clinton
testified voluntarily in 1998.
Former prosecutors said investigators were probably feeling
the pressure of time because of the election. Take action before the election,
they said, and you risk being perceived as trying to influence the result. Take
action after and face criticism for not letting voters know there was an issue
with their preferred candidate.
“The timing is terrible whether you do it before or after,”
Kopp said.
The issue of Clinton’s use of a private email server was
referred to the FBI in July after the Office of the Inspector General for the
Intelligence Community determined that some of the emails that traversed
Clinton’s server contained classified material.
Emails that contain material now deemed classified were
authored by Clinton but also by many of her top aides, including Jacob
Sullivan, who was her director of policy planning and her deputy chief of
staff. He is now advising Clinton’s campaign on foreign policy and is thought
to be a likely candidate for national security adviser if she is elected
president.
The State Department has said that, at the request of
intelligence agencies, it has classified 22 Clinton emails as “top secret” and
will not release those emails, even in redacted form. “Top secret” is the
highest level of classification, reserved for material whose release could
cause “exceptionally grave damage to the national security.”
I. Charles McCullough III, the inspector general of the
intelligence community, has indicated that some of the material intelligence
officials have reviewed contained information that was classified at the time
it was sent; the State Department has indicated that it has not analyzed
whether the material should have been marked classified when it was sent, only
whether it requires classification before being released now......
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