JUNE 14, 2016
(Washington, DC) – Judicial Watch today announced that a court order was issued by Judge Emmet G. Sullivan requiring the testimony of Bryan Pagliano, the Clinton State Department IT official who reportedly provided support for the Clinton email system, be videotaped during his upcoming deposition and that the transcript be made public. The court also confirmed that a Justice Department criminal investigation is underway related to the Clinton email issue.
Judge Sullivan’s “minute order” states:
MINUTE ORDER. Upon consideration of the parties’ and non-party Bryan Pagliano’s pleadings addressing the legal authority upon which Mr. Pagliano relies to assert his Fifth Amendment rights in this civil proceeding with respect to any deposition questions regarding “the creation and operation of clintonemail.com for State Department business” … the Court HEREBY ORDERS: (1) Mr. Pagliano’s … Motion for a Protective Order is DENIED. Consistent with the Court’s May 26, 2016 Minute Order and the treatment of all other deponents, Mr. Pagliano’s deposition shall be videotaped and the audiovisual of his deposition shall be sealed until further order of the Court; (2) Mr. Pagliano’s … Motion for Leave to File Under Seal is GRANTED; Mr. Pagliano’s immunity agreement with the Department of Justice shall be sealed consistent with U.S. v. Hubbard in which the D.C. Circuit identified six factors to consider when determining whether the strong presumption in favor of public access to judicial proceedings may be overcome…. Those factors include: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. Id; see also E.E.O.C. v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996). In the Court’s opinion, the need for public access to Mr. Pagliano’s agreement with the government is minimal. Mr. Pagliano’s immunity agreement has not previously been disclosed. Mr. Pagliano and the government object to disclosure of the immunity agreement. Indeed, the privacy interests at stake are high because the government’s criminal investigation through which Mr. Pagliano received limited immunity is ongoing and confidential. Mr. Pagliano’s immunity agreement with the government was filed with the Court by Mr. Pagliano solely to enable the Court to assess the legitimacy of his intent to assert his Fifth Amendment rights in this civil proceeding. The parties shall meet and confer to find a date and time for Mr. Pagliano’s deposition prior to the close of discovery.
Separately, Judge Sullivan granted Judicial Watch’s unopposed motion to obtain State records referenced in the recent State Department’s Office of the Inspector General report criticizing Mrs. Clinton’s email practices. Judicial Watch is to receive the following records by June 21, 2016:
A. March 17, 2009 memorandum prepared by S/ES-IRM staff regarding communications equipment in the Secretary’s New York residence identified a server located in the basement
B. In November 2010, Secretary Clinton and her Deputy Chief of Staff for Operations discussed the fact that Secretary Clinton’s emails to Department employees were not being received. The Deputy Chief of Staff emailed the Secretary that “we should talk about putting you on state email or releasing your email address to the department so you are not going to spam.” In response, the Secretary wrote, “Let’s get separate address or device but I don’t want any risk of the personal being accessible.
C. In another email exchange, the Director of S/ES-IRM noted that an email account and address had already been set up for the Secretary and also stated that “you should be aware that any email would go through the Department’s infrastructure and subject to FOIA searches.”
D. OIG reviewed emails showing communications between Department staff and both individuals concerning operational issues affecting the Secretary’s email and server from 2010 through at least October 2012.
E. On January 9, 2011, the non-Departmental advisor to Secretary Clinton who provided technical support to the Clinton email system notified the Secretary’s Deputy Chief of Staff for Operations that he had to shut down the server because he believed “someone was trying to hack us and while they did not get in i didnt [sic] want to let them have the chance to.” Later that day, the advisor again wrote to the Deputy Chief of Staff for Operations, “We were attacked again so I shut [the server] down for a few min.” On January 10, the Deputy Chief of Staff for Operations emailed the Chief of Staff and the Deputy Chief of Staff for Planning and instructed them not to email the Secretary “anything sensitive” and stated that she could “explain more in person.”
“Mr. Pagliano is an important witness and we’re pleased his testimony will be videotaped,” stated Judicial Watch President Tom Fitton. “We’re also pleased that the State Department has agreed to give us previously unreleased key documents about Mrs. Clinton’s email system and how it negatively impacted the Freedom of Information law.”
Previously, Judge Sullivan issued a court order delaying Pagliano’s deposition, which had been scheduled for Monday, June 6.
The court orders come in connection with a Judicial Watch Freedom of Information Act (FOIA) lawsuit that seeks records about the employment status of Huma Abedin, deputy chief of staff to former Secretary Hillary Clinton (Judicial Watch v. U.S. Department of State (No. 1:13-cv-01363 )).
The full case history of the Abedin employment lawsuit is accessible on the Judicial Watch website.