Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email server. Pagliano previously asserted his Fifth Amendment privilege against self-incrimination in both congressional and Justice Department/FBI investigations. He was given use immunity by DOJ/FBI to provide information regarding their investigation into whether the use of the email server by Clinton or others violated laws against the disclosure or mishandling of classified information.

Although the criminal investigation into Clinton’s handling of classified information terminated with FBI Director Comey’s public statement a couple of months ago, COGR says it is continuing to investigate this issue as well as other matters that the FBI investigation did not address. Specifically, the contempt report indicates that COGR’s ongoing investigation includes:

(1) seeking information about former Secretary Hillary Clinton’s use of a private, non-secure email server during her time at the Department of State, as well as the transmittal of classified national security information on that server; (2) examining the circumstances that resulted in the failure to preserve federal records arising during Secretary Clinton’s tenure, as required by the Federal Records Act, and to produce such records pursuant to Congressional requests or request made pursuant to the Freedom of Information and; (3) determining what, if any, changes to the Federal Records Act of 1950, Freedom of Information Act of 1966, Ethics in Government Act of 1978, or any other federal law(s) may be necessary to prevent these or similar circumstances from recurring.

No one, I think, would seriously dispute that these are proper matters for the committee to investigate, nor that Pagliano is a witness with information relevant to them.

Instead, the question is whether Pagliano, having informed COGR through his attorney that he will continue to assert his Fifth Amendment privilege with respect to any questions that the committee asks him about these issues, was required to appear at a hearing to assert the privilege in person. Citing legal ethics opinions, Pagliano’s attorneys at Akin Gump contend that Pagliano is not required to appear at an open hearing, although they said that he was willing to appear at a closed session. Backed by committee Democrats, they argue that requiring Pagliano to appear “in front of video cameras six weeks before the presidential election, betrays a naked political agenda and furthers no valid legislative aim.”

This is not a new issue. Congressional committees have been faced with such objections for decades, at least since a 1977 DC Bar opinion that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination.

Inherent in this objection is the idea that the only reason for requiring a witness to take the Fifth in a public setting is a committee’s desire for a “photo op” and the accompanying political benefit of embarrassing the witness before the cameras. However, in a more recent opinion, issued in 2011, the DC Bar found that the 1977 opinion “does not establish a per se rule that compelling a witness to testify before a congressional committee when it is known in advance that the witness will invoke the Fifth Amendment privilege violates the ethics rules.” Instead, it merely “provides that an attorney violates the ethics rules only when he knows that summoning a witness to appear (1) will provide no information to the committee and (2) is intended merely to degrade a witness.”

There are two problems with these DC Bar opinions. The most fundamental is that the DC Bar simply has no authority to regulate the functioning of Congress or congressional committees. See, e.g., Cong. Research Serv., Memorandum of Apr. 3, 1990, re “Requiring the Testimony in Open Hearing of a Witness Who Intends to Invoke the Privilege Against Self-Incrimination” (cited in Michael Stern, Ethical Obligations of Congressional Lawyers, 63 NYU L. Rev. 191, 208 n. 60 (2007)) (noting that the “recommendations” of the DC Bar were “not binding on Congress”). Indeed, the DC Bar acknowledges that it has no power to regulate the conduct of members of Congress (even in the rare instance where a member happened to belong to the DC Bar). It only purports to provide ethical guidance to committee counsel (and, even then, presumably only when such counsel belongs to the DC Bar).

Even if the DC Bar had some authority here, however, its purported standard makes no sense. Because the Fifth Amendment privilege must be invoked by a witness personally and on a question by question basis, there is no way for the committee to know for certain whether it will receive “no information” from questioning a witness. There have been instances where witnesses have initially asserted an intention to invoke the privilege but later changed their minds.

Moreover, the “intended merely to degrade a witness” standard is completely unworkable if not incomprehensible. I doubt any committee believes that this is its sole reason for calling a witness, and it certainly isn’t going to admit it if it did. In this case, Chairman Chaffetz advised Akin Gump that COGR insisted on Pagliano’s appearance because “(1) the possibility he would waive or choose not to assert the privilege as to some or all questions; (2) the possibility that the Committee would agree to hear his testimony in executive session; and (3) the possibility that the Committee would seek, pursuant to 18 U.S.C. 6005, to obtain a court order immunizing his testimony.” Not coincidentally, these are precisely the reasons discussed in the DC Bar opinion as permissible reasons for requiring a witness to appear at a public hearing despite a stated intent to invoke the privilege against self-incrimination.

No doubt Pagliano’s lawyers and the COGR minority believe, or at least will argue, that these are not Chaffetz’s “real” motivations. There is nothing easier than arguing that a politician’s true motivation is “political.” For example, earlier this year Charles Tiefer, who served as deputy general counsel and acting general counsel to the House in the late 1980s and early 1990s, wrote that “a witness like Pagliano would be very well advised to invoke the Fifth Amendment, because the committees act in a blatantly and aggressively partisan way and do not behave at all fairly with witnesses.” (Apparently House committees only became “partisan” after Tiefer left).

Assuming that these charges of politics or partisanship are germane to whether the committee has a proper motivation for calling a witness, who is going to adjudicate that issue? The courts will not do so, having long made it clear that they do not determine the validity of legislative investigations by scrutinizing the motives of legislators. See Watkins v. United States, 354 U.S. 178, 200 (1957) (noting that Congress has no power to “expose for the sake of exposure,” but “a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.”)

Although no court has addressed the precise question, analogous authority indicates that witnesses have no right to refuse to appear on the basis asserted by Pagliano:

Generally, “a witness before a congressional committee must abide by the committee’s procedures and has no right to vary them or to impose conditions on his willingness to testify.” At an open hearing, this includes the presence of crowds, microphones, and television cameras. The first step entails showing up in person and not by proxy because a witness’s prior indication that he will assert his privilege against self-incrimination does not in any way preclude a committee from subpoenaing the witness and having him formally invoke the privilege.

Roberto Iraola, Self-Incrimination and Congressional Hearings, 54 Mercer L. Rev. 939, 962-63 (2003) (quoting United States v. Orman, 207 F.2d 148, 158 (3d Cir. 1953) and citing other authorities).

As a matter of policy, the House could no doubt decide that a witness is excused from appearing when he has definitively stated his intent to invoke the privilege against self-incrimination. However, the House has never taken this position. Instead, it has left the question of whether the witness must appear to the discretion of the committee or subcommittee which called him, and they have frequently if not invariably required personal appearance to invoke the privilege. See Iraola, 54 Mercer L. Rev. at 963 n. 121. Martin Shkreli is a recent example of a witness who was required to personally invoke the Fifth before COGR. Presumably no one in the House, including the committee minority, believes that he should have been excused from appearing because he questioned the committee’s motives for calling him.

In short, during periods of both Republican and Democratic control, the House has repeatedly rejected the notion that a witness has the right to decide not to appear because of an asserted intent to invoke the privilege. Going back at least to Tiefer’s time, moreover, the House has specifically and consistently rejected the proposition that bar ethics rules constitute a legal basis for a witness to refuse to appear.

I still think Congress should give Pagliano immunity, but that is its decision. In the meantime, Pagliano can continue to assert his Fifth Amendment privilege (however far-fetched this risk of incrimination is at this point), but he cannot refuse to appear.


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