Why did Hillary’s staffer plead the Fifth?

As John noted yesterday, Bryan Pagliano, the Hillary Clinton staffer who worked on her campaign in 2008 and set up her private email server in 2009, will plead the Fifth Amendment in response to a Congressional subpoena. To the casual observer, this might seem odd. Pagliano didn’t send or receive information on the server, nor did he conceal or destroy any records. What crime might he have committed?

Shannen Coffin answers this question. He points out that it’s a federal crime to aid or abet another person’s commission of a crime. And 18 U.S.C. Section 2071(b) makes it a crime for the custodian of a federal record (which Clinton plainly was) to “willfully and unlawfully” conceal, remove, mutilate, obliterate, falsify, or destroy the same.

Thus, if Pagliano set up Mrs. Clinton’s server and assisted her in maintaining it knowing that her purpose was to conceal federal records, he too is in legal jeopardy.

It’s unlikely that Pagliano knew what Clinton’s purpose was for installing and maintaining a private server. He probably just did what he was told to do. By pleading the Fifth, Pagliano is simply being hyper-cautious.

But his plea is further indication that Hillary Clinton faces legal jeopardy, not just for sending and receiving information relating to the national defense, but also for maintaining government records on a private server in the first place. If there were “nothing to see here,” Pagliano wouldn’t be pleading the Fifth. He cannot have committed a crime in connection with the private server unless Hillary Clinton did.

At a minimum, Pagliano’s plea will add to the public’s perception that the Clinton email scandal isn’t just smoke. As Coffin puts it, “Whatever inferences can or can’t be drawn against Pagliano in a court of law [based on him taking the Fifth], nothing will stop the public from drawing reasonable inferences against Hillary Clinton in the court of public opinion.”