Bryan Pagliano’s decision — revealed on Wednesday — to plead the fifth in a Judicial Watch deposition scheduled for next week leaves a huge void in the watchdog’s efforts to get to the bottom of Hillary Clinton’s private email arrangement.
But could it open up the door to the federal judge handling the lawsuit to allow the deposition of the former secretary of state?
U.S. District Court Judge Emmet Sullivan approved limited discovery of several Clinton aides and State Department officials earlier this year in the Judicial Watch suit. He has also said that “the deposition of Mrs. Clinton may be necessary” based on what’s learned during discovery. (RELATED: Judge Says Deposition Of Hillary May Be Necessary In Judicial Watch Case)
“If Plaintiff believes Mrs. Clinton’s testimony is required, it will request permission from the Court at the appropriate time,” Sullivan has ruled.
The Bill Clinton appointee laid out a narrow set of parameters for discovery. It had to focus on the handling of Freedom of Information Act requests for Clinton and her aide Huma Abedin. Questions about the creation of Clinton’s private email server are also allowed, Sullivan ruled. (RELATED: Hillary Clinton’s IT Guru To Plead The Fifth In Judicial Watch Deposition)
The latter matter makes Pagliano a key witness.
Clinton paid the former State Department information technology specialist to manage her private email system. That involved troubleshooting problems that arose with the off-the-books system. The work flew under the radar of Pagliano’s bosses at the State Department some of whom recently told the State Department’s inspector general that they did not realize that Pagliano was moonlighting as Clinton’s server technician.
Other State Department officials who talked to the IG said that the system would not have been approved had Clinton asked for permission to operate it.
Judicial Watch president Tom Fitton tells The Daily Caller that his group has not yet decided on whether to ask Sullivan for permission to depose Clinton.
“I don’t know if we’ll make the request in this case,” he told TheDC, adding that Pagliano’s decision to plead the Fifth “is something we will deal with.”
In papers filed in court on Wednesday, Pagliano’s attorneys said that he will not testify at next week’s deposition. They also asked Sullivan to prohibit audiovisual recordings of his appearance.
In a separate statement, Fitton said that “there are credibility issues that are raised by any assertions of the of the Fifth Amendment.”
Sullivan has showed a willingness to pressure Clintonworld and the State Department to cough up information about the former secretary of state’s email system, suggesting that he might be open to ordering Clinton deposed.
“Discovery should be permitted…when a plaintiff raises a sufficient question as to the agency’s good faith in processing documents in response to a FOIA request,” he said in one ruling.
“Judicial Watch raises significant questions in its Motion for Discovery about whether the State Department processed documents in good faith in response to Judicial Watch’s FOIA request.”
In a hearing in August, Sullivan took a swipe at Clinton herself.
“We wouldn’t be here today if this employee had followed government policy,” he said from the bench. (RELATED: Federal Judge Slams Hillary’s Server Use As A Violation Of Government Policy)
Fitton was hesitant to guess at Sullivan’s thinking when Judicial Watch has yet to make a request to depose Clinton. The group has asked another federal judge, Royce Lamberth, to approve a deposition of Clinton related to its lawsuit for Obama administration talking points created after the Benghazi attacks.
Fitton said that Lamberth’s order for discovery in that case was more specific regarding the secretary of state’s conduct in the aftermath of the Sept. 11, 2012 attacks. Judicial Watch is also seeking to depose several Clinton aides, including her chief policy adviser Jake Sullivan.
Lamberth has not yet approved the depositions. But he too has been unrelenting in his criticism of the government’s handling of federal records.
“Where there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA [Freedom of Information Act] cases,” Lamberth wrote in a ruling in March.
Bradley Moss, a national security expert and attorney who handles security clearance and FOIA cases, says that Pagliano’s decision not to testify does increase the chances that Sullivan orders Clinton’s deposition, but only slightly.
“That decision almost certainly will result in Judicial Watch at least trying to subpoena Secretary Clinton for a deposition,” he told The Daily Caller.
“That said, given what has been released so far in terms of details from deposition transcripts of other individuals, I believe Judicial Watch will have to overcome a very significant hurdle to convince Judge Sullivan to pull the proverbial trigger here,” he added.
The government’s attorneys, as well as Clinton’s, will likely oppose a Judicial Watch subpoena, Moss says. They’re likely to argue that Clinton likely did not have personal knowledge of the information that Judicial Watch is seeking.
He pointed to the transcript from Cheryl Mills’ deposition as a clue to how much of a fight Clinton and the government will put up.
Released by Judicial Watch earlier this week, the transcript shows that Mills’ attorneys and those with the Justice Department attempted to hold Judicial Watch’s lawyers to the strict language of Sullivan’s discovery order by objecting to more than 200 questions. Mills’ lawyer, Beth Wilkinson, also ordered her client not to answer more than a dozen questions.
Some of those questions involved Mills’ knowledge of Pagliano’s activities.
“All signs so far point to Secretary Clinton’s involvement with the ‘creation and operation of clintonemail.com’ being at the 30,000 foot, non-tech-savvy command level and that her personal knowledge would be limited,” says Moss.
“So, all things considered, Pagliano’s decision makes it more likely that Clinton will be deposed but only ever so slightly.”