http://www.washingtonexaminer.com/its-fun-and-games-til-someone-takes-the-fifth/article/2571426It's fun and games 'til someone takes the Fifth
By Washington Examiner • 9/4/15 12:01 AM
The Fifth Amendment to the U.S. Constitution provides an important procedural protection for people who face prosecution. No person, it declares, may "be compelled in any criminal case to be a witness against himself."
This right does not apply only in the immediate context of a criminal trial. No judge, prosecutor, policeman, lawmaker or potentially aggrieved civil plaintiff can circumvent this protection. No one can compel someone suspected of a crime to answer potentially self-incriminating questions outside the courtroom or inside it.
A criminal defense lawyer might put it differently, but here's how we'd describe the Fifth Amendment privilege: If you believe that your answers might make your prosecution for a crime easier, you cannot be compelled to give them — not by any court and not by Congress.
So the decision by Hillary Clinton aide Bryan Pagliano to invoke this Fifth Amendment right not to testify before Congress and not to answer questions from State Department and FBI investigators is probably a wise one. If the information technology worker helped the former secretary of state set up a private email server, understanding that she would use it to hide her work emails from her government employer for several years, then the Fifth Amendment lets him avoid saying anything that might increase the odds of him being prosecuted or convicted.
That goes double if he created the system knowing that it would be used illegally to send and receive hundreds of emails containing classified and highly classified information – including 57 from the most recently released batch. Were he to testify before Congress or speak to other authorities investigating Clinton's email use, Pagliano would put himself at greater risk of taking the fall for Clinton's decision to set up the server in the first place.
Perhaps Pagliano is not truly in criminal jeopardy. Maybe he just thinks he is. People are entitled to anticipate the worst. For example, he could reasonably imagine that blame for failing to secure the email system, thus compromising so much classified information, might be laid at his feet. The Clintons' wake is littered with adherents who were sent to the slammer.
Or what if someone tries to blame him for erasing information that should have been preserved? As crazy and as unlikely as it might sound, Clinton might someday try to play dumb about technology-related matters, in which case fingers might point in Pagliano's direction. If you do not believe this possible, bear in mind that both Clinton and her campaign spokesperson have now publicly pretended that they do not know what it means to "wipe" a computer server.
Despite what some of Clinton's defenders have suggested, the Fifth Amendment is not a catch-all for those who worry about negative publicity or unfair media coverage. Only potential defendants in criminal cases can invoke the Fifth.
Clinton's choice to place herself above the law with her email arrangement is a real problem, and its legal consequences are only beginning.
