[House Report 114-792]
[From the U.S. Government Publishing Office]
House Calendar No. 152
114th Congress
2d Session HOUSE OF REPRESENTATIVES Report
114-792
_______________________________________________________________________
RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND BRYAN
PAGLIANO IN CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA
DULY ISSUED BY THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
__________
R E P O R T
OF THE
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
TOGETHER WITH
MINORITY VIEWS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 27, 2016.--Referred to the House Calendar and ordered to be
printed
U.S. GOVERNMENT PUBLISHING OFFICE
59-006 WASHINGTON: 2016
C O N T E N T S
----------
Page
I. EXECUTIVE SUMMARY................................................2
II. AUTHORITY AND PURPOSE............................................2
III. BACKGROUND ON THE COMMITTEE'S INVESTIGATION......................4
IV. MR. PAGLIANO'S REFUSAL TO COMPLY WITH THE COMMITTEES SUBPOENA FOR
TESTIMONY AT THE SEPTEMBER 13, 2016 HEARING......................5
V. MR. PAGLIANO'S REFUSAL TO APPEAR WHEN THE HEARING RESUMED ON
SEPTEMBER 22, 2016...............................................6
VI. CONCLUSION.......................................................6
VII. REPORTING REQUIREMENTS...........................................7
VIII.MINORITY VIEWS..................................................11
IX. APPENDIX........................................................19
Invitation from Chairman Jason Chaffetz, Chairman of the
Committee on Oversight and Government Reform, to Mr.
Mark J. MacDougall, Esq., Attorney for Mr. Bryan
Pagliano, September 7, 2016.......................... 19
Letter from Mr. Mark J. MacDougall, Esq., Attorney for
Mr. Bryan Pagliano, to Chairman Jason Chaffetz,
Chairman of the Committee on Oversight and Government
Reform, September 12, 2016........................... 26
Letter from Mr. Mark J. MacDougall, Esq., Attorney for
Mr. Bryan Pagliano, to Chairman Jason Chaffetz,
Chairman of the Committee on Oversight and Government
Reform, September 12, 2016........................... 28
Letter from Chairman Jason Chaffetz, Chairman of the
Committee on Oversight and Government Reform, to Mr.
Mark J. MacDougall, Esq., Attorney for Mr. Bryan
Pagliano, September 12, 2016......................... 29
Letter from Mr. Mark J. MacDougall, Esq., Attorney for
Mr. Bryan Pagliano, to Chairman Jason Chaffetz,
Chairman of the Committee on Oversight and Government
Reform, September 13, 2016........................... 31
Letter from Chairman Jason Chaffetz, Chairman of the
Committee on Oversight and Government Reform, to Mr.
Mark J. MacDougall, Esq., Attorney for Mr. Bryan
Pagliano, September 15, 2016......................... 33
Letter from Mr. Mark J. MacDougall, Esq., Attorney for
Mr. Bryan Pagliano, to Chairman Jason Chaffetz,
Chairman of the Committee on Oversight and Government
Reform, September 21, 2016........................... 37
Letter from Mr. Mark J. MacDougall, Esq., Attorney for
Mr. Bryan Pagliano, to Chairman Jason Chaffetz,
Chairman of the Committee on Oversight and Government
Reform, September 21, 2016........................... 40
Letter from Chairman Jason Chaffetz, Chairman of the
Committee on Oversight and Government Reform, to Mr.
Mark J. MacDougall, Esq., Attorney for Mr. Bryan
Pagliano, September 22, 2016......................... 42
House Calendar No. 152
114th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 114-792
======================================================================
RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND BRYAN
PAGLIANO IN CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA
DULY ISSUED BY THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
_______
September 27, 2016.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
The Committee on Oversight and Government Reform, having
considered this Report, report favorably thereon and recommend
that the Report be approved.
The form of the resolution that the Committee on Oversight
and Government Reform would recommend to the House of
Representatives for citing Bryan Pagliano for contempt of
Congress pursuant to this report is as follows:
Resolved, That because Mr. Bryan Pagliano, having been
compelled to testify touching matters of inquiry committed to
the House Committee on Oversight and Government Reform, refused
to testify before the Committee, Mr. Pagliano shall be found to
be in contempt of Congress for failure to comply with a
congressional subpoena.
Resolved, That pursuant to 2 U.S.C. 192 and 194, the
Speaker of the House of Representatives shall certify the
report of the Committee on Oversight and Government Reform,
detailing the refusal of Mr. Pagliano to testify before the
Committee on Oversight and Government Reform as directed by
subpoena, to the United States Attorney for the District of
Columbia, to the end that Mr. Pagliano be proceeded against in
the manner and form provided by law.
Resolved, That the Speaker of the House shall otherwise
take all appropriate action to enforce the subpoena.
I. EXECUTIVE SUMMARY
Mr. Bryan Pagliano, formerly a Senior Advisor in the Bureau
of Information Resource Management at the U.S. Department of
State, refused to comply with a congressional subpoena for
testimony before the Committee on Oversight and Government
Reform. Mr. Pagliano was expected to testify regarding the
circumstances that resulted in a failure to preserve federal
records belonging to the State Department. His testimony is
vital to the Committee's investigation into this matter.
Mr. Pagliano did not appear, much less provide testimony,
before the Committee, despite a duly issued subpoena issued on
September 8, 2016 that compelled him to appear on September 13,
2016. No legal basis exists for his failure to appear.
Mr. Pagliano was subsequently advised that his failure to
appear exposed him to the possibility of being held in contempt
and potential criminal liability pursuant to 2 U.S.C. 192 and
194. Mr. Pagliano was notified that the hearing would resume on
September 22, 2016, and on September 16, 2016 he was issued a
subpoena that compelled him to appear before the Committee on
that date. He again failed to appear.
Accordingly, the Chairman of the Committee on Oversight and
Government Reform recommends that the House find Mr. Pagliano
in contempt for his failure to comply with the subpoenas issued
to him on September 8, 2016 and September 16, 2016.
II. AUTHORITY AND PURPOSE
An important corollary to the powers expressly granted to
Congress by the Constitution is the responsibility to perform
rigorous oversight of the Executive Branch. The U.S. Supreme
Court has recognized this Congressional power and
responsibility on numerous occasions. For example, in McGrain
v. Daugherty, the Court held:
[T]he power of inquiry--with process to enforce it--
is an essential and appropriate auxiliary to the
legislative function. . . . A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to affect or change, and where
the legislative body does not itself possess the
requisite information--which not infrequently is true--
recourse must be had to others who do possess it.''\1\
---------------------------------------------------------------------------
\1\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
In addition, as Chief Justice Earl Warren wrote in Watkins
v. United States: ``The power of Congress to conduct
investigations is inherent in the legislative process. That
power is broad.''\2\
---------------------------------------------------------------------------
\2\Watkins v. United States, 354 U.S. 178, 1887 (1957).
---------------------------------------------------------------------------
Further, both the Legislative Reorganization Act of 1946
(P.L. 79-601), which directed House and Senate Committees to
``exercise continuous watchfulness'' over Executive Branch
programs under their jurisdiction, and the Legislative
Reorganization Act of 1970 (P.L. 91-510), which authorized
committees to ``review and study, on a continuing basis, the
application, administration, and execution'' of laws, codify
the powers of Congress.
The Committee on Oversight and Government Reform is a
standing committee of the House of Representatives, duly
established pursuant to the rules of the House of
Representatives, which are adopted pursuant to the rulemaking
Clause of the U.S. Constitution.\3\ House rule X grants the
Committee broad jurisdiction over federal ``[g]overnment
management'' and reform, including the ``[o]verall economy,
efficiency, and management of government operations and
activities,'' the ``[f]ederal civil service,'' and
``[r]eorganizations in the executive branch of the
Government.''\4\ House rule X further endows the Committee with
broad oversight jurisdiction, including authority to ``conduct
investigations of any matter without regard to clause 1, 2, 3,
or this clause [of House rule X] conferring jurisdiction over
the matter to another standing committee.''\5\ Finally, the
House rules direct the Committee to make available ``the
findings and recommendations of the committee . . . to any
other standing committee having jurisdiction over the matter
involved.''\6\
---------------------------------------------------------------------------
\3\U.S. Const., art I. Sec. 5, clause 2.
\4\House rule X, clause (1)(n).
\5\House rule X, clause (4)(c)(2).
\6\Id.
---------------------------------------------------------------------------
House rule XI specifically authorizes the Committee to
``require, by subpoena or otherwise, the attendance and
testimony of such witnesses and the production of books,
records, correspondence, memoranda, papers, and documents as it
considers necessary.''\7\ The rule further provides that the
``power to authorize and issue subpoenas'' may be delegated to
the Committee chairman.\8\ Pursuant to Committee rule 12(d),
the Chairman may ``Authorize and issue subpoenas as provided in
House rule XI, clause 2(m), in the conduct of any investigation
or activity or series of investigations or activities within
the jurisdiction of the Committee.''\9\ The September 8
subpoena discussed in this report was issued pursuant to this
authority.
---------------------------------------------------------------------------
\7\House rule XI, clause (2)(m)(1)(B).
\8\House rule XI, clause 2(m)(3)(A)(1).
\9\Rules of the Comm. on Oversight & Gov't Reform, U.S. House of
Representatives, 114th Cong., rule 12(d).
---------------------------------------------------------------------------
The Committee has undertaken its investigation into the
circumstances that resulted in a failure to preserve federal
records belonging to the State Department pursuant to the
authority delegated to it under the House Rules, including as
described above.
The oversight and legislative purposes of the investigation
at issue here, described more fully immediately below, include,
but are not limited to: (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 requests made pursuant to the Freedom of
Information Act 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.
III. BACKGROUND ON THE COMMITTEE'S INVESTIGATION
The Committee has conducted longstanding oversight over the
use of non-official email accounts for official business.\10\
In the context of that oversight, on December 12, 2012,
Chairman Darrell Issa wrote to Secretary Clinton regarding
whether she or other senior State Department officials had ever
used a personal email account to conduct official business.\11\
In the course of its investigation on a separate matter, the
House Select Committee on the Events Surrounding the 2012
Terrorist Attack in Benghazi discovered that Secretary Clinton
had in fact used a personal email account for official
business.\12\ On March 10, 2015, former Secretary Clinton
publicly acknowledged that she exclusively used a personal
email account, set up on a private server in her home, to
conduct government business as Secretary of State.\13\
---------------------------------------------------------------------------
\10\See, e.g., Letter from Hon. Henry Waxman, Chairman, H. Comm. on
Oversight & Gov't Reform, to Hon. Michael Astrue, Comm'r, U.S. Soc.
Sec. Admin, et al., Apr. 12, 2007.
\11\Letter from Hon. Darrell Issa, Chairman, H. Comm. on Oversight
& Gov't Reform, to Hon. Hillary Rodham Clinton, Sec'y, U.S. Dep't of
State, Dec. 13, 2012.
\12\See Letter from Hon. Trey Gowdy, Chairman, H. Select Committee
on the Events Surrounding the 2012 Terrorist Attack in Benghazi, to
David E. Kendall, Williams & Connolly LLP, Dec. 2, 2014.
\13\Statement of Hillary Rodham Clinton, Mar. 10, 2015.
---------------------------------------------------------------------------
The Committee has monitored what implications these events
have for federal laws within its jurisdiction.\14\ On December
16, 2015, the Committee held a hearing with the Office of
Government Ethics, which enforces the Ethics in Government Act,
to consider possible legislative changes.\15\ On January 11,
2016, on the same day the House passed bipartisan Freedom of
Information Act legislation, the Committee released a report
entitled FOIA Is Broken: A Report.\16\ On July 12, 2016, the
Committee favorably reported by voice vote H.R. 5709, the
Federal Records Modernization Act of 2016, which creates direct
penalties for violations of the Federal Records Act.\17\
---------------------------------------------------------------------------
\14\See, e.g., Letter from Hon. Jason Chaffetz, Chairman, H. Comm.
on Oversight & Gov't Reform, to Hon. John F. Kerry, Sec'y, U.S. Dep't
of State, Jan. 19, 2016.
\15\Merit Sys. Prot. Bd., Office of Gov't Ethics, and Office of
Special Counsel Reauthorization: Hearing Before the H. Subcomm. on
Gov't Operations, 114th Cong. (Dec. 16, 2015).
\16\H. Comm. on Oversight & Gov't Reform Staff Report, FOIA Is
Broken: A Report, 114th Congress (Jan. 11, 2016).
\17\Fed. Records Modernization Act, H.R. 5709, 114th Cong. (as
reported by the H. Comm. on Oversight & Gov't Reform, July 12, 2016).
---------------------------------------------------------------------------
On July 7, 2016, James Comey, Director of the Federal
Bureau of Investigation (FBI), testified before the Committee
regarding the FBI's investigation into whether classified
information was transmitted or stored on unclassified systems
in violation of federal criminal statutes and whether
classified information was compromised by unauthorized
individuals.\18\ The FBI did not make findings regarding the
Federal Records Act, the Freedom of Information Act, the Ethics
in Government Act, or potential false statements to Congress.
On July 11, 2016, the Committee requested the FBI case file and
all attachments.\19\ On August 16, 2016, the FBI produced a
heavily redacted portion of the file to the Sergeant at Arms of
the U.S. House of Representatives.\20\ When Congress resumed
its session in September, the Committee scheduled multiple
hearings regarding various issues related to its investigation,
including the individuals from the State Department who set up
and/or maintained Secretary Clinton's private server.\21\
---------------------------------------------------------------------------
\18\Oversight of the State Dep't: Hearing Before the H. Comm. on
Oversight & Gov't Reform, 114th Cong. (July 7, 2016) (testimony of Hon.
James Comey, Dir., Fed. Bureau of Investigation).
\19\Letter from Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, to Hon. James Comey, Dir., Fed. Bureau of
Investigation, July 11, 2016.
\20\Letter from Hon. James Comey, Dir., Fed. Bureau of
Investigation, to Hon. Jason Chaffetz, Chairman, H. Comm. on Oversight
& Gov't Reform, to Aug. 16, 2016.
\21\See, e.g., Examining FOIA Compliance at the Dep't of State:
Hearing Before the H. Comm. on Oversight & Gov't Reform, 114th Cong.
(Sept. 8, 2016), Examining Preservation of State Dep't Records: Hearing
Before the H. Comm. on Oversight & Gov't Reform, 114th Cong. (Sept. 13,
2016); see also Classifications and Redactions in FBI's Investigative
File: Hearing Before the H. Comm. on Oversight & Gov't Reform, 114th
Cong. (Sept. 12, 2016).
---------------------------------------------------------------------------
IV. MR. PAGLIANO'S REFUSAL TO COMPLY WITH THE COMMITTEE'S SUBPOENA FOR
TESTIMONY AT THE SEPTEMBER 13, 2016 HEARING
On September 6, 2016, Committee staff contacted Mr.
Pagliano's attorney to inform him of the need for his client's
testimony at an upcoming Committee hearing.\22\ The next day,
Mr. Pagliano's attorney advised Committee staff that Mr.
Pagliano would not appear voluntarily, and that if he did
appear, he would assert his rights under the Fifth Amendment
and decline to answer questions related to the matters that
were the subject of the hearing. Committee staff informed Mr.
Pagliano's attorney of the Committee's established practice of
requiring witnesses to appear in person to assert their right
pursuant to the Fifth Amendment to decline to answer
questions.\23\
---------------------------------------------------------------------------
\22\Telephone Call from Majority Staff, H. Comm. on Oversight &
Gov't Reform, to Mark J. MacDougall, Esq., Akin Gump Strauss Hauer &
Feld LLP, Sept. 7, 2016.
\23\Telephone Call between Majority Staff, H. Comm. on Oversight &
Gov't Reform, and Mark J. MacDougall, Esq., Akin Gump Strauss Hauer &
Feld LLP, Sept. 7, 2016.
---------------------------------------------------------------------------
Later on September 7, 2016, Chairman Chaffetz sent Mr.
Pagliano's attorney a formal witness invitation letter
indicating the Committee expected Mr. Pagliano's
attendance.\24\ On September 8, 2016, the Chairman issued to
Mr. Pagliano's attorney a subpoena compelling Mr. Pagliano's
appeance before the Committee on September 13, 2016, at 10:00
a.m.\25\
---------------------------------------------------------------------------
\24\Letter from Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, to Mark J. MacDougall, Esq., Akin Gump
Strauss Hauer & Feld LLP, Sept. 7, 2016.
\25\Subpoena from H. Comm. on Oversight & Gov't Reform to Mr. Bryan
Pagliano (Sept. 8, 2016).
---------------------------------------------------------------------------
The Committee received no response from Mr. Pagliano or his
attorneys until late on September 12, 2016, when Mr. Pagliano's
attorneys transmitted a letter to the Committee (1) advising
that Mr. Pagliano would continue to assert his right under the
Fifth Amendment;\26\ and (2) requesting that ``the Committee
formally excuse Mr. Pagliano from personally appearing on
September 13, 2016.''\27\
---------------------------------------------------------------------------
\26\Letter from Mark J. MacDougall, Esq., et al., Akin Gump Strauss
Hauer & Feld LLP, to Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, Sept. 12, 2016, at 2.
\27\Id.
---------------------------------------------------------------------------
That same evening, Chairman Chaffetz sent Mr. Pagliano's
attorney a letter stating that Mr. Pagliano's prior experience
makes clear (1) Mr. Pagliano is uniquely qualified to answer
questions that will assist the Committee's investigation, which
is why at least two other investigative entities sought his
testimony; and (2) Mr. Pagliano has in fact provided testimony
under certain conditions, specifically, to the FBI pursuant to
an immunity agreement.\28\ The letter advised that the
Committee required Mr. Pagliano's appearance because of, among
other reasons, (1) the possibility that 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.\29\ Therefore, the
subpoena for Mr. Pagliano remained in effect, compelling him to
appear on September 13, 2016 at 10:00 a.m.\30\
---------------------------------------------------------------------------
\28\Letter from Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, to Mark J. MacDougall, Esq., Akin Gump
Strauss Hauer & Feld LLP, Sept. 12, 2016, at 1-2.
\29\Id. at 2.
\30\Id.
---------------------------------------------------------------------------
On September 13, 2016 at 8:51 a.m., Mr. Pagliano's
attorneys transmitted a letter to the Committee stating that in
the event the Committee voted to proceed in executive session,
Mr. Pagliano's attorneys believed Mr. Pagliano would agree to
appear on short notice to formally decline to answer all
questions in reliance on the Fifth Amendment.\31\ Chairman
Chaffetz advised Mr. Paglianio's attorneys that the subpoena
remained in effect and that Mr. Pagliano was expected to
appear. At 10:00 a.m. on September 13, 2016, Mr. Pagliano did
not appear before the Committee as compelled by the valid
subpoena issued by Chairman Chaffetz on September 8, 2016. The
Chairman recessed the hearing. On September 15, 2016, the
Committee noticed its intent to resume the hearing on September
22, 2016.
---------------------------------------------------------------------------
\31\Letter from Mark J. MacDougall, Esq., et al., Akin Gump Strauss
Hauer & Feld LLP, to Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, Sept. 12, 2016, at 2.
---------------------------------------------------------------------------
V. MR. PAGLIANO'S REFUSAL TO APPEAR WHEN THE HEARING RESUMED ON
SEPTEMBER 22, 2016
On September 15, 2016, Chairman Chaffetz advised Mr.
Pagliano's attorneys that the Committee would proceed to
enforce the subpoena if Mr. Pagliano refused to appear when the
hearing resumed on September 22, 2016.\32\ In a letter,
Chairman Chaffetz stated:
\32\Letter from Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, to Mark J. MacDougall, Esq., Akin Gump
Strauss Hauer & Feld LLP, Sept. 15, 2016.
---------------------------------------------------------------------------
The Committee will permit him the opportunity to cure
his failure to comply by agreeing to appear and produce
his immunity agreement when the Committee's hearing
resumes on September 22, 2016. The Committee remains
interested in his testimony, but also has a substantial
interest in holding Mr. Pagliano accountable for his
knowing and intentional failure to appear. Neither this
Committee, nor the House, can countenance witnesses
blatantly ignoring validly issued subpoenas for
testimony and documents.\33\
---------------------------------------------------------------------------
\33\Id. at 3.
On September 16, 2016, Chairman Chaffetz issued a subpoena
to compel Mr. Pagliano to appear on September 22, 2016. When
the hearing resumed at 10:00 a.m. on that date, Mr. Pagliano
again failed to appear before the Committee.
VI. CONCLUSION
The refusal of Mr. Bryan Pagliano to appear before the
Committee pursuant to a subpoena has no legal basis. Such
complete refusal to comply with a lawful subpoena, or even to
negotiate in good faith to determine a mutually agreeable date
to testify, threatens the ability of this Committee, and every
House Committee, to carry out its legislative and oversight
functions. The House cannot accept a process whereby a subpoena
can simply be ignored.
Mr. Pagliano willfully failed to comply with a duly issued
subpoena from a standing Committee of the U.S. House of
Representatives. It is imperative to protect the institutional
interests of the House by enforcing the subpoena through the
contempt process. This serious matter requires the Committee to
seek action by the full House in this manner.
There is no constitutional impediment to (1) the Committee
approving a resolution recommending that the full House hold
Mr. Pagliano in contempt of Congress; (2) the full House
approving a resolution holding Mr. Pagliano in contempt of
Congress; (3) if such resolutions are approved, the Speaker
certifying the matter to the United States Attorney for the
District of Columbia, pursuant to 2 U.S.C. 194 and; (4) a grand
jury indicting, and the United States Attorney prosecuting, Mr.
Pagliano under 2 U.S.C. 192.
VII. REPORTING REQUIREMENTS
Explanation of Amendments
During Full Committee consideration of the resolution,
Chairman Jason Chaffetz (R-UT) offered an amendment in the
nature of a substitute to the report. The Chaffetz amendment in
the nature of a substitute was adopted by voice vote.
Committee Consideration
On September 22, 2016 the Committee on Oversight and
Government Reform met in open session with a quorum present to
consider a report of contempt against Bryan Pagliano for
refusal to comply with a valid Congressional subpoena. The
Committee approved the report by a roll call vote of 19 to 15
and ordered the report favorably reported to the House.
Roll Call Votes
There was one roll call vote during consideration of the
contempt report:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this report to the
legislative branch where the report relates to the terms and
conditions of employment or access to public services and
accommodations. The contempt report does not relate to
employment or access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this report is to assist the House of
Representatives in considering whether to cite Bryan Pagliano
for contempt for refusal to comply with a valid Congressional
subpoena.
Constitutional Authority Statement
The Committee finds the authority for this report in
article 1, section 1 of the Constitution.
Duplication of Federal Programs
No provision of this report establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this report does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
Federal Advisory Committee Act
The Committee finds that the report does not establish or
authorize the establishment of an advisory committee within the
definition of 5 U.S.C. App., Section 5(b).
Earmark Identification
This report does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Congressional Budget Office Cost Estimate
With respect to requirements of clause (3)(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
not received a cost estimate for this measure from the Director
of Congressional Budget Office. The Committee on Oversight and
Government Reform estimates that the report would have no cost.
VIII. MINORITY VIEWS
The Democratic Members of the Committee on Oversight and
Government Reform opposed the resolution of contempt for Bryan
Pagliano. Every Democratic Member that was present voted in
opposition to the resolution.
Since Labor Day, the Oversight Committee has held
five days of ``emergency'' hearings on Hillary Clinton's
emails. In those three weeks, the Chairman issued 12 subpoenas,
which is more than one a day excluding weekends. It is also
more than a third of the total number of subpoenas the Chairman
issued in all of 2016. The Chairman issued all of the subpoenas
unilaterally, without any debate or vote.
The actions by the Committee raise serious legal,
ethical, and Constitutional concerns, and Members should not be
placed in a position of voting in favor of a resolution that
could subject them or their staffs to potential disciplinary
action.
Mr. Pagliano has already asserted his Fifth
Amendment rights before the Select Committee on Benghazi--a key
fact that the current contempt resolution completely
disregards.
There is no legitimate legislative purpose in
forcing Mr. Pagliano to appear before the Committee to assert
his Fifth Amendment rights before Congress for a second time,
and there is certainly no legitimate legislative purpose in
forcing him to do so in public.
Although Republicans argue that Mr. Pagliano
received immunity from the Department of Justice, his attorneys
have already explained that this immunity agreement was
limited, and a federal court has already ruled that Mr.
Pagliano continues to have the right to assert his
Constitutional privileges in separate proceedings.
The current contempt resolution inaccurately
accuses Mr. Pagliano of a ``complete refusal to comply with a
lawful subpoena, or even to negotiate in good faith to
determine a mutually agreeable date to testify.''
In fact, despite the abusive and unilateral
subpoena, Mr. Pagliano's attorneys offered to have him appear
in person to assert his Fifth Amendment rights in executive
session on the date set by the Committee. The Chairman refused,
but he has not offered a valid reason for doing so.
On September 16, 2016, the Chairman secretly sent
armed U.S. Marshals into Mr. Pagliano's workplace to personally
serve a second subpoena for his public appearance before the
Committee. This action--using armed Marshals instead of
Committee staffers in business attire--served no purpose but to
further harass and intimidate Mr. Pagliano. There was no vote,
debate, consultation, or even notification to Democratic
Committee Members before the Chairman took this unilateral
action.
If the Chairman wants to obtain Mr. Pagliano's
Fifth Amendment assertion for the record, he could easily hold
a deposition, as Chairman Trey Gowdy did with Mr. Pagliano
before the Select Committee on Benghazi. Alternatively, he
could have moved the hearing into executive session, recessed,
notified Mr. Pagliano's attorneys, and received his assertion
on-the-record. Chairman Chaffetz has declined to follow either
approach and instead, demanded a public hearing.
The actions of the Committee demonstrate a
fundamental disrespect for the principles of separation of
powers in an effort to re-investigate the work of the FBI,
which has already concluded that no criminal charges were
warranted. FBI Director Jim Comey reported that ``we found no
evidence that any of the additional work-related emails were
intentionally deleted in an effort to conceal them'' and that
``we didn't find any evidence of evil intent and intent to
obstruct justice.''
The sole purpose of compelling Mr. Pagliano to
appear in public to invoke his Fifth Amendment rights for a
second time before Congress is to harass and embarrass him and
those associated with him, and to create fodder for political
attack ads against Secretary Clinton during her presidential
campaign. This is a blatant abuse of taxpayer funds for
partisan political purposes.
I. Ethics Rules Prohibiting Harassment of Witnesses
Legal ethics rules set forth by the American Bar
Association (ABA) and the District of Columbia Bar prohibit
attorneys from taking actions to embarrass, harass, or burden
an individual.
According to the ABA's professional ethical standards for
attorneys, Rule 4.4 of the Model Rules of Professional Conduct
states that ``a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a
third person.''\1\
---------------------------------------------------------------------------
\1\American Bar Association, Model Rules of Professional Conduct,
Rule 4.4: Respect for the Rights of Third Persons (2016) (online at
www.americanbar.org/groups/professional_responsibility/publications/
model_rules_of_professional_conduct/
rule_4_4_respect_for_rights_of_third_persons.html).
---------------------------------------------------------------------------
Rule 8.4(a) considers it to be ``professional misconduct''
for an attorney to ``violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another.''\2\
---------------------------------------------------------------------------
\2\American Bar Association, Model Rules of Professional Conduct,
Rule 8.4: Misconduct (2016) (online at www.americanbar.org/groups/
professional--responsibility/publications/
model_rules_of_professional_conduct/rule_8_4_misconduct.html).
---------------------------------------------------------------------------
Rule 8.4(d) states that it is professional misconduct for
lawyers to ``engage in conduct that is prejudicial to the
administration of justice.''\3\
---------------------------------------------------------------------------
\3\Id.
---------------------------------------------------------------------------
The District of Columbia Bar has interpreted these rules to
prohibit attorneys--including congressional staff attorneys--
from being involved in the process to compel witnesses who have
indicated that they intend to assert their Fifth Amendment
privilege at a public hearing when the sole purpose of that
action is to ``harass or embarrass'' the witness.
In January 2011, the D.C. Legal Ethics Committee upheld an
earlier opinion barring attorneys from subpoenaing a witness
when ``it is known in advance that no information will be
obtained and the sole effect of the summons will be to pillory
the witness.'' The Legal Ethics Committee explained that
ethical obligations are violated when an attorney compels a
witness to appear knowing that the appearance ``(1) will
provide no information to the committee and (2) is intended
merely to degrade a witness.''\4\
---------------------------------------------------------------------------
\4\D.C. Bar, Ethics Opinion 358: Subpoenaing Witness When Lawyer
for Congressional Committee Has Been Advised that Witness Will Decline
to Answer Any Questions on Claim of Privilege; Legal Ethics Opinion 31
Revisited (Jan. 2011) (online at www.dcbar.org/bar-resources/legal-
ethics/opinions/opinion358.cfm)
---------------------------------------------------------------------------
The Legal Ethics Committee explained that these rules apply
to all attorneys involved in these unethical actions, which
includes staff attorneys who participate in preparation for
hearings or participate in the hearings themselves. The opinion
states:
Opinion 31 correctly asserted that when an attorney
causes a witness to be called for the sole purpose of
harassing or degrading that witness, that attorney
violates our rules. See Rules 4.4, 8.4(d). Similarly, a
lawyer would violate Rule 8.4(d) by engaging in abuse
or harassment of the witness. Further, such conduct by
a staff lawyer might constitute assisting another in
violating the rules. See D.C. Rule 8.4(a). In addition
to participation in the hearing itself, such related
activities as preparing subpoenas also could subject a
lawyer to sanctions, though we note that Rule 5.2
protects a subordinate lawyer who acts at the direction
of a supervising attorney so long as there is a
reasonable argument that calling the witness is
permitted by the Rules.\5\
---------------------------------------------------------------------------
\5\Id.
In addition, House Rules and the Code of Official Conduct
generally proscribe unethical behavior. House Rule XXIII
provides: ``A Member, Delegate, Resident Commissioner, officer,
or employee of the House shall behave at all times in a manner
that shall reflect creditably on the House.''\6\
---------------------------------------------------------------------------
\6\House rule XXIII, clause 1.
---------------------------------------------------------------------------
II. Subpoenas and Proposed Contempt Constitute Harassment
Mr. Pagliano has already asserted his Fifth Amendment right
against self-incrimination before the Select Committee on
Benghazi--a key fact that the Chairman's contempt resolution
completely disregards. There is no legitimate legislative
purpose in forcing Mr. Pagliano to appear to assert his Fifth
Amendment rights before Congress for a second time, and there
is no legitimate legislative purpose in forcing him to do so in
public.
Approximately one year ago, the Chairman of the Select
Committee on Benghazi, Rep. Trey Gowdy, subpoenaed Mr. Pagliano
to testify in a closed-door deposition about this same topic,
during this same Congress. In a letter prior to his appearance,
Mr. Pagliano's counsel informed the Select Committee that Mr.
Pagliano would invoke his Fifth Amendment privilege as to any
and all questions.\7\
---------------------------------------------------------------------------
\7\Letter from Mark J. MacDougall, Counsel for Bryan Pagliano, to
Chairman Trey Gowdy, House Select Committee on Benghazi (Sept. 8,
2015).
---------------------------------------------------------------------------
Chairman Gowdy explained at that time that he had
``appropriate potential reasons for the Committee to go forward
with Mr. Pagliano's appearance,'' including ``the committee's
right to evaluate the privilege assertion, the possibility that
the witness will waive or not assert the privilege, the
possibility that the committee will agree to hear the witness
in executive session, and the possibility that the committee
will immunize the witness's testimony under 18 U.S.C.
Sec. 6005.''\8\
---------------------------------------------------------------------------
\8\Letter from Chairman Trey Gowdy, House Select Committee on
Benghazi, to Mark J. MacDougall, Counsel for Bryan Pagliano (Sept. 9,
2015).
---------------------------------------------------------------------------
Instead of requiring Mr. Pagliano to appear in a public
hearing, however, Chairman Gowdy permitted Mr. Pagliano to
invoke his privilege in a closed deposition. Similar to an
executive session hearing, a deposition is an official
Committee activity with a transcribed official record. Mr.
Pagliano attended the deposition and invoked his Fifth
Amendment privilege to all substantive questions.
In June 2016, Mr. Pagliano again invoked his Fifth
Amendment rights in a civil deposition brought by conservative
group Judicial Watch. Mr. Pagliano invoked his Fifth Amendment
rights for every substantive question asked, including more
than 125 questions regarding ``the creation and operation of
clintonemail.com for State Department business.''\9\
---------------------------------------------------------------------------
\9\Deposition of Bryan Pagliano (June 22, 2016), Judicial Watch,
Inc., v. U.S. Department of State, D.D.C. (No. 13-cv-1363) (online at
www.judicialwatch.org/wp-content/uploads/2016/06/JW-v-State-Pagliano-
Deposition-01363 .pdf); see also Judicial Watch: Clinton IT Staffer
Pleads 5th 125 Consecutive Times, CNN (June 22, 2016) (online at
wwvv.cnn.com/2016/06/22/politics/bryan-pagliano-judicial-watch-
deposition/).
---------------------------------------------------------------------------
The Justice Department provided Mr. Pagliano with limited
use immunity during its criminal investigation, and a federal
district court judge examining that immunity agreement
determined that it did not preclude Mr. Pagliano from
continuing to invoke his Fifth Amendment rights in separate
proceedings.\10\
---------------------------------------------------------------------------
\10\Minute Order Issued by Judge Emmet G. Sullivan (June 14, 2016),
Judicial Watch, Inc., v. U.S. Department of State, D.D.C. (No. 13-cv-
1363).
---------------------------------------------------------------------------
Despite these facts, the Oversight Committee demanded that
Mr. Pagliano come before Congress once again to invoke his
Fifth Amendment privilege in public.
On September 7, 2016, the Chairman sent a letter inviting
Mr. Pagliano to testify before the Committee in six days and
threatening the imminent use of the compulsory process,
stating: ``The Committee will send a subpoena shortly and
expects Mr. Pagliano's attendance.''\11\
---------------------------------------------------------------------------
\11\Letter from Chairman Jason Chaffetz, House Committee on
Oversight and Government Reform, to Mark J. MacDougall, Counsel for
Bryan Pagliano (Sept. 7, 2016).
---------------------------------------------------------------------------
The next day, on September 8, 2016, the Chairman issued a
unilateral subpoena, with no debate or vote, compelling Mr.
Pagliano's appearance at the hearing scheduled for September
13, 2016.\12\
---------------------------------------------------------------------------
\12\House Committee on Oversight and Government Reform, Subpoena to
Bryan Pagliano (Sept. 8, 2016).
---------------------------------------------------------------------------
On September 12, 2016, Mr. Pagliano's attorneys objected to
these short-notice demands, writing: ``we must object to the
attempted service of a subpoena at 9:00 P.M. that seeks to
compel a private citizen to appear before your Committee two
business days later.''\13\ Mr. Pagliano's attorneys explained
that Mr. Pagliano ``will continue to assert his rights under
the Fifth Amendment and will decline to appear'' before the
Committee's hearing.\14\ Noting that Mr. Pagliano had already
asserted his Fifth Amendment rights before the Select Committee
on Benghazi, his attorneys explained:
\13\Letter from Mark J. MacDougall, et al., Counsel for Bryan
Pagliano, to Chairman Jason Chaffetz, House Committee on Oversight and
Government Reform (Sept. 12, 2016).
\14\Id.
---------------------------------------------------------------------------
Any effort to require Mr. Pagliano to publicly appear
this week and again assert his Fifth Amendment rights
before a committee of the same Congress, inquiring
about the same matter as the Benghazi Committee,
furthers no legislative purpose and is a transparent
effort to publicly harass and humiliate our client for
unvarnished political purposes.\15\
---------------------------------------------------------------------------
\15\Id.
On Friday, September 16, 2016, without notifying other
Members of the Committee, the Chairman sent armed U.S. Marshals
into Mr. Pagliano's workplace to serve yet another unilateral
subpoena compelling him to appear before the Committee on
September 22, 2016.
There was no reason to send armed Marshals to serve the
subpoena. Even if the Chairman believed personal service was
required, House rules allow Committee staff to serve subpoenas
rather than armed law enforcement authorities.
III. No Legitimate Legislative Purpose To Compel Mr. Pagliano To Appear
On the evening of September 12, 2016, Chairman Chaffetz
informed Mr. Pagliano's attorneys that the Committee's subpoena
remained in effect. The Chairman set forth three possible
reasons for Mr. Pagliano to appear:
The Committee requires Mr. Pagliano's appearance
because of, among other reasons, the possibility that
he will waive or choose not to assert the privilege as
to some or all questions, the possibility that the
Committee will agree to hear his testimony in executive
session, and the possibility that the Committee will
immunize his testimony pursuant to 18 U.S.C.
Sec. 6005.\16\
---------------------------------------------------------------------------
\16\Letter from Chairman Jason Chaffetz, House Committee on
Oversight and Government Reform, to Mark J. MacDougall, Counsel for
Bryan Pagliano (Sept. 12, 2016).
However, there was no reasonable basis or legitimate
expectation that any of these three possibilities would
materialize.
NO POSSIBILITY THAT MR. PAGLIANO WOULD REVERSE HIS FIFTH AMENDMENT
ASSERTION
First, with respect to the Fifth Amendment assertion, on
September 21, 2016, the day before the second day of hearings
was scheduled to occur, Mr. Pagliano's attorneys sent yet
another letter reiterating that the ``facts have not changed,''
and that their client would continue to assert his Fifth
Amendment rights as to all questions:
You and the Committee have been told from the
beginning that Mr. Pagliano will continue to assert his
Fifth Amendment rights and will decline to answer any
questions put to him by your Committee.\17\
---------------------------------------------------------------------------
\17\Letter from Mark J. MacDougall, et al., Counsel for Bryan
Pagliano, to Chairman Jason Chaffetz, House Committee on Oversight and
Government Reform (Sept. 21, 2016).
---------------------------------------------------------------------------
NO POSSIBILITY OF GOING INTO EXECUTIVE SESSION
Despite claiming that Mr. Pagliano must appear before the
Committee because of the possibility that the Committee would
vote to go into executive session, the Chairman made clear that
he had no intention of doing so.
As described above, the letter from Chairman Chaffetz on
September 12, 2016, stated: ``The Committee requires Mr.
Pagliano's appearance because of, among other reasons . . . the
possibility that the Committee will agree to hear his testimony
in executive session.\18\
---------------------------------------------------------------------------
\18\Letter from Chairman Jason Chaffetz, House Committee on
Oversight and Government Reform, to Mark J. MacDougall, Counsel for
Bryan Pagliano (Sept. 12, 2016).
---------------------------------------------------------------------------
During the hearing, however, the Chairman made clear that
he never intended to permit Mr. Pagliano to make his appearance
in executive session. This was expressed in the following
exchange with Ranking Member Cummings:
Rep. Cummings: Last night, the Chairman sent another
letter to Mr. Pagliano saying that our Committee might
go into executive session to accept his Fifth Amendment
assertion.
Rep. Chaffetz: No, I did not say that.
Rep. Cummings: Well, what did you say?
Rep. Chaffetz: I want this Committee to be open and
transparent. We do things as everything we can possibly
do out in the open. That is the American way. That's
the way this Committee is going to be run.\19\
---------------------------------------------------------------------------
\19\House Committee on Oversight and Government Reform, Hearing on
Examining Preservation of State Department Federal Records (Sept. 13,
2016).
The Chairman's claim directly contradicted the statements
he had made in his letter to Mr. Pagliano the night before,
while at the same time making clear that executive session was
not a real option under consideration by the Committee.
In those comments at the hearing, the Chairman also clearly
rejected an offer from Mr. Pagliano's attorneys to appear
before the Committee and assert his Fifth Amendment privilege
against self-incrimination in executive session. Earlier that
morning, Mr. Pagliano's counsel had offered:
In the event the Committee votes to proceed in
executive session on September 13, 2016, however, we
believe that Mr. Pagliano would agree to appear on
short notice in order to formally decline to answer all
questions in reliance on the Fifth Amendment. If the
Committee actually wants Mr. Pagliano to personally
appear and invoke his constitutional rights, then this
offers a simple and direct path toward that objective.
If you decline to pursue this avenue, then there can be
no doubt that the Committee is seeking only to promote
the public spectacle of a private citizen repeatedly
asserting his Fifth Amendment rights for no legitimate
legislative purpose.\20\
---------------------------------------------------------------------------
\20\Letter from Mark J. MacDougall, et al., Counsel for Bryan
Pagliano, to Chairman Jason Chaffetz, House Committee on Oversight and
Government Reform (Sept. 13, 2016).
---------------------------------------------------------------------------
NO POSSIBILITY OF GRANTING IMMUNITY
On September 22, 2016, the Department of Justice provided
Committee Members and staff with access to Mr. Pagliano's
immunity agreement with the Department, and the Committee was
able to confirm that it is a limited grant of use immunity that
permits Mr. Pagliano to continue to assert his Fifth Amendment
rights in separate proceedings, including a congressional
hearing.
Republican Committee Members have publicly criticized the
Justice Department for its decision to grant immunity to Mr.
Pagliano. As Rep. Gowdy stated in a television interview:
These are the two people the FBI decides to give
immunity to, Bryan Pagliano and this guy at Platte
River, if it happened, if it happened. Those are the
two that you would want to prosecute, so you're giving
immunity to the trigger people, and everybody goes
free.\21\
---------------------------------------------------------------------------
\21\America's Newsroom, Fox News (Sept. 9, 2016).
---------------------------------------------------------------------------
Rep. Gowdy continued:
That's why those of us who used to do it for a living
didn't like to give immunity. That's why you never
heard me calling for giving Bryan Pagliano immunity.
You better be right on who the trigger person is.\22\
---------------------------------------------------------------------------
\22\Id.
Similarly, Chairman Chaffetz has criticized the Justice
Department's decision to grant immunity to individuals in the
case, stating to the Associated Press: ``No wonder they
couldn't prosecute a case. . . . They were handing out immunity
deals like candy.''\23\
---------------------------------------------------------------------------
\23\GOP Lawmaker: FBI Gave Immunity to Top Clinton Aide, Associated
Press (Sept. 23, 2016).
---------------------------------------------------------------------------
IV. Conclusion
There was no credible expectation that Mr. Pagliano would
choose to waive his Fifth Amendment rights, that the Chairman
would permit Mr. Pagliano to invoke those rights in executive
session, or that the Chairman would seek immunity for Mr.
Pagliano. As a result, the Committee has failed to set forth
any legitimate legislative purpose for demanding that Mr.
Pagliano appear in public before the Committee to invoke his
rights for a second time.
At the September 13, 2016, hearing, Ranking Member Cummings
expressed his concerns about the Committee's actions:
There's no legitimate reason for Republicans to force
Mr. Pagliano to appear yet again before Congress just
to assert his Fifth Amendment rights one more time. How
many times will Republicans do this? Will they force
him to take the Fifth in front of the Science Committee
next? How about the Homeland Security or Intelligence
Committee? Should we have them go to those Committees
too? This is an absolute abuse of authority.
Now, Chairman Gowdy and I disagree about many things,
but I give him full credit for one thing that he did.
At least when he subpoenaed Mr. Pagliano, he did it in
a private session. He did not force Mr. Pagliano to
assert the Fifth in public just to humiliate him, and I
respect Mr. Gowdy for that.
Let me say this as plainly as I can. If this
Committee's goal were just to get Mr. Pagliano or other
witnesses on the record asserting their Fifth Amendment
rights, we could do that easily in a private session
just like Mr. Gowdy did with Mr. Pagliano a year ago.
There's no legitimate reason to force Mr. Pagliano, or
the other witnesses who were subpoenaed for this
hearing, to assert the Fifth in open session. There's
only an illegitimate reason--to get a photo op that
Republicans think could harm Secretary Clinton's
presidential campaign.\24\
---------------------------------------------------------------------------
\24\House Committee on Oversight and Government Reform, Hearing on
Examining Preservation of State Department Federal Records (Sept. 13,
2016).
When the sole purpose of the Committee's actions is to
pillory, harass, and abuse an individual, those actions are
illegitimate and unethical. The Committee's actions in the past
three weeks raised serious legal, ethical, and Constitutional
concerns, and therefore, Democratic Members of the Committee
chose to vote against the resolution of contempt for Mr.
Pagliano.
Elijah E. Cummings,
Ranking Member.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]