What was once only widely suspected has now become a reality: Hillary Clinton’s tech specialist Bryan Pagliano will almost certainly use his Fifth Amendment rights in one of the current email investigations. This instance is a FOIA case brought by conservative watchdog group, Judicial Watch.
On June 1, his lawyers filed a brief with the courts stating that it would be pointless to force Pagliano to be deposed, since he has no intention of answering any questions.
While the plaintiffs of the case have noted that the records of this proceeding have been sealed by the U.S. District Court, the fear from Pagliano’s lawyer is potential leaks — or the likelihood that a higher court could unseal the records.
While ‘pleading the Fifth’ is one of our fundamental rights, it is not without its hazards, both in the courtroom and in court of public opinion.
Images of Lt. Col. Oliver L. North pleading the Fifth during the Iran-Contra scandal only brought up more questions and fueled the fire that investigators were missing something.
Likewise, in criminal court, Mark Fuhrman pleading the Fifth during the O.J. Simpson murder trial overwhelmingly set public opinion against the prosecution’s case.
While 'pleading the Fifth' is one of our fundamental rights, it is not without its hazards, both in the courtroom and in court of public opinion.
The biggest problem in the courtroom is that once witnesses have gone down that path, it often invalidates all testimony, both prior and future, that the witness could provide — which may or may not help the defense.
Clinton has had a rocky relationship with the power of the Fifth Amendment. At first expressing disappointment in those using it (during the various Benghazi investigations), but then becoming almost totally silent (along with most of her staff) when the Inspector General’s office started probing the use of the private email system.
‘Hiding behind the rules’ is almost always seen as a poor play by politicians — where things as simple as refusing to release tax documents hurt their public image.
A full-on, lockstep pleading of the Fifth by Clinton’s staff as these cases progress could have a profound effect, but only on those desperately needed swing and independent voters.
In reality, most people’s opinion of Clinton was formed long before Benghazi or the email server scandal. She’s been in the political spotlight for decades — with plenty of opportunities to gain support or rankle critics.
But as a federal republic, this election is going to come down to the 10 or so battleground states, which will likely be decided by 4 points or less. Every vote will count, every action from either candidate will either help or hurt.
In reality, neither side is really going to care — at least about their own candidate’s legal problems. This might very well be the first U.S. presidential election where both candidates are locked in federal court cases come November.
All that’s missing from this three-ring circus of federal court battles is an unexpected bombshell, because in the court of public opinion at least half of Americans think that one (or both) of the candidates is guilty.
So from a practical standpoint, whether or not this will hurt Clinton is really a coin-flip type proposition. We won’t know until the last vote is counted in the valuable swing states.
Maybe President Obama should just pardon both of them, and then we could really enjoy seeing a scrambling media trying to cover an unexpected political A-bomb.
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