- The Washington Times - Wednesday, September 9, 2015

The lawyer for the man who set up and oversaw Hillary Rodham Clinton’s email server — and asserted his Fifth Amendment right against self-incrimination on the subject — says his client will not give congressional panels an advance look at what he might say if he were to testify.

Republican Sens. Charles Grassley of Iowa and Ron Johnson of Wisconsin have been negotiating a possible “proffer” — a legal term for a preliminary overview on what a potential witness might say — in order to determine whether to offer Bryan Pagliano immunity from prosecution in exchange for his testimony.

But in a letter to Mr. Grassley and Mr. Johnson, Mark MacDougall that his client would not engage in any proffer session, calling the legal basis for such powers murky and saying it could be taken later as a waiver of Mr. Pagliano’s Fifth Amendment rights.

“Members of congressional committees and their lawyers have lately taken an expansive view of what constitutes a waiver by an individual citizen of his or her right under the Fifth Amendment,” he wrote.

“Any ‘proffer session’ or other disclosure by Mr. Pagliano — or his lawyers acting on his behalf — of the contents of his possible testimony creates the very practical risk that our client will later be said to have waived his constitutional protections,” said the letter, which was read to The Washington Times and first reported by Politico.

The letter is referring the dispute between former IRS senior executive chief Lois Lerner and the House Oversight Committee. Republicans on the committee said Ms Lerner could not make statements and then refuse to be questioned about them. Ms. Lerner has been held in contempt of Congress for refusing to testify over her agency targeting of the tax-exempt status of tea-party groups, though the Justice Department has declined to pursue the case against her.

Mr. Grassley and Mr. Johnson are both chairmen of Senate panels investigating Mrs. Clinton’s private server and related issues such as the Benghazi attacks, her handling of classified information, and State Department compliance with earlier subpoenas.

Sources familiar with the letter and the negotiations told The Times that the panels — Mr. Grassley heads Judiciary and Mr. Johnson Homeland Security — are considering their next move.

Among the options being considered are: issuing a subpoena, talking to the Justice Department on whether it would object to a simple grant of immunity, or continuing to negotiate with Mr. Pagliano’s lawyers to secure his testimony

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