Senate Judiciary Chairman Chuck Grassley is a key player in the proceedings. | AP Photo Former Clinton IT staffer to lawmakers: No testimony without immunity

Hillary Clinton’s former IT staffer who is asserting his Fifth Amendment right not to answer self-incriminating questions rejected two Senate chairmen’s request for sneak peek at what he’d say if given immunity.

In a Wednesday letter obtained by POLITICO, Bryan Pagliano’s lawyer Mark MacDougall told Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Senate Homeland Security Chairman Ron Johnson (R-Wis.) that he would give no such preliminary overview, known in legal terms as a proffer. Both chairmen hoped to get a better sense of what Pagliano knew about Clinton’s homebrew server — which he set up in 2009 before she headed to the State Department.


But MacDougall, an attorney at Akin Gump Strauss Hauer & Feld LLP, said such an exploratory discussion of what Pagliano knew had no basis in law and could open up his client to accusations that he “waived his right” to avoid self incrimination.

“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.”

Republicans claimed last year that Lois Lerner, the central figure in the IRS tea party targeting scandal, waived her right when she gave a bold statement declaring her innocence and claiming to have broken no laws — then took the Fifth and refused lawmakers’ questions.

Rep. Trey Gowdy (R-S.C.), a former federal prosecutor who now chairs the House Select Committee on Benghazi, said at the time that Lerner could not make statements and then refuse to be questioned on them. Legal experts were divided on the issue, but Lerner was held in contempt of Congress for refusing to testify.

“We cannot set the stage for such an episode by engaging in the kind of discussion with the committees’ staff as suggested in your letter,” MacDougall continued in his letter to Grassley and Johnson.

Pagliano is slated to appear before Gowdy’s panel Thursday and plans to take the Fifth.

The two senators several days ago said they wanted to explore the option of giving Pagliano immunity for his testimony after his lawyer said his client would answer no questions from the Hill or the FBI about the server.

The Senators said Pagliano, who set up Clinton’s controversial email server then followed her to the State Department to continue its maintenance, likely has vital information that could help inform their investigations. Gowdy has expressed reservations about granting immunity because it makes it impossible to prosecute the person down the road.

All three lawmakers, however, agree that a proffer would go a long way in helping them decide whether immunity would be worth it, by giving Congress a look at what he’d say.

MacDougall’s letter says the law that gives Congress the ability to grant immunity doesn’t say anything about such a proffer being required, arguing that there is “no statutory or practical basis" for such testimony previews.

MacDougall also said in the letter that he did not ask any Congressional committees for immunity, but “in the event that any committee of the Congress” does authorize such a judicial order, “Mr. Pagliano will, of course, comply with such an order.”

First, though, he noted that they’d have to get approval from the two-thirds of the committee or a majority of either chamber. But they haven’t yet, he added, calling such talks of immunity “highly speculative” at the present.

“Given the plain language of the governing statute, and in the absence of any facts to suggest that an order of immunity may be issued to our client by a U.S. district court any time soon, there is no basis for a ‘proffer session’ or similar extra-legal exercise with the committees’ staff,” the letter said.