JW v. @StateDept: IT Server Mystery Man Bryan Pagliano Pleads the Fifth (Transcript)

Posted: 1:28 am ET
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See the transcript below or read it here (PDF).

 

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Painless Process Exhibit: A Schedule C Employee Takes a Job at the State Department

Posted: 2:46  am ET
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Remember in 2014,  when the State Department officially rejected criticisms that too many top diplomatic jobs have gone to political appointees rather than to career foreign service officers? The official who rebutted that criticism was the spokesperson of the State Department, Jennifer Psaki, a former political operative and herself, a political appointee (see Political Appointee Rejects Criticisms of Too Many Political Picks at the State Department).

Below is part of an FOIA case filed by Judicial Watch that shows what happens when a Schedule C political appointee gets a job at the State Department. Let us not kid ourselves.  This has been going on for years and years.  This goes on with every new administration. But this is the first time, we get a look at the discussion that goes on behind the scene. It also shows just how deeply the political appointees moved into the bureaucracy in places like IRM where you would not expect to find one. Poor IRM folks did not even know what is a PAS.

Here are a few things we learned:

  • Somebody needs to write a position description (PD) that fits the Schedule C employee to be; no need for USAjobs.gov
  • The position description needs to be classified per OPM guidance for GS position. No worries, somebody will make that happened.
  • Once the position is OPM-classified, bringing the Schedule C employee onboard takes 2-4 weeks.
  • Schedule C pay will match current pay
  • Schedule C employee reports to a PAS; not a traditional supervisor/employee position.

Read the emails below:

 

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Where, Oh, Where Is Bryan Pagliano’s Outlook PST File?

Posted: 1:38 am ET
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Microsoft Outlook automatically stores messages, contacts, appointments, tasks, notes, and journal entries in a personal storage folder, also known as a .pst file on the hard disk drive or  the information is probably being stored in a mailbox on an Exchange Server .  According to Microsoft:

To know how to back up your data if you use Outlook with a Microsoft Exchange Server, you have to know where the data is stored. The default delivery and storage location for Outlook data is the Exchange Server mailbox. The Exchange Server administrator usually handles backups of the mailboxes on the server. However, some Exchange Server administrators store Outlook data in a .pst file on your hard disk drive.

So, question is — who was the administrator who handled the backups for IRM folks?

Below via DPB of May 10, 2016:

QUESTION: Yesterday in its court submission, the RNC said that you guys had told them that you would not be producing any of Mr. Pagliano – any more, I guess, of Mr. Pagliano’s emails. Is that correct?

MS TRUDEAU: So thank you for that, because there’s been some unclear reporting on this. So the department has searched Mr. Pagliano’s email PST file and has not located one that covers the time period of Secretary Clinton’s tenure. The absence of this email file, however, does not indicate that the department has no emails sent or received by him. In fact, we have previously produced through FOIA and to Congress emails sent and received by Mr. Pagliano during Secretary Clinton’s tenure. Furthermore, at no point did the State Department convey to the RNC that we did not intend to produce responsive emails within our possession consistent with our obligations under the law.

QUESTION: Okay, but I mean, are you done? Have you given them everything that they are – should get that you have?

MS TRUDEAU: So we continue to take a look at it. We will produce files as we are required under the law.

QUESTION: Right, I understand that. But do you know at the moment if you have – if there are emails that you have found from that time period that have just not yet been turned over to —

MS TRUDEAU: So the department’s ongoing – conducting a thorough search. I don’t have details on that, but at no point did we say to the RNC that we would not produce.

In February this year, Cause of Action also asked Senator Grassley of the Judiciary Comittee  and Congressman Chaffetz of the House Oversight Committee “to examine the similar issues that have arisen in the context of former Secretary of State Clinton and her closest advisors’ activities in the State Department.”

  1. Why were federal employees communicating over email accounts belonging to Mrs. Clinton’s campaign committee long after the campaign had ended?
  2. Why did Ms. Mills remain in possession and use of a campaign Blackberry during her employment at the State Department and who paid for that device?
  3. Who continued to pay for the hillaryclinton.com email accounts being used by federal employees?
  4. What other email communications, potentially implicating official government business, did federal employees have using Clinton campaign email accounts, and have such email communications been recovered and saved to official government recordkeeping systems?
  5. What other ex-campaign staffers employed at the State Department or elsewhere in the government continued to use their Hillary Clinton campaign email accounts?
  6. Does the email exchange between Mrs. Clinton and Ms. Mills with the subject line “My candidacy” (attached as Ex. 3) implicate a violation of the Hatch Act, which prohibits government employees from using government time and resources to engage in political and campaign activities?

The emails cited in this letter are available to read here (PDF).

 

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An Invitation to a Deposition: DC Court Judge Approves Extraordinary Procedure in FOIA Case

Posted: 10:18 am PT
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On May 4, U.S. District Court Judge Emmet G. Sullivan granted Judicial Watch to take testimony of former and current State Department employees in relation to an FOIA lawsuit related to the clintonemail. The Court notes that “discovery is rare in FOIA cases. Thomas v. FDA, 587 F. Supp. 2d 114, 115 (D.D.C. 2008) (Huvelle, J.) (noting that discovery is an extraordinary procedure in a FOIA action”). Discovery should be permitted, however, when a plaintiff raises a sufficient question as to the agency’s good faith in processing documents in response to a FOIA request.”

The Court writes:

[T]he circumstances surrounding approval of Mrs. Clinton’s use of clintonemail.com for official government business, as well as the manner in which it was operated, are issues that need to be explored in discovery to enable the Court to resolve, as a matter of law, the adequacy of the State Department’s search of relevant records in response to Judicial W atch’s FOIA request.
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Having considered Plaintiff’s proposed plan, State’s response, Plaintiff’s reply, and the parties’ jointly proposed order, and recognizing that Defendant has not waived its objection to discovery, it is hereby ordered that:

The scope of permissible discovery shall be as follows: the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action. Plaintiff is not entitled to discovery on matters unrelated to whether State conducted an adequate search in response to Plaintiff’s FOIA request, including without limitation: the substantive information sought by Plaintiff in its FOIA request in this case, which involves the employment status of a single employee; the storage, handling, transmission, or protection of classified information, including cybersecurity issues; and any pending FBI or law enforcement investigations.

The court authorized Judicial Watch to seek the testimony of the following witnesses per court filing:

Stephen D. Mull Executive Secretary of the State Department from June 2009 to October 2012 and suggested that Mrs. Clinton be issued a State Department BlackBerry, which would protect her identity and would also be subject to FOIA requests. (Note that Ambassador Mull is a former U.S. Ambassador to Poland and the current Lead Coordinator for Iran Nuclear Implementation at the State Department).

Lewis A. Lukens Executive Director of the Executive Secretariat from 2008 to 2011 and emailed with Patrick Kennedy and Cheryl Mills about setting up a computer for Mrs. Clinton to check her clintonemail.com email account. (Note that Ambassador Lukens is a former U.S. Ambassador to Senegal and Guinea-Bissau and currently Diplomat in Residence responsible for recruitment and outreach for the State Department in Montana, Alaska, Washington, Oregon, and northern California).

Patrick F. Kennedy Under Secretary for Management since 2007 and the Secretary of State’s principal advisor on management issues, including technology and information services. (Note that Ambassador Kennedy is now the longest serving Under Secretary of State for Management in the history of the State Department.  Besides Ronald Ian Spiers who served as “M” from 1983–1989, Kennedy would be the only other  Foreign Service Officer appointed to this position).

430(b)(6) deposition(s) of Defendant regarding the processing of FOIA requests, including Plaintiff’s FOIA request, for emails of Mrs. Clinton and Ms. Abedin both during Mrs. Clinton’s tenure as Secretary of State and after;

Cheryl D. Mills Mrs. Clinton’s Chief of Staff throughout her four years as Secretary of State

Huma Abedin Mrs. Clinton’s Deputy Chief of Staff and a senior advisor to Mrs. Clinton throughout her four years as Secretary of State and also had an email account on clintonemail.com

Bryan Pagliano State Department Schedule C employee who has been reported to have serviced and maintained the server that hosted the “clintonemail.com” system during Mrs. Clinton’s tenure as Secretary of State);

 

The court filing says that Judicial Watch reserves the right to seek the Court’s permission to take the deposition of Donald R. Reid at a later time, and State reserves the right to object. Reid is Senior Coordinator for Security infrastructure, Bureau of Diplomatic Security since 2003 and was involved in early discussions about Mrs. Clinton using her BlackBerry and other devices to conduct official State Department business. (Note that Mr. Reid’s Information Security responsibilities include the management of classified information programs, oversight of the Department’s Special Security Office, the operation of the Industrial Security program, and the investigation/resolution of security violations). 

Judicial Watch is granted 8 weeks to conduct its discovery plus a possible July surprise:  “Based on information learned during discovery, the deposition of Mrs. Clinton may be necessary. If Plaintiff believes Mrs. Clinton’s testimony is required, it will request permission from the Court at the appropriate time.”

Read the court ruling below; use the side scroll or maximize arrow at the lower right handside of the Cloudup box below. You may also read it here.

 

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Judicial Watch Submits Plan to Depose Top Ranking @StateDept Officials and 30 (b)(6) Witnesses

Posted: 1:54 pm EDT
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On February 23, Judge Emmet Sullivan of the District Court of the District of Columbia granted Judicial Watch’s (JW) motion for discovery related to the use of the clintonemail.com system by the former secretary of state and at least one other former State Department employee. The case is Judicial Watch vs. U.S. Department of State (Civil Action No. 13-cv-1363 (EGS)). Court records indicate that that JW need to submit a Discovery Plan To Court and Counsel by 3/15/2016 (see Court Grants Request to Interview Clinton Aides and @StateDept Officials Under Oath Over Email Saga).

In its court filing of March 15, JW submitted its plan to seek testimony from the following former and current officials of the State Department. Names and descriptions are as listed by JW:

Stephen D. Mull (Executive Secretary of the State Department from June 2009 to October 2012 and suggested that Mrs. Clinton be issued a State Department BlackBerry, which would protect her identity and would also be subject to FOIA requests);

Lewis A. Lukens (Executive Director of the Executive Secretariat from 2008 to 2011 and emailed with Patrick Kennedy and Cheryl Smith about setting up a computer for Mrs. Clinton to check her clintonemail.com email account);

Patrick F. Kennedy (Under Secretary for Management since 2007 and the Secretary’s principal advisor on management issues, including technology and information services);

Donald R. Reid (Senior Coordinator for Security Infrastructure, Bureau of Diplomatic Security since 2003 and was involved in early discussions about Mrs. Clinton using her BlackBerry and other devices to conduct official State Department business);

30(b)(6) deposition(s) of Defendant [designated witness(es) for the State Department] regarding the processing of FOIA requests, including Plaintiff’s FOIA request, for emails of Mrs. Clinton and Ms. Abedin both during Mrs. Clinton’s tenure as Secretary of State and after;

Cheryl D. Mills (Mrs. Clinton’s Chief of Staff throughout her four years as Secretary of State);

Huma Abedin (Mrs. Clinton’s Deputy Chief of Staff and a senior advisor to Mrs. Clinton throughout her four years as Secretary of State and also had an email account on clintonemail.com); and

Bryan Pagliano (State Department Schedule C employee who has been reported to have serviced and maintained the server that hosted the “clintonemail.com” system during Mrs. Clinton’s tenure as Secretary of State).

And here’s one we won’t know possibly until after the judge’s expected ruling on April 15 — Judicial Watch also seeks testimony from 30 (b)(6) witness or witnesses who can provide testimony on behalf of the State Department on the following issues:

  • the creation or establishment of the clintonemail.com system as well as any maintenance, service, or support provided by the State Department of that system;
  • the knowledge or awareness of State Department officials and employees about the existence and use of the clintonemail.com system;
  • any instructions or directions given to State Department officials and employees about communicating with Mrs. Clinton and Ms. Abedin via email;
  • any inquiries into Mrs. Clinton’s use of the clintonemail.com system as well as any discussions about responding to such inquiries or publicly revealing the existence and use of the clintonemail.com system to the public; and
  • the inventorying or other accounting of Mrs. Clinton’s and Ms. Abedin’s email upon their departure from the State Department.

The (b)(6) is in reference to the FOIA exemption which protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”

Judge Sullivan’s February 23 ruling required the State Department to respond by 4/5/2016.

The plan submitted to the court is available to read here (PDF).

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DOJ Grants Immunity to Bryan Pagliano, Ex @StateDept Staffer and HRC’s Former Server Guy

Posted: 2:16 am EDT
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Senators Seek to INTVW @StateDept CIO Taylor; Wait, Wasn’t He Overseas When Pagliano Was Hired?

Posted: 3:05 am EDT
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Two Senate chairmen are pressing the State Department for more information about the staffer who maintained Hillary Clinton’s controversial email server, including requesting an audience with his former supervisor.

Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Homeland Security Chairman Ron Johnson (R-Wis.) asked that Steven Taylor, State’s chief information officer, sit for a closed-door interview about the duties of his former subordinate Bryan Pagliano, according to a letter the senators sent to Secretary of State John Kerry.
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Mr. Taylor is a member of the Senior Foreign Service with the rank of Minister Counselor. He has been the Chief Information Officer of the State Department since April 3, 2013. He was previously appointed as Acting CIO on August 1, 2012. Preceding his assignment as CIO, he was the Department’s Deputy Chief Information Officer (DCIO) and Chief Technology Officer of Operations from June, 2011.

We should note that Secretary Clinton left the State Department on February 1, 2013, two months before Mr. Taylor was appointed CIO. In fact, according to this official biography, prior to his DCIO assignment in 2011, he served as Management Counselor in Cairo and Athens. So we’re guessing that between 2005 to 2011, this poor man was posted overseas and nowhere near the hiring desk when Mr. Pagliano was brought into the IT bureau of the State Department in 2009.

Not that it’s going to matter. The senators will probably drag Mr. Taylor before a closed-door interview still the same. Pagliano joined the State Department in May 2009. Maybe the senators should try the Bureau of Human Resources for their hiring and work duties questions?

Foggy Bottom’s Email Debacle Spreads Beyond Clinton Inner Circle

We don’t think this is going to stop at Mr. Taylor.  On September 14, conservative group Judicial Watch has also released a heavily redacted email, obtained through its FOIA lawsuit, between State Department official Eric F. Stein and Margaret P. Grafeld, dated April 21, 2015, with the subject “HRC Emails.”  Stein is deputy director of Global Information Systems (GIS) at the State Department and Grafeld is deputy assistant secretary of Global Information Systems (GIS). Stein reports to Grafeld that the “gaps” in Clinton’s emails include:

  • Jan. 21 – March 17, 2009 (Received Messages)
  • Jan. 21 – April 12, 2009 (Sent Messages)
  • Dec. 30, 2012 – Feb. 1, 2013 (Sent Messages)

Screen Shot 2015-09-15

On September 14, the State Department spox was asked about these gaps during the DPB and he maintained that there is no gap. Here is the exchange:

QUESTION: There was a release today by Judicial Watch from its lawsuit, and it cited several email gaps it claims existed in the former secretary’s list of ledger – full ledger of work-related correspondence.

MR KIRBY: Yep, seen the press report, Brad. We’re not aware of any gaps in the Clinton emails set with the exception of the first few months of her tenure when Secretary Clinton used a different email account that she has already advised she no longer has access to. And as I understand it, Secretary Clinton’s representatives have publicly stated that she used a separate email account in those first few months of her tenure. But beyond that, there’s no gap that we have seen or are aware of in Secretary Clinton’s email messages.

QUESTION: In that early part, you mentioned there was a gap of, I think, one month before – from the first received email to the first sent email. Now, I realize it’s fully possible she didn’t send an email that was work-related in that first month – that first month when she had that account, but is that your understanding or is that still an incomplete – you’re still fully researching all of those emails or unearthing them?

MR KIRBY: I know of no research attempt to deal with those first few months, Brad, because, as I said, former Secretary Clinton’s representatives already indicated that they were aware this gap existed and that she had – no longer had access to them. So it’s difficult if not impossible to do any particular research or forensics to get at those first few months. And as for how many were sent and received in that timeframe, I just don’t know. But this is not something that hasn’t been addressed before by her representatives. And beyond that first couple of months, those first four months, we have seen no gaps.

QUESTION: And in the last part of – in the last part of her tenure, there was what they cited was another gap in January 2013, which I’m guessing you’re saying is not a gap, in fact.

MR KIRBY: That’s correct.

QUESTION: Can you – they produced an email which showed an official saying there’s a gap or listing it as a gap. Do you understand what happened? Were those emails then later recovered or found?

MR KIRBY: Right. So we continue to maintain there’s no gap. I think you’re talking about this period of December 2012 through the end of January 2013.

QUESTION: Right.

MR KIRBY: And upon further review – so originally when they all came in, a cursory sort of preliminary look, a very quick look at the documents by an official here at the State Department revealed a potential gap of about a month or so in emails. But in going through them in a more fulsome manner after that, we’ve determined that in fact, there was no gap – that that time period is covered quite well by the emails that have been provided.

QUESTION: So you have emails from that period and —

MR KIRBY: We do.

QUESTION: — when you get to that point, they’ll be public.

MR KIRBY: We do, and I think you will continue to see – and we’ve been roughly rolling these out – roughly temporally and you will see – as we get to the remainder of the tranches, that you will see emails that were sent and received during that December ’12 to January ’13 timeframe.

That’s not going to end there.  The “gaps” will be too tantalizing to ignore.

This email released by Judicial Watch also includes a few more names, including Richard C. Visek, the State Department’s Deputy Legal Adviser and also the Designated Agency Ethics Official (DAEO). We suspect that it’s only be a matter of time before the somebodies in Congress would request the official apperance and interview with Margaret P. Grafeld, Eric F. Stein, and heaven knows, who else.

Related item:

Congressional Drama Features Ex-Clinton IT Staffer Bryan Pagliano, Good Excuse to Check Your PLI Coverage

Posted: 5:27 am EDT
Updated: 3:03 pm EDT
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Bryan Pagliano worked on Hillary Clinton’s 2008 presidential campaign and reportedly helped manage her server at that time. When Clinton became secretary of state in 2009, Pagliano got a job at the State Department.  This report citing public federal records says that he was classified as a GS-15 in his job as a special advisor and deputy chief information officer at the State Department. He earned around $140,000 per year from 2010-2012.  He was also reportedly paid personally by the Clintons to continue managing the private server from 2009 to 2013.

The State Department confirmed on September 3, that Mr. Pagliano was employed by the State Department from May 2009 through February 2013 as an IT specialist, and that he currently serves as a contractor working in the Bureau of Information Resource Management (State/IRM). The State Department also said that it was not consulted on Mr. Pagliano’s decision to take the 5th.   “He has pleaded the Fifth, so to speak. It’s certainly not an admission of guilt, as we all know, but it’s his constitutional right, so we respect that,” the official spokesperson said.

That’s not the end of it, of course. The House Select Committee on Benghazi is reportedly requiring Mr. Pagliano’s presence, which prompted a stern letter Wednesday from Pagliano’s lawyer, who accused the panel and its chairman, Rep. Trey Gowdy (R-S.C.), of engaging in political theater and abusing its subpoena power, according to the Washington Post. Politico also has a report today noting that Pagliano’s lawyer, Mark MacDougall has said in a letter to two congressional panels 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.”

Even if you’re in no danger of getting snared in the Clinton controversies, isn’t this case a good reminder to review one’s Professional Liability Insurance coverage? PLI covers not just admin and disciplinary matters, but also congressional and OIG investigations. For eligible employees, the State Department regulations allow the reimbursement of up to 50% of PLI cost (see 3 FAM 3840 – pdf).

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