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                                                 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.


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