As discussed this week by the TechDirt, new evidence is further contradicting the account of Hillary Clinton as her former aides have increasingly refused to answer questions in depositions or, in one case, invoked the Fifth Amendment over 125 times. New evidence shows that the State Department was faced with an incompatible use of an unsecured server in sending emails to State Department staff. Efforts to convince Clinton to use the secure State Department system were rejected. Instead, the State Department “solved” the problem by removing security protections — essentially lowering the communications to the security level of the the private server. Moreover, as reported by CBS, it is now clear that Clinton did not turn over a critical email expressing her desire to deny access to “personal” emails despite assuring the country that anything remotely connected to the State Department or email system was turned over before her aides deleted tens of thousands of emails.

The recently released emails show that Clinton staff were aware of hacking efforts and that, in order to allow the unsecure email system to send emails to State Department employees, as reported by the Associated Press, “State Department technical staff disabled software on their systems intended to block phishing emails that could deliver dangerous viruses.”

One email warns that “You should be aware that any email would go through the Department’s infrastructure and subject to FOIA searches.”

The State Department Inspector General directly contradicted the continuing claim from Clinton that her use of an unsecure system was “allowed” and that it did not violate any rules. The IG found that Clinton and her staff ignored rules that clearly showed that her server violated federal standards and put classified information at risk: “Her aides twice brushed aside concerns, in one case telling technical staff “the matter was not to be discussed further.“

It has also been disclosed that both Clinton and her aides refused to speak with the IG despite the view of the State Department that such interviews were important for its investigation. Now Clinton aides are refusing to answer questions in deposition and in the case of Bryan Pagliano, a Clinton IT aide, he has invoked the Fifth Amendment 125 times to refuse to answer questions.

That raises the possibility that, by giving Pagliano immunity, the Administration may have protected the aide most likely to have been charged criminally (and thus most likely to incriminate others following an indictment). Right now, Pagliano is refusing to answer questions in the civil litigation while Clinton aides are refusing to answer critical questions related to the motivation and maintenance of the private server (as well as the criteria and decisions made in the deletion of tens of thousands of emails).

I have said before that this may be a building confrontation between the FBI and the Justice Department on criminal charges. The lack of cooperation shown by critical parties and false public comments about the investigation and underlying legal standards would normally push investigators toward charges. On the other hand, as discussed earlier, the sweetheart deals given former Clinton aide Sandy Berger and most recently General Petraeus. These past cases still give Hillary Clinton the edge on potential criminal charges. However, the greatest threat has always been the vulnerability of her aides. That risk was reduced with Pagliano’s immunity deal and the decision for all of the key aides to be represented by the same lawyer. Unlike the State Department, a decision not to indict would not ordinarily result in a public report of the findings of the investigators on issues like hacking or compromised systems.. By the time that the Congress gets access to such material, it could well be after the election. Only an indictment will bring a public record of such evidence (though even that can be sealed in some cases).

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