U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–006 

" ! HOUSE OF REPRESENTATIVES 

114TH CONGRESS

2d Session 

REPORT

2016

114–792 

House Calendar No. 152 

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 

SEPTEMBER 27, 2016.—Referred to the House Calendar and ordered to 

be printed 


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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 


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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. 


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1McGrain v. Daugherty, 273 U.S. 135, 174 (1927). 2Watkins v. United States, 354 U.S. 178, 1887 (1957). 

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

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

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. 


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3 U.S. CONST., art I. § 5, clause 2. 4 House rule X, clause (1)(n). 

5 House rule X, clause (4)(c)(2). 

6 Id. 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 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

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. 

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. 


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10See, 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. 11Letter 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. 12See 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. 13Statement of Hillary Rodham Clinton, Mar. 10, 2015. 14See, 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. 15Merit 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). 17Fed. Records Modernization Act, H.R. 5709, 114th Cong. (as reported by the H. Comm. on 

Oversight & Gov’t Reform, July 12, 2016). 18Oversight 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). 19Letter from Hon. Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov’t Reform, to 

Hon. James Comey, Dir., Fed. Bureau of Investigation, July 11, 2016. 20Letter 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. 

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

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

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 

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21See, 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). 22Telephone 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. 23Telephone 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. 24Letter 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. 25Subpoena from H. Comm. on Oversight & Gov’t Reform to Mr. Bryan Pagliano (Sept. 8, 

2016). 26Letter 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. 28Letter 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. 

sumed 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

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

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

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

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 


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29 Id. at 2. 30 Id. 31Letter 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. 

32Letter 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. 33 Id. at 3. 

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

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. 

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: 

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

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, threatVerDate Sep 11 2014 07:38 Sep 28, 2016 Jkt 059006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR792.XXX HR792

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ens 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: 


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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. 


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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. 


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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. 


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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). 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). 3 Id. 

• 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 reinvestigate 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 workrelated 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

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

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

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 


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4D.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/legalethics/opinions/opinion358.cfm) 5 Id. 

6 House rule XXIII, clause 1. 

7Letter from Mark J. MacDougall, Counsel for Bryan Pagliano, to Chairman Trey Gowdy, 

House Select Committee on Benghazi (Sept. 8, 2015). 

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

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

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

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

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 evaluVerDate Sep 11 2014 07:38 Sep 28, 2016 Jkt 059006 PO 00000 Frm 00017 Fmt 6604 Sfmt 6602 E:\HR\OC\HR792.XXX HR792

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8Letter from Chairman Trey Gowdy, House Select Committee on Benghazi, to Mark J. 

MacDougall, Counsel for Bryan Pagliano (Sept. 9, 2015). 9Deposition 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/). 10Minute 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). 11Letter from Chairman Jason Chaffetz, House Committee on Oversight and Government Reform, to Mark J. MacDougall, Counsel for Bryan Pagliano (Sept. 7, 2016). 12 House Committee on Oversight and Government Reform, Subpoena to Bryan Pagliano 

(Sept. 8, 2016). 

13Letter 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. 

ate 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. § 6005.’’ 8

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

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

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

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

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 


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15 Id. 16Letter from Chairman Jason Chaffetz, House Committee on Oversight and Government Reform, to Mark J. MacDougall, Counsel for Bryan Pagliano (Sept. 12, 2016). 

rights before the Select Committee on Benghazi, his attorneys explained: 

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

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. § 6005.16

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 


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17Letter from Mark J. MacDougall, et al., Counsel for Bryan Pagliano, to Chairman Jason 

Chaffetz, House Committee on Oversight and Government Reform (Sept. 21, 2016). 18Letter from Chairman Jason Chaffetz, House Committee on Oversight and Government Reform, to Mark J. MacDougall, Counsel for Bryan Pagliano (Sept. 12, 2016). 19 House Committee on Oversight and Government Reform, Hearing on Examining Preservation of State Department Federal Records (Sept. 13, 2016). 

Amendment rights and will decline to answer any questions put to him by your Committee.17

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

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

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 selfincrimination 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 


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20Letter from Mark J. MacDougall, et al., Counsel for Bryan Pagliano, to Chairman Jason 

Chaffetz, House Committee on Oversight and Government Reform (Sept. 13, 2016). 21 America’s Newsroom, Fox News (Sept. 9, 2016). 22 Id. 23GOP Lawmaker: FBI Gave Immunity to Top Clinton Aide, Associated Press (Sept. 23, 2016). 

citizen repeatedly asserting his Fifth Amendment rights 

for no legitimate legislative purpose.20

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

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

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

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. 


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24 House Committee on Oversight and Government Reform, Hearing on Examining Preservation of State Department Federal Records (Sept. 13, 2016). 

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

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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