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We learned yesterday that Brian Pagliano, Hillary Clinton’s IT staffer who worked for her during her stint as Secretary of State and set up and maintained her private email server, has refused to honor a congressional subpoena to appear and testify as to his role in the private server scandal. Despite being granted immunity by the FBI for his testimony to their investigators behind closed doors, Pagliano previously took the Fifth when last called upon by Congress to testify and his lawyers gave that as his reason for declining to honor this new subpoena to testify before a different congressional committee this time. Since he would only take the Fifth again, they declared, why bother?

Their challenge to Congress hinges on their client’s arrogating to himself the right to decide whether or not he has to take the Fifth in person twice or whether doing so one time covers everything. The argument that he can simply disregard a second subpoena because he didn’t disregard the first assumes that Congress has no new questions to pose, which he hasn’t already been asked and which would once again prompt him to invoke his Fifth Amendment right to refuse to testify. This argument, that Pagliano only need be responsive to Congress once disregards the Constitution which does not impose such a limit on Congressional power to subpoena. Thus accepting his lawyers’ argument would effectively diminish congressional subpoena power. Counting on a Hillary presidential win, Pagliano obviously figures he can safely ignore this particular subpoena. If she wins, after all, he’s home free because a Clinton Justice Department would no more prosecute him for contempt than this present Obama Justice Department is likely to (having already failed to enforce a Contempt of Congress citation in previous clashes with the administration).

Two officers of the IT firm, Platte River, were also called to testify with Pagliano and they showed up only to take the Fifth themselves. No doubt they are banking on a likely Clinton win this November, too, and so have no wish to provide information that she could deem damaging to her chances, thus ensuring their own continued access to Hillary, a Clinton White House, and the Federal government generally in 2017 and after. Besides, like so many Americans they no doubt find a Trump win especially unappealing so why offer testimony that could help that along? Trump continues to demonstrate his many deficiencies, scaring many voters towards the Clinton camp despite her own obvious troubles (from email scandals to pay for play allegations concerning the Clinton Foundation and now including her apparent health issues). So whether it’s to ensure continued access to the next president or to avoid contributing to a Trump victory, the Platte River boys have every reason to take the Fifth Amendment route or even, like Pagliano, to flout Congressional authority at some point if it comes to that.

But this sets a terrible precedent. The Obama presidency has significantly eroded the role of Congress over these past nearly eight years and either a Clinton OR Trump presidency promises to do the same given her promises to out-Obama the president in terms of executive orders (plus her history of bending and breaking rules in her own interest) and Trump’s arrogant behavior and public statements. The Constitution empowers Congress to seek and take testimony by demanding witness’ appearance as part of its legislative function. But the modern imperial presidency has been steadily undermining this power. Whether Trump or Clinton wins in November, our Constitution has already been, and will likely continue to be, seriously compromised by this kind of calculus which political figures, and now private citizens like Pagliano and, perhaps, the Platte River computer company executives, feel empowered to make.

Republicans have only themselves to blame for Trump, of course, but the American electorate as a whole will be to blame for choosing either of them come November. What could the electorate do instead? Americans can still rise up in disgust at the two terrible choices presented to them by the major parties and demand a better alternative. Gary Johnson may be a weak option for a variety of reasons but he is neither Trump nor Hillary and that’s saying a lot so voters aren’t without any options here. Indeed, those responding to polling company questionnaires could condemn both major party candidates instead of picking one or the other on offer, indicating “neither” or a third party candidate as their choice, instead. At the least it might help leverage Johnson, the struggling Libertarian candidate, who is seeking to claim a place for himself on the upcoming debate state.

If a grassroots movement for an alternative began to surface, as detected in such polls, it would give the major parties pause at the very least. Even the major party presidential candidates would have to take some notice, perhaps recalibrating their stump speeches and platforms. Indeed, what would happen if America held a presidential election and nobody came? If one can’t bring oneself to choose Johnson, one can at least vote by not voting for a president at all. Of course, it’s unrealistic to expect vast numbers of Americans to sit this one out but what if turnout, at least for the presidential side of the ballot, was way below expectations? Whoever wins under that circumstance must be on notice that their “mandate” is feebler than others who have trod this path before them. And a weaker Trump or Hillary presidency is better than a stronger one.

It would certainly be epoch making, at least, for the electorate to reject both major party candidates — nor is it impossible, especially when there are two such awful choices on the table. But if people don’t want to withhold their votes entirely or can’t bring themselves to vote for the sometimes strange seeming Gary Johnson, why not Evan McMullin then, or even a draft Paul Ryan movement? Is the electorate ultimately so hamstrung that it must accept whoever the major party rank and file hands us no matter how bad the options? Can’t we Americans simply assert ourselves and publicly demand someone — anyone — else but Trump or Clinton? This has already been a tradition shattering election year, breaking all the molds. Why shouldn’t angry and genuinely frustrated voters break another?

About Stuart W. Mirsky

Profile photo of Stuart W. Mirsky
Stuart W. Mirsky, a former New York City official who last served as Assistant Commissioner for Operations in the New York City Department of Health and Mental Hygiene before retiring in 2002, wrote a column, "The Rockaway Irregular," for The Wave, a south Queens based weekly, for more than a decade (until Hurricane Sandy changed the equation). He is an original founder of the Rockaway Republicans, one of the most active Republican groups in southern Queens, and author of a number of books, including The King of Vinland's Saga, an historical novel of the Norse in 11th century North America, A Raft on the River, a memoir of Holocaust survival, and Choice and Action, a work of contemporary philosophy addressing the implications of relativism and nihilism for our moral beliefs.

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