For example, let's take Clinton tech aide Bryan Pagliano, who was granted some form of immunity by the Justice Department. The timeline on this seems confusing, but I'll summarize information I found:

In March of 2016, Republican senators sought to compel Mr. Pagliano's testimony reportedly indicating that his grant of immunity by the DOJ prohibited him from invoking the Fifth Amendment right against self-incrimination. In May, it was reported that "The [State] Department has searched for Mr. Pagliano’s email pst file and has not located one that covers the time period of Secretary Clinton’s tenure,”

In June 2016, it was reported that Pagliano had filed a motion in seeking to keep the immunity agreement secret in a case involving a Judicial Watch FOIA request. Later that month the judge the document should remain sealed “because the government’s criminal investigation through which Mr. Pagliano received limited immunity is ongoing and confidential.” (Presumably Pagliano's deal was related to the FBI investigation into the private e-mail server he administered for and which Hillary Clinton used instead of official state department servers.)

Later, on September 13 of 2016, the House Oversight and Government Reform Committee voted to send to send a contempt resolution to the full House for Pagliano's refusing to testify in a hearing. (Note: Pagliano's attorney indicated he would take the 5th in open session, but be willing to testify in closed session.) Wikipedia's summary indicates that the full House never considered the resolution.

Can Congressional Committees still compel Mr. Paliano's testimony?

Has this situation been clarified in the subsequent 24+ months?

1 Answer 1


If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case.

However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains.

Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all.

So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion.

Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations.

  • Worth noting that the immunity granted is "limited". Notwithstanding, the DoJ can only grant immunity for Federal crimes - if a state or even another nation could launch a criminal case then the fifth is still in play.
    – Dale M
    Dec 10, 2018 at 6:27
  • @Dale M If I recall correctly, a "limited" immunity means that the testimony cannot be used, but then witness could still be prosecuted provided it could be done without invoking that testimony. But I don't have a source for that Dec 10, 2018 at 6:30
  • @Dale M I believe that there was a 1950s or 60s case in which a witness was granted Federal immunity, but claimed that he could invoke the Fifth because there could be state prosecution. IIRC the federal court denied immunity and compelled testimony under penalty of contempt.. But I can't recall the case and can't find a source, and I might be mistaken, or later cases might have changed the law. Dec 10, 2018 at 6:33
  • 1
    @Dale M I was incorrect, and so were you. Federal grants bar state use, and vice versa. I have added the relevant citations to my answer. Dec 10, 2018 at 7:33

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