David Petraeus Resigns

11.19.12

Should Eric Holder Have Told Obama About the Petraeus Scandal Sooner?

The attorney general defends his decision to delay informing Obama about the Petraeus probe. But several ex-Justice officials think Holder erred. James Warren reports.

When Attorney General Eric Holder kept word from President Obama about investigating then-Central Intelligence Agency Director David Petraeus, he took what he deemed a high road in following protocols governing when it’s appropriate to inform the White House of criminal probes.

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Attorney General Eric Holder speaks at a news conference in New Orleans on Nov. 15, 2012. (Sean Gardner / Getty Images)

He might also have been displaying lousy judgment, according to several former high-ranking Justice Department officials.

“Bad judgment on a matter of large consequence,” says one former high-ranking department official.

Several former Justice officials, all Democrats, agreed. All declined to have their names used. And they neither disparaged Holder’s honesty nor impugned his motives. But while they conceded that a strict constructionist take on department rules or perceived policy could justify not telling Obama far earlier, to a person these sources feel the Petraeus case underscores the evolution of needlessly rigid practice that ill serves any White House.

There is a long and tawdry history of politicization of the relationship between the White House and both the Justice Department and FBI. The most vivid offenders included longtime FBI Director J. Edgar Hoover, who illegally collected personal information on individuals for political reasons, and President Richard Nixon, whose attempts to misuse the CIA and FBI were central to the Watergate scandal.

In recent times, there were the 2006 firings of nine U.S. attorneys nationwide by the Justice Department during the second term of President George W. Bush. Politics played an important part, given a White House desire to either stall investigations of Republicans or start investigations into Democrats.

The Justice Department’s inspector general concluded that the dismissals were “arbitrary” and “raised doubts about the integrity of department prosecution decisions.” Attorney General Alberto Gonzales ultimately resigned amid a firestorm of congressional questioning and outrage.

Michael Mukasey, a former New York federal judge, who then authored an internal memo about department contacts with the White House during criminal investigations, replaced Gonzales.

While the memo is frequently cited as forbidding such communications, “the point is not that the White House can never be apprised of a pending criminal investigation; the point is that the White House should not reach out and influence a pending criminal investigation,” Mukasey recently said.

A look at the actual 2007 memo, which is not in any way binding on department officials, bolsters his analysis.  The memo maintains that “it is critically important to have frequent and expeditious communications relating to national security matters, including counter-terrorism and counter-espionage issues.”

The memo is open to varied interpretations and can easily be read to argue that the Justice Department, as well as the FBI, should tell the White House or other relevant political officials about a discovery such as those at the heart of the Petraeus case.

It’s now clear that by at least late July, Justice and FBI officials were looking into Petraeus and his affair with his biographer, Paula Broadwell. Justice and FBI officials informed director of National Intelligence James Clapper on Election Day, Nov. 6; President Obama was informed Nov. 8.

Holder felt he had been on firm ground in keeping the information from Obama. His thinking was that one doesn’t inform the president of ongoing criminal cases unless they had clear national security implications or impacted the executive branch in obvious ways.

Aides say that the presidential campaign played a role, too. It wasn’t that Holder sought to shield the president from embarrassment; rather, he wanted to avoid any possible appearance or implication that the White House might interfere with the investigation, they say.

It would certainly have been wrong for Obama to meddle with the investigation for political reasons. But it arguably would not have been wrong for him to know about and discuss the matter, especially since it had bearing on the future of his intelligence chief.

A longtime adviser to Democratic presidents, including Obama, supported Holder. Asked if he thought he erred in the Petraeus matter by not telling Obama earlier, he said simply, “No.”

Still, even former Justice officials who sympathize with Holder, and see his actions as well intentioned and not aimed at protecting his boss from scandal, argue he went astray.

As long as he kept word of the investigation from Obama, they say, he was sitting on information with unavoidable implications for national security since they involved the CIA chief. If he felt he was following the correct protocol, he was simply being too rigid, they contend.

“The question was not whether Petraeus had breached security,” said one, “but whether actions raised questions about his judgment and discipline and created vulnerabilities to blackmail.”

“Clapper obviously thought the situation required his [Petraeus’s] resignation,” said this official, alluding to the director of national intelligence's recommendation to Petraeus that he step down.

“If [there were] not national security implications, then why tell Clapper when they did?” said a former Justice official.

This source notes how, for about three months, the Justice Department knew of conduct by Petraeus that the DNI himself would later conclude merited his resignation. The judgment on whether there was a threat to national security was not Holder’s to make, say his partly sympathetic critics. It was the president’s.

But for those three months, the president was denied the chance to make his own decision—and, perhaps, to leave Petraeus in office. It would certainly have been wrong for Obama to meddle with the investigation for political reasons. But it arguably would not have been wrong for him to know about and discuss the matter, especially since it had bearing on the future of his intelligence chief.

When asked about the sequence of events at his White House press conference last week, Obama said he was reserving judgment on whether the course taken was the correct one.

As for recent precedents for informing the White House of criminal investigations, they exist. Several former Justice Department officials cited the details of examples in which they had communicated possible criminal actions to various parts of the government, including the White House.

Though they asked that those details not be disclosed, they said they generally involved prospective actions, including antitrust indictments involving foreign governments and companies.

The notifications to others within the U.S. government were generally prompted by the possibility that action by the Justice Department could potentially impact U.S. foreign or trade relations and, in some instances, conceivably expose intelligence sources.