Double Standard

How the David Petraeus Prosecution Backfired

The former director of the CIA got off easy after leaking classified material to his mistress. Other leakers aren’t so lucky.

04.22.15 8:05 PM ET

April 23, 2015 Editor's note: This story has been updated throughout below to reflect Thursday's sentencing and statement from David Petraeus.

The sordid tale of marital infidelity, cyber-stalking, and spilled secrets surrounding former CIA director David Petraeus came to a close Thursday, when the former four-star general was sentenced for his crimes.

U.S. Magistrate Judge David Keesler in Charlotte, N.C., sentenced Petraeus to two years probation, and a $100,000 fine. Prosecutors had suggested a $40,000 fine, but the judge said he increased the fine because Petraeus committed a "grave but uncharacteristic error in judgement," and the larger fine was more punitive in light of the former general's income.

"I apologize to those closest to me and many others including this court for the pain my actions have caused," Petraeus said in court, adding later: "I now look forward to moving on to the next phase of my life and continuing to serve as a private citizen."

The hearing Thursday to sentence Petraeus for giving his former girlfriend and biographer Paula Broadwell highly classified information happened only a few miles from her home in North Carolina. Petraeus entered his plea on one misdemeanor count of unauthorized removal and retention of classified material before Keesler.

But Petraeus’s relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.

“This is a horrible choice by the government,” said Mark Zaid, a national security lawyer for more than two decades. “I think it is going to have a negative impact. The judges who are going to be truly objective are going to look at the Petraeus case. Going forward, it is going to hurt the government’s cases.”

Petraeus is the second director of the CIA to be convicted for actions while leading the agency. President Nixon’s director, Richard Helms, was convicted in 1978 of lying to Congress about the CIA’s role in overthrowing President Salvador Allende of Chile. He received a two-year suspended sentence and a $2,000 fine.

And after John M. Deutsch, who served under President Clinton, left office, he was accused of mishandling classified information on his laptop. He lost his security clearance, but he was never prosecuted. Clinton pardoned him on his last day as president.

Petraeus has the distinction, however, of being the only director forced to resign because of misdeeds while serving,

Marc Raimondi, spokesman for the National Security Division at the U.S. Department of Justice, declined to comment on the case.

“I have nothing to add beyond what is available in the public documents,” he said in an email.

One national security lawyer who has defended leakers said that as there haven’t been many prosecutions of this type, every case matters—and especially Petraeus’s because of his high profile.

“I think the message they think they are sending is don’t leak, and if you do you better come clean and run in and plead guilty,” said the lawyer, who asked for anonymity because he has ongoing cases against the government. “If you don’t, the consequences will be extraordinary. The message they are sending is it is a very unjust system. If you’re a well-respected general, you have a different set of guidelines.”

Petraeus, who was one of the best-known military leaders of the past decade and a valuable adviser to the Obama administration, joins a short list Thursday of convicted leakers who either served time or are in prison.

Chelsea Manning, formerly Bradley Manning, was sentenced to 35 years in prison in 2013 for disclosing classified documents to WikiLeaks. Stephen Jin-Woo Kim, a former State Department contractor, entered a guilty plea last year to one felony count of disclosing classified information to a Fox News reporter in February 2014. He was sentenced to 13 months in prison.

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On Monday, prosecutors urged a judge to sentence Jeffrey Sterling, a former CIA officer, to at least 20 years in prison for leaking classified plans to sabotage Iran’s nuclear-weapons program to a New York Times reporter. Sterling will be sentenced next month.

And former CIA officer John C. Kiriakou served 30 months in federal prison after he disclosed the name of a covert operative to a reporter. He was released in February and is finishing up three months of house arrest.

In October 2012, Petraeus, then director of the CIA, praised the Kiriakou conviction.

“Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy,” he said in a statement.

Petraeus was never in danger of jail time, however. His misdemeanor charge carried a possible one-year prison sentence, but prosecutors suggested a sentence of two years’ probation and a $40,000 fine in return for a guilty plea. Keesler was free to reject the prosecutors’ recommendation, but that would have been a rare occurence.

Still, Petraeus can easily make the $100,000 fine back in a few speaking engagements and likely makes seven figures as a partner at KKR, an equity firm, Zaid said. Indeed, Petraeus’s star hasn’t fallen far despite the charges, a very public affair, and his resignation from the CIA. He is advising the National Security Council on the self-proclaimed Islamic State, according to the White House. He is also a visiting professor at two universities.

“This is a sweetheart deal,” Zaid said.

Zaid and other lawyers interviewed by The Daily Beast said Petraeus’s sentence might give judges pause the next time the government asks for harsh penalties for leakers.

“I don’t want them to throw the book at Petraeus,” the national security lawyer said. “I think he served our country well. I think it is an example of how people can screw up. I think this ought to be how we treat things. When they use the Espionage Act in the future, they’re going to have to be mindful of how they treated Petraeus.”

Petraeus gave his mistress, Broadwell, eight “bound, five-by-eight inch notebooks that contained his daily schedule and classified and unclassified notes he took during official meetings, conferences and briefings,” the U.S. Attorney’s Office for the Western District of North Carolina wrote in a statement of fact regarding the case. He kept the notebooks as commander of coalition forces in Afghanistan. Broadwell was working on a biography of the general at the time.

The leak and his affair with Broadwell were discovered during an investigation of cyber-stalking in which Broadwell was allegedly sending threatening emails to a female friend of Petraeus. Petraeus initially lied about having classified information and giving it to Broadwell.

Broadwell hasn’t been charged with any crimes. She is still in the Army Reserves.

David Kendall, Petraeus’s lawyer, declined to comment on the case in an email to The Daily Beast but said in a letter published in The New York Times in March that Petraeus’s case differs from the other leak cases.

“General Petraeus’s case is about the unlawful removal and improper storage of classified materials, not the dissemination of such materials to the public,” he wrote.

He argued the general’s misdemeanor charge is “routinely invoked (without prison sentences) for government employees who mishandle (but do not disclose to the public) such information, either negligently or intentionally.”

None of the information provided to Broadwell was published in the biography, while the intelligence report leaked by Kim was published and Kiriakou disclosed the true names of covert officers, according to Kendall.

But a March letter from Kim’s attorney, published by Peter Maass at The Intercept, argues for the release of his client in the wake of the Petraeus deal. Attorney Abbe David Lowell argues the cases have similar facts, including lying to FBI agents. Before the trial, Lowell sought to get Kim’s charges reduced to unauthorized removal and retention of classified material, the same charge as Petraeus.

“We know that you can come up with any number of factors (as lawyers are trained to do) to distinguish the two cases,” Lowell wrote in the letter. “However, that is just an exercise in lawyering. At the bottom line, the activities are the same.”

He said a double standard exists that punishes those who lack the resources or political clout to fight the case.

“High-level officials (such as General Petraeus and, earlier, Leon Panetta) leak classified information to forward their own agendas (or to impress their mistresses) with virtual impunity,” Lowell writes.

But David Pozen, a law professor at Columbia University, said Petraeus’s case likely wouldn’t fundamentally change the way leak cases are investigated and prosecuted.

“It is not implausible that it would push the norm around sentencing to a softer place,” said Pozen, who has researched and published a legal paper on leaks. “But that totally depends on how effective future defense lawyers are drawing their cases to the Petraeus case.”

Pozen said punishing leakers, especially after they’ve left government service, is difficult.

“There is often a sense that the penalties seem very harsh compared to some of the offenses,” he said. “In most cases, when someone has already left government, it can be hard to find what penalties are available besides criminal. The prosecution seems to have stretched to find non-prison-based remedies. They are actually using some creativity, finding softer ways to get at conduct they are worried about.”