“What we did was conduct the investigation in the way that we normally conduct criminal investigations,” Holder told reporters. “We do not share, outside the Justice Department, outside the FBI, the facts of ongoing investigations.”
But the criminal investigation remains open. No final determination has been made on criminal charges, according to law enforcement officials. Investigators are focusing on classified information that they have found on the computer and in the home of Paula Broadwell, the author of a book about Petraeus and the woman with whom he was having an extramarital affair.
Sen. Charles E. Grassley (R-Iowa) wrote a letter to Holder and FBI Director Robert S. Mueller III, asking for a timeline and a briefing on the investigation. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate intelligence committee, said she still thinks the panel’s leadership should have been briefed on “an operationally sensitive matter.”
Senior Justice Department officials had known since the summer about an investigation involving Broadwell and threatening e-mails she had sent to a woman in Tampa. Those e-mails concerned investigators because they indicated that the sender knew the travel plans and movements of Petraeus and Gen. John R. Allen, the top U.S. commander in Afghanistan.
At the time, Justice Department officials were also told that Petraeus was having an affair with Broadwell. They were informed that investigators, however, had found no evidence of a national security breach.
Holder said Thursday that it was not until two months later, after the FBI completed a “critical interview” in November, that the department was ready to disclose the information it had to Petraeus’s boss, Director of National Intelligence James R. Clapper Jr.
The “critical interview,” officials have said, was a reference to the last interview investigators conducted with Broadwell, when she said Nov. 2 that Petraeus had not provided her with classified information — an assertion the CIA director had also made Oct. 29 when the FBI interviewed him.
Four days after the interview with Broadwell, about 5 p.m. on Election Day, Deputy FBI Director Sean Joyce notified Clapper about the inquiry. Clapper called Petraeus that night and advised him to resign.
Law enforcement officials, speaking on the condition of anonymity because of the sensitivity of the matter, said the election was not a factor in their decision on when to notify the executive branch.
One law enforcement official said that after the final interview with Broadwell, investigators were satisfied that Petraeus did not give her classified documents and would not be charged with a crime. It was at that point that they decided they could share the information about his affair.
But other law enforcement officials with knowledge of the investigation said that no final decision has been made on possible charges against anyone involved in the matter.
“While an investigation is ongoing, how can you say that a decision has been made not to charge anyone?” said one law enforcement official with knowledge of the case. “How can you say that Petraeus is not being investigated anymore? The whole situation is still under investigation.”
Law enforcement officials have said that the investigation at this point is focused on the source of the many classified documents found in Broadwell’s possession and the possible mishandling and storage of them.
James M. Garland, who was Holder’s deputy chief of staff from 2008 to 2010, said the long-standing rule is that criminal investigations are not shared outside the FBI or Justice Department — and are even kept from the civil side of the Justice Department.
“We want our law enforcement agencies to apply the laws dispassionately and without any political interference,” said Garland, a partner at Covington & Burling. “That is why there is this bright line prohibiting the sharing of criminal investigative information with the White House unless it is a threat to national security.”
Garland said the rules also protect the privacy and reputations of people who are under investigation. The prohibition covers disclosures to administration officials and members of Congress in order to avoid leaks that could compromise an ongoing investigation or give rise to accusations of political influence, according to former Justice Department lawyers.
The discovery that the director of the CIA was involved in an extramarital affair complicated the issue because the Justice Department’s rules collided with a potential threat to national security.
Although Holder said the investigation did not indicate there was a national security threat, officials have suggested that the possibility of Petraeus’s affair exposing him to blackmail forced the Justice Department to inform the executive branch.
“At that point,” said Matthew Miller, a former director of the Justice Department’s public affairs office, “it was a policy decision as to whether or not Petraeus was fit to remain in office.”