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Why the Clinton email scandal and Petraeus leak are not really alike

Gen. David Petraeus and Paula Broadwell, co-author of his biography and former mistress (AP Photo/ISAF)
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This fact check has been updated to reflect a new rating of Three Pinocchios. 

“I think maybe she will [be indicted], but I think if she isn’t indicted, the only reason is because the Democrats are protecting her. She is being protected 100 percent. Because you look at General Petraeus, you look at all the other people that did a fraction of what she did. … But she has much worse judgment than he had, and she’s getting away with it. It’s unfair to him.”

–Donald Trump, MSNBC forum, Feb. 17, 2016

“That is a very, very serious allegation. And I would note, Gen. Petraeus was criminally prosecuted. Right now, the Obama Pentagon is trying to strip him of one of his stars for doing what appears on the face to be much, much less than Hillary Clinton did.”

–Ted Cruz, Fox News, Jan. 20, 2016 

There are too many examples to count of this popular talking point among conservatives, comparing the Hillary Clinton case to that of Gen. David Petraeus, the former CIA director who pleaded guilty last year to mishandling classified information he gave to Paula Broadwell, his mistress and biographer.

Clinton’s private email saga has dragged on since March 2015, with new information incrementally released. The FBI’s investigation is under way. Republican presidential nominees, members of Congress and pundits have speculated that Clinton would soon be charged because her actions were far worse than Petraeus’s.

We’ll leave it up to readers to decide whether one case is “worse” than the other — an opinion that can’t be fact-checked. Neither Clinton nor any of her aides have been charged with a crime. We also won’t consider whether her indictment is politically viable. But we will review what we know of the two cases from a factual and legal standpoint, to see if there is a logical comparison that can be made between the two.

The Facts

Petraeus case

Petraeus, a respected four-star general who many believed would run for president one day, resigned as CIA director in 2012 amid a criminal investigation. He faced potential felony charges and imprisonment, after the FBI discovered he had provided classified information to Broadwell, and lied to the FBI about it, enraging agents.

In his first public testimony since resigning as CIA director, former Army Gen. David Petraeus offered an apology for his affair. (Video: AP)

In his plea agreement, Petraeus admitted to mishandling classified information that was contained in personal notebooks. Petraeus told Broadwell that his notebooks contained “highly classified” information, yet gave them to her. The information didn’t appear in the biography.

Petraeus lied to the FBI during the investigation — a felony that’s punishable by up to five years in prison. He told agents that he never provided or facilitated the provision of classified information to his biographer.

The FBI wanted to charge him with lying to the FBI and violating a section of the Espionage Act, both of which carried years in prison. The Justice Department has never discussed exactly why it decided to accept a plea on a lesser charge, and we may never know why he wasn’t charged with lying to the FBI. His lawyers say he didn’t commit those crimes, and that Petraeus’s statements to the FBI weren’t material to, and didn’t impede, the investigation. (More on the story behind the plea agreement here.)

Petraeus’s actions, including lying to the FBI, “were in all respects knowing and deliberate, and were not committed by mistake, accident or another innocent reason,” according to the statement of facts accompanying the plea agreement. (Update: Broadwell had bad-mouthed socialite Jill Kelley in anonymous e-mails to military officials, which prompted the FBI’s investigation. Kelley has now released a book explaining her side of the story and detailing some of those emails, including allegations that Kelley and Petraeus had engaged in inappropriate and intimate behavior. Kelley denies those allegations.)

Petraeus pleaded guilty to one misdemeanor charge of mishandling classified information. He was sentenced to probation and fined $100,000. On Jan. 29, the Defense Department announced that it would not punish him any further, so he could keep his four-star rank.

Classified or unclassified information

Petreaus’s guilty charge was under Section 1924 of Title 18 of the United States Code. This section prohibits a government officer or employee who possesses documents or materials containing classified information, who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.”

It’s possible that prosecutors will try to bring the same charge against Clinton or her aides. But the question is: Did they knowingly send classified information?

This is a key difference between the two cases. In the Petraeus case, there was no question as to whether the information he provided Broadwell was classified. Further, a recording of Petraeus’s interview with Broadwell showed he knowingly provided classified information. (Anne M. Tompkins, a prosecutor in the Petraeus case and Clinton donor, has written about the differences between the Clinton and Petraeus cases.)

In the Clinton case, it’s less clear-cut. There is dispute over whether some of the information sent through Clinton’s private email server was classified when it was designed to handle unclassified communications. (We’ve written about this before.) The FBI is examining every email to determine the origin of information.

A federal judge in a public records case against the State Department over Clinton emails has ruled that State Department officials and top Clinton aides should be deposed about whether they knowingly thwarted federal open records laws through Clinton’s private email arrangement.

The emails were not marked “classified” at the time they were sent. But officials found “top secret” information in her emails because of a process called “retroactive classification.” That means if there is a Freedom of Information Act (FOIA) request for information sent on an unclassified system, the State Department can retroactively deem it classified instead of making it public. (More on this here.)

Clinton signed a Classified Information Nondisclosure Agreement, in which she pledged to safeguard classified information whether marked or unmarked classified. But interestingly, Clinton also had authority under an executive order to classify or declassify information at the “top secret” level. (Petraeus had the same classification authority as CIA director.)

(Note: Some readers have asked about an email in which Clinton asked to have classified markings removed regarding some talking points, and have it emailed unsecured. In theory, under the executive order, she had the authority to declassify the material, since it originated in the State Department. However, a congressional official said the indications are the material ultimately was transmitted appropriately.)

This very debate over classification is what prosecutors want figured out before any charges are pursued, according to several national security and criminal defense legal experts.

Former prosecutors involved in cases of mishandling classified information explained just how difficult it is to bring the charge when the information is not “classified at birth,” meaning the document was marked classified when it was created.

In one case, the mishandling charge could not be brought against a known spy leaking information to the Chinese government, because the information was not classified at birth (and was later classified): “Even if the nature was such that it clearly should have been, but wasn’t classified as such, we said, ‘We’re sorry, that’s not going to hold up in court,’” one former prosecutor said.

How does Clinton’s case compare?

The short answer: This is an apples-to-oranges comparison at best. Plus, we don’t have all the underlying facts of Clinton’s case. Clinton also was emailing with aides whom she didn’t believe would reveal the information. She never provided it to a journalist, as Petraeus did with Broadwell.

There are some similarities, notably in the key players: One of the prosecutors helping oversee the investigation into the Clinton email case is Richard Scott, who was involved in the prosecution of Petraeus. Clinton’s longtime defense attorney David Kendall also represented Petraeus.

But there are differences that make the two cases incomparable. The dispute over the classification in Clinton’s emails is a major difference. Moreover, FBI officials were furious at Petreaus for allegedly lying to FBI agents and wanted to bring a felony charge with potential imprisonment. Clinton, on the other hand, has not been interviewed by the FBI, as of Jan. 17, 2016, when she last addressed the question.

“Petraeus disclosed classified information to an unauthorized person. Clinton did not. Petraeus lied to the FBI. Clinton did not. Petraeus was charged with a crime and pleaded guilty. Clinton has not been charged with a criminal offense,” said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists.

Tom Fitton, president of Judicial Watch, which filed a FOIA lawsuit against the State Department over Clinton emails, said the difference is that Petraeus had a “personal indiscretion that had a distinct timeframe,” whereas in Clinton’s case, “all of her business was on the equivalent of an Internet park bench.”

Some experts have said one charge that prosecutors may consider is under the gross negligence statute, Section 793(f) of Title 18 USC: “Whoever, being entrusted with or having lawful possession of … information relating to the national defense … through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed …” shall be fined.

But gross negligence can be difficult to prove, where a jury is presented with a clear-cut story of a beginning, middle and end — which is not currently evident in the Clinton scandal, said a former federal prosecutor.

Clinton’s case may be more comparable to that of another former CIA director, John Deutch, who resigned in 1996 after he was found to have stored classified information on his home computer that he and his family members used to connect to the Internet. Deutch had government-issued computers intended for unclassified materials, took the computers home and processed information classified at top secret levels using hard drives and memory cards.

Deutch apologized for his conduct and negotiated a plea deal for a misdemeanor charge, but was pardoned by President Bill Clinton on the last day of his presidency.

The Pinocchio Test

Whether the Clinton cases is “worse” than the Petraeus case is a matter of opinion, and one we can’t fact-check. But we took a look at the factual circumstances underlying both cases. It’s easy to say that they are alike, because they both involve how a high-level government official handled information that was, or potentially was, classified. One can also argue it’s a question of judgment or transparency.

But there clearly are fundamental differences between the two cases that make it an illogical comparison, based on what we know of the Clinton case so far. At the most basic level, there is dispute over whether Clinton’s emails contained “classified” information. An array of experts we consulted all told us that as long as the dispute exists, it will be difficult to bring the same charge of mishandling classified information to which Petraeus pleaded guilty.

We can’t predict what will happen in the Clinton case – and neither can politicians or pundits. But this broad-brushed comparison lacks context, and overlooks the factual and legal differences between the two.

[Update: In a July 7, 2016, House Committee on Oversight and Government Reform hearing, Ranking Member Rep. Elijah Cummings (D-Md.) asked FBI Director James Comey whether he agreed with the claim that Petraeus “got in trouble for far less” than Clinton.

“No, it’s the reverse,” Comey said.

The Petraeus “illustrates perfectly the kind of cases the Department of Justice is willing to prosecute,” he said: A combination of obstruction of justice, intentional misconduct and a vast quantity of classified information. Petraeus admitted he knew that was the wrong thing to do, Comey said.

In light of Comey’s statement challenging the comparison of the Petraeus and Clinton cases, we updated the original Two Pinocchio rating to Three Pinocchios.]

Three Pinocchios

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