Petraeus’s Legal Problems Could Have Been Much Worse

If everything goes as scheduled, one of America’s best-known and most-decorated generals, not to mention former CIA Director, David H. Petraeus, will experience the next phase of his humiliation stemming from the revelations related to his extramarital affair with Paula Broadwell. On March 19, 2015, Petraeus will plead guilty to a misdemeanor charge of unauthorized removal and retention of classified material under the federal criminal code, 18 USC 1924. Sentencing, which has not been set, will follow at a later date, and as part of the deal the Government will recommend a $40,000 fine and two years of probation.

This will happen in the U.S. District Court for the Western District of North Carolina. This story began in Charlotte in May 2012, when the FBI launched a very different investigation, which effectively has ruined Petraeus. As the U.S. Attorney’s office for the Western District of North Carolina made clear in the plea agreement, it could have been significantly worse for the general, who has confessed to facts involving several felonies that could have resulted in years in jail and a much larger fine.

Before looking at how bad it might have been, a brief summary of the situation follows for those who do not recall how all this happened. New details are available and set forth in the plea agreement.

Petraeus’s Biographer

It is ironic that Paula Broadwell, who wrote a biography of the general, has inserted herself into the ongoing final chapter of his career and his fall from grace. Petraeus met Broadwell in 2006 at the Harvard’s Kennedy School of Government, where she was a graduate student and he was giving a speech. Broadwell, a West Point graduate like Petraeus, and then a major in the US Army Reserve, reportedly told the general about her graduate studies in leadership. Following his talk, the general gave her his card and offered to assist her.

David Petraeus, who was born November 7, 1952, married Holly Knowlton in 1974, two months after graduating from West Point. Paula Broadwell (née Kranz) was born almost twenty years later on November 9, 1972, and married Dr. Scott Broadwell in 2000, when they both were Army Captains stationed in Germany. Her husband, just four years out of medical school, was running an Army clinic in Mannheim.

Following their meeting at Harvard, the general was good to his word when Paula requested his assistance, and they soon became friends, often meeting when the general took his daily jog. Petraeus, a longtime runner, was impressed that Broadwell could give him a run for his money during their jogging visits. It is not clear which occurred first: their intimate relationship or Broadwell’s pitching the general on her bid to write his biography. Either way, he agreed and fully cooperated in the biography project, which was in the development stage when President Obama placed Petraeus in charge of the American and NATO efforts in Afghanistan on June 23, 2010.

After getting the Afghanistan undertaking shaped up, President Obama nominated Petraeus to head the CIA on April 28, 2011. On June 30, 2011, the U.S. Senate confirmed him, 94-0. On July 18, 2011, he relinquished command of the forces in Afghanistan and was heading for retirement from the Army when he spoke with Broadwell on August 4, 2011, a time by which it seems they were already deep into the biography project. It is not known if Petraeus knew Broadwell was recording their conversations, but she did so on that day when she asked him about his “Black Books,” reminding him they had not gone through them. She was pressing him to see them, and he was stalling. He reminded her, “I mean they are highly classified, some of them. They don’t have it on it, but I mean there’s ‘code word’ stuff in there.” By email, on August 27, 2011, Petraeus assured his biographer he would give her access to the Black Books, and delivered them the next day to a private residence in Washington, DC to use them in the biography. (No classified information from the Black Books appeared in the biography, however, when it was published on January 24, 2012 under the title All In: The Education of General David Petraeus.)

Giving Broadwell the Black Books, even for only four days, proved a fatal mistake. While she had security clearance, it did not extend to the information in the general’s notebooks.

The Black Books

According to court papers, during his tenure as commander of American and NATO forces in Afghanistan, Petraeus “maintained bound, five-by-eight-inch notebooks that contained his daily schedule and classified and unclassified notes he took during meetings, conferences, and briefings. The notebooks had black covers and, for identification purposes, [Petraeus] taped his business card on the front exterior of each notebook. A total of eight such books (hereinafter “Black Books)…” were created by the general during his command in Afghanistan.

The Black Books contained highly classified information, ranging from “confidential” to “secret” to “top secret” and “code word.” Each level of classification represents more sensitive national security information. Notwithstanding the fact that the news media often calls “code word” a higher classification than “top secret,” in fact it is not, since “code word” can relate to either secret or top secret information. What “code word” means when discussing national security classification is that the information has been compartmentalized.

More specifically, as spelled out in the plea agreement: “Within the U.S. Intelligence Community, the Director of National Intelligence is authorized to establish special access programs for intelligence sources, methods, and activities. Such intelligence programs are called ‘Sensitive Compartmented Information Programs’ or SCI Programs. A term commonly used to describe certain materials in such a program is ‘code word.’” This term is used because a code word, e.g., BYEWAY, is prominently included with the classification. Code word information is typically limited to “need-to-know” only persons who have the proper clearance.

According to the plea agreement, the Black Books “contained classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and [Petraeus’s] discussions with the President of the United States.”

The Unravelling

Paula Broadwell inadvertently provoked the FBI investigation that revealed she had received the highly classified Black Books. In May 2012, after the publication of Broadwell’s Petraeus biography, which was co-written with journalist Vernon Loeb, Jill Kelley, a would-be socialite from Tampa and another lady friend of Petraeus, approached a friend in the FBI in Tampa to complain that she was receiving disturbing emails, threatening and harassing her, from someone called “kelleypatrol.”

The FBI soon identified the source of the “kelleypatrol” emails as Paula Broadwell, who was living in Charlotte, North Carolina, and apparently suspected that Jill Kelley was poaching on her man and starting an affair with David Petraeus. When the Charlotte FBI agents confronted Broadwell, she admitted to her affair with Petraeus, the director of the CIA at the time. After Broadwell turned over her computer to the FBI, they found it was loaded with classified documents. The Charlotte FBI office had discovered just about as explosive a case as possible, consequently proceeding carefully and by the book.

Media attention on Jill Kelley, who was a social liaison to several military bases, was less than flattering. It was learned that she had arranged for both General Petraeus and General Allen to put in a good word for her sister, who was involved in a custody dispute in Washington, DC, where a judge found Jill’s sister had “misrepresented virtually everything,” notwithstanding the claim by Petraeus and Allen that she was “an honorable, loving and reliable mother.” Jill’s sister lost. Questions were also being raised about the foundation Jill and her husband operated.

Concerned that the investigation into her cyber stalker had stalled, she complained to the FBI agent to whom she had first raised the problem. But the investigation had been proceeding, and the FBI agent only created problems for himself by calling members of Congress to suggest a cover-up might be going on.

Petraeus’s Crimes

On June 12, 2012, the FBI conducted two separate interviews with Petraeus at his Langley, Virginia office at the CIA. The plea agreement describes them as “unrelated to the instant offense,” rather being “in connection with two media leak investigations.” The Government mentions this interview to make the point that on June 12, 2012 Petraeus “acknowledged that he understood that making false statements to the FBI in the course of a criminal investigation was a crime.”

On October 26, 2012, FBI agents were back in Petraeus’s Langley office, and he was advised they were now conducting a criminal investigation regarding his mishandling of classified information. The Government reports that when responding to the FBI questions, Petraeus “stated that (a) he had never provided any classified information to his biographer, and (b) he had never facilitated provision of classified information to his biographer. These statements were false.”

By early November, Petraeus’s affair with Broadwell was known to his superiors, James Clapper, the Director of National Intelligence, and the Obama White House. At Clapper’s request, Petraeus tendered his resignation to the president on his birthday, November 7, and his resignation was accepted by the president on Broadwell’s birthday, November 9, 2012 – and the scandal then erupted publicly.

It is clear that the resolution of this case has been in the works for many months. Petraeus is well represented by the law firm of Williams & Connolly, more specifically David Kendall, who may be recalled for representing Bill Clinton in his dealings with special prosecutor Kenneth Starr, and Simon Latcovich, a young associate at the firm. (Interestingly, Simon’s wife Meghan works for the McCain Institute, and is a 1999 graduate of the US Naval Academy – like Sen. John McCain – and served as Cindy McCain’s senior advisor during the 2008 presidential campaign. John McCain is one of David Petraeus’s Washington-based champions.)

It is clear from the plea agreement’s factual statement that Petraeus might have been indicted for an array of felonies, but given the limited available facts, only a broad estimation is possible.

The plea agreement makes clear that they had a very strong case under the federal false statements law, 18 USC 1001. This is a felony with up to five years in prison and a fine. False statements during an investigation frequently lead to obstruction of justice charges, and given the fact that the plea agreement notes that obstruction of justice must be included in calculating the sentence for Petraeus, under the US Sentencing Guidelines, this indicates the Government believes he obstructed justice, most likely under 18 USC 1505. The obstruction statute also can result in five years in prison. Because Paula Broadwell cooperated with the Government, her role is unclear, but the federal conspiracy statute, 18 USC 371, is very broad and the brief recorded conversation, as well as the relationship between Petraeus and Broadwell, certainly suggests conspiracy.

The usual statute the government relies on to prosecute those who leak or mishandle classified information is 18 USC 793, an espionage statute adopted in 1917, whose broad language has been used as something of an American official secrets act. The Obama Justice Department has used it on seven occasions to prosecute and imprison former government officials who have leaked, or misused, classified information. This statute has a ten-year prison term, and based on recent prosecutions under this law, the facts set forth in the Petraeus situation appear to fit.

In short, Petraeus got a very good deal. His deal is raising fundamental questions about how the government has treated others. For example, the L.A. Times has noted, “[t]he whiff of a double standard is overwhelming. If anything, a leader at Petraeus’ level should be held to a higher standard than lower-level officials or contractors.” U.S. News & World Report is reporting that Edward Snowden, who leaked a trove of classified NSA information, would return to the United States from Russia for a deal like Petraeus received. Snowden should wait, however, to see what the sentencing judge does with this plea deal, assuming that the magistrate judge accepts it on March 19, 2015 (and he is expected to, for magistrate judges seldom make waves).