Lessons from Petraeus’ guilty plea in Trump’s secret-document investigation
The FBI’s August 8 execution and seizure of a search warrant against the home of former President Donald Trump about a dozen boxes of government information is unprecedented. Important facts are still unknown to the public, namely from Asha Rangappa, Norm Eisen and Brad Moss explained It was not possible to determine exactly which federal criminal laws may apply to Trump’s retention of government documents. Even as the facts develop, it may help to recall an FBI raid that pulled classified government information from the home of another former senior official less than a decade ago — that of former CIA director and retired US Army General David Petraeus.
The Facts of the Petraeus Case
Corresponding court documentsPetraeus, whIn 2010 he became commander of the multinational military mission ISAF in Afghanistan–11, “neat bound five-by-eight inch notebooks containing his daily schedule and classified and unclassified notes.” Some of these “black books,” as prosecutors called them, “contained classified information on the identities of undercover officers, war strategies, intelligence capabilities and mechanisms, diplomatic discussions, citations, and deliberative discussions of high-level National Security Council meetings , and Defendant David Howell Petraeus’ conversations with the President of the United States of America.” In addition, “they contained national defense information, including top secret/SCI and codeword information.” A Department of Defense (DOD) historian had organized and submitted his materials to the DOD after Petraeus’ resignation from the DOD National Defense University, which houses the department’s classified documents. However, Petraeus “personally kept the Black Books”.
In August 2011, after finally returning from Afghanistan and a few months before being sworn in as CIA director, Petraeus emailed Paula Broadwell, with whom he was having an extramarital affair, promising her access to the books. He had previously informed her in a conversation she recorded that the books were “highly classified” and contained “code word” information. That same month, he delivered the books to her DC home, where he left them for a few days “to facilitate ‘Broadwell’ access to the Black Books and the information they contain for use as source material for his biography.” , titled Everything in it: The training of General David Petraeus.” He then kept the books at his home in Arlington, Virginia.
Petraeus had signed several non-disclosure and non-disclosure agreements during his time with the Department of Defense and the CIA. After his departure from the CIA in November 2012, when details of his affair came to light, Petraeus additionally signed a security exit form confirming that “there is no classified material currently in my possession, custody or control”. The Black Books were still in his house at the time.
In October 2012, FBI agents interviewed Petraeus and indicated they were doing so as part of a criminal investigation. Petraeus stated during the interview that he never provided classified information to Broadwell or facilitated her access to such information. The documents supporting Petraeus’ eventual plea deal noted that he “knew here and there that he had previously shared the Black Books” with Broadwell. Ultimately, Petraeus was not charged with making false statements to the FBI 18 USC § 1001(a)(2). This law criminalizes “knowingly and intentionally . . . mak[ing] any materially false, fictitious or fraudulent statement or representation” relating to “any matter falling within the jurisdiction of the executive, legislative or judicial branch” of the federal government.
In April 2013, the FBI confiscated the books based on a search warrant issued at his home.
indictment by the DOJ
Petraios reached an agreement with the Department of Justice to plead guilty to a case of unauthorized removal and retention of classified information in violation of a federal statute, 18 U.S.C. 1924which then provided the following in the relevant part:
(a) Any United States officer, employee, contractor, or consultant, by virtue of his office, employment, position, or contract, comes into possession of documents or materials containing United States classified information will knowingly remove such documents or materials without authority and with intent to keep such documents or materials in an unauthorized location shall be liable under this title to a fine or to imprisonment for a period not exceeding one year or both.
The DOJ alleged that Petraeus “as an employee of the United States and as a result of his employment came into possession of documents and materials containing classified information” and that he “unlawfully and knowingly removed those documents and materials from unauthorized locations because he was aware that locations were not authorized for storage and custody of these materials.
The charges carried a maximum sentence of one year in prison and a $100,000 fine. (The maximum statutory sentence was increased to five years in 2018.)
In the plea agreement, prosecutors and Petraios agreed to two years probation and a $40,000 fine. Certain Justice Department officials, and particularly FBI agents, were supposedly upset about the lenient terms of the plea. They feared that the case of Petraeus would set a precedent that would make it harder to receive prison sentences in future cases of government leaks.
The judge approved the probation period in Petraeus’s agreement, but increased the fine to $100,000. The court wrote adding to the recommended fine that the judgment should “reflect the seriousness of the offense” and “encourage respect for the law, provide a just punishment and an adequate deterrent”. It found that given various conviction factors and the defendant’s ability to pay, the fine along with other sanctions “should be punitive”.