Will Petraeus Get the Snowden Treatment?

The evils of the Espionage Act


Trevor Timm writes:

Remember this?

In a surprising development, the New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act….

Petraeus' powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus's leak caused no damage to US national security. "So why is he being charged," his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can't argue otherwise as a defense at trial. If that sounds like it can't be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn't matter what Petraeus's motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn't matter that Petraeus is not an actual spy. It also doesn't matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It's still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: "lower-ranking officials had been prosecuted for far less."

One fierce advocate of prosecuting whistleblowers—Sen. Dianne Feinstein—is already calling for mercy in the Patraeus case. I suspect you're not shocked to hear it.

For more on the Leak Scare, go here.

NEXT: Oil Prices Never Again Above $100 Per Barrel?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Remember that Sandy Berger was never prosecuted for stuffing classified documents in his pants and smuggling them out of the national archives. The fact that someone at the White House obtained and leaked private tax information about Mitt Romney, a felony, hasn’t even been investigated much less prosecuted. And lets not forget the people who served as “technical advisers in classified information” for the making of Zero Dark Thirty have never been identified much less prosecuted.

    Yet, now they are going to prosecute Petreus for pillow talk with his mistress? Really? These people are scum. This is nothing but gangster government.

    1. Who the person is (their political persuasion being the most important factor) matters more than what the person did. Principals trump principles.

    2. Berger even got his security clearance back even though we never did find out what he stole from the National Archives.

      1. I thought it was stuff that was related to Clinton’s Nat Security reviews about Bin Laden/terrorist threats, etc. Things they didn’t want the 9/11 commission to include in their report.

    3. Broadwell wasn’t just his mistress. She was also an Army officer. It’s still a violation but it’s not like she was some civilian writing for Newsweek. Other than getting her security clearance and LTC promotion yanked, nothing appears to be done about her. Broadwell hasn’t been charged.

      1. And at the time of the supposed leak, she did have a security clearance.

  2. I’m torn between a hatred for the idiotic law he might be prosecuted under and laughing at it being applied to him.

    Either way, there’s going to be a long, drawn out trial/appeal, followed by a pardon or commutation on January 19, 2017.

    1. If it were being applied to him out of anything but nasty political purposes, I would be with you. But it isn’t. It is not like Obama will ever apply it to anyone in power on his good side.

      1. Is Petraeus really Obama’s political enemy? If so, why did he appoint him as CIA director?

        1. Michael… you keep your friends close… but your enemies *closer*

          1. It appears to me that everyone BO has appointed as CIA director could be put into this camp.

        2. IIRC Patreus opposed one iteration of Obama’s Syria policy – if you could call a flailing contradictory mess of positions, promises, threats, retractions, and Zap Brannigan style chest thumping a policy.

  3. lower-ranking officials had been prosecuted for far less.

    Then maybe we need to review the legitimacy of their prosecutions. What we seem to be seeing here looks remarkably like a political prosecution. While some people may have been prosecuted for less, people who have done worse have been allowed to go about their business undisturbed.

  4. The whole point of rising to positions of power is not to suffer the consequences of what you do while you’re there.

    1. Hear Hear!

      (goes back to kissing ass)

    2. I know.
      He’s a member of the Inner Party!

  5. Rock me Col. Patraeus. (There I said it)

  6. Is this an effort to pin Benghazi on Petraeus instead of Hillary?

    The mistress let slip about the CIA operation there before the place was even attacked – maybe her leak could be cited as the cause…

    1. It would remind everyone that the Administration (including Hillary) blamed a goofy YouTube video.

    2. It would make it obvious that there was an operation going on. State was in on it and blew the security. The op was running guns to Syrian rebels (ISIS) and maybe interrogating prisoners and/or exchanging them for weapons.

    3. Might open up more worms about the incompetence and stupidity coming out of the White House and State during that whole episode.

    1. “Drake|1.12.15 @ 12:43PM|#

      Is this an effort to pin Benghazi on Petraeus instead of Hillary?”

      I wouldn’t phrase it that way, but = yes, more or less.

      The entire case of his “investigation” and subsequent outster were politically motivated.

      The fact that they’ve held this investigation over his head for the last 2 years is politically motivated.

      The fact that they are going forward (apparently) with an actual prosecution is politically motivated.

      Whether its all ‘payback’ to completely discredit and punish him for his ‘problematic’ attitudes re: benghazi, and to ensure he kept his mouth shut *forever* about it….

      …or whether its more of a long term politically motivated call, to destroy the guy to prevent him ever becoming a political figure down the road…

      …i think doesn’t matter which. The whole thing from the very start was a fishing expedition to find some dirt that could be used when needed.

      I suspect now, the issue is Hillary. They just don’t think he’ll play nice while she’s running for president. Or maybe he’s even *said so*. They know he’s got the goods. so, hardball it is then.

      And the media will fucking ignore it.

      1. *footnote =

        I don’t think its “all about Benghazi”, re: Petraeus

        I think they considered him a political threat well before that, and were specifically using him as a ‘fall guy’ for whenever the situation became necessary. He was placed in charge of CIA specifically because they expected that sooner or later there’d be “bad news” and they wanted as much of it as possible to end up in his lap.

        Because anyone with 2 brain cells in the Obama admin was thinking “what would happen if this guy ran for president in 2016”

        Benghazi is just a detail that occurred midway in that process that crystallized the issue. He flat out refused to doctor their talking points. Morrell stepped up. he was a dead man walking at that point. The Broadwell inquiry had already produced the info they needed. The “accuser” who initiated the entire investigation into Petraeus/Broadwell over spring 2012 visited the white house repeatedly leading up to the eventual November accusations and resignation. Shocker.


        1. I bet they knew he had a side-piece before he was even nominated.

          1. The fact that the FBI devoted significant resources to tracking down the digital trail originating from “some socialite complaining about nasty emails”…and apparently were regularly updating Robert Mueller and Eric Holder about the case….

            …when there was no evidence of any crime committed in the first place?

            “raises questions” about what motivated the process in the first place.

  7. I’m so jaded I was at the “i just don’t give a fuck” the instant I heard this.

    Basically what Andrew S. said above – I’m torn between my hatred of all of it.

    A pox on them all, and may they suffer horrible deaths only to have an eternity in hell in the afterlife.

  8. To repeat an earlier joke:

    Samuel Johnson wishes he had broadwell as a biographer instead of Boswell.

  9. my roomate’s half-sister makes $69 hourly on the laptop . She has been without a job for 10 months but last month her check was $15722 just working on the laptop for a few hours. why not look here………..

  10. “lower-ranking officials had been prosecuted for far less.”

    Really? What about Lois Lerner for the IRS targeting of the teach party groups? What about Holder for Fast and Furious?

    And isn’t it just a little ironic that Petraeus is being charged for leaking and we learn about this last Friday evening from a bunch of leakers from Justice?

    This is bullshit.

    1. And the tea party groups, too!

  11. OT, but funny =

    “Strategic Capability to Out-Derp Adversaries in Doubt”

  12. I saw an article the other day in which Barbara Boxer was saying he should be let off. “He’s suffered enough.”


  13. Whoops.

    One fierce advocate of prosecuting whistleblowers?Sen. Dianne Feinstein?is already calling for mercy in the Patraeus case.

    Maybe it was Feinstein. One of those senile old haggises.

    1. “Sen. Dianne Feinstein?is already calling for mercy in the Patraeus case.”


    2. Glenn Greenwald excoriates Dianne Feinstein for her sudden discovery of ‘mercy’ after showing none to Assange, Snowden, et al

      “It is, of course, inconceivable that someone like Dianne Feinstein would urge the release of ordinary convicts from prison on the ground that their actions are “in the past” or that they have “suffered enough.” This generous mentality of mercy, forgiveness and understanding – like Obama’s decree that we Look Forward, Not Backward to justify immunity for American torturers – is reserved only for political officials, Generals, telecoms, banks and oligarchs who reside above and beyond the rule of law.”

      I guess his idea of moral-consistency is that ‘if you’re going to be statist control-freaks, be consistent‘ Never mind that Snowden, Assange did in fact ‘intentionally leak damaging national security details to the press’; I think what they did was GOOD – however, they knowingly went out of their way to disclose classified information to the wider world, and knew what they were doing was criminal.

      Petraeus is being prosecuted for ‘file sharing’ with his girlfriend, which was only discovered through an FBI investigation which was ginned up by some lady saying she’d recieved ‘nasty emails’. How that turned into “the FBI spying on the CIA director” is casually overlooked.

  14. “ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. ”

    Of course. Fox News is the ENEMY. Kim was lucky he wasn’t executed for treason.

    “lower-ranking officials had been prosecuted for far less.”

    Any lower ranking officials who are clear friends of the White House, who leaked to benefit the White House? No? How strange.

    Obama makes Tricky Dick look like a pious constitutionalist. He’s got the guns, and he uses them on his enemies. That’s the way the Progressive Theocracy rolls.

Please to post comments

Comments are closed.