James Joyner and Butch Bracknell
War on The Rocks
October 27, 2016
In the third and, thankfully, final presidential debate of the 2016 cycle, Republican nominee Donald Trump doubled down on his contention that his Democratic opponent, Hillary Clinton, “should never have been allowed to run for the presidency based on what she did with e-mails and so many other things.” He had some new ammunition: a former Vice Chairman of the Joint Chiefs of Staff, retired Marine General James “Hoss” Cartwright, had just been criminally charged in relation to leaking classified information. While there are surface similarities, however, the cases are quite different.
Trump charged,
We have a great general, four-star general, today you read it in all the papers going to potentially serve five years in jail for lying to the FBI, one lie. She’s lied hundreds of times to the people, to Congress, and to the FBI. He’s going to probably go to jail. This is a four-star general, and she gets away with it and she can run for the presidency of the United States?
Josh Rogin of The Washington Post took a similar position in an article headlined “General Cartwright is paying the price for Hillary Clinton’s sins.” He contends, “The FBI’s handling of the case stands in stark contrast to its treatment of Hillary Clinton and retired General David Petraeus — and it reeks of political considerations.”
He cites Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, who argues, “There is a lack of proportion just based on the facts that one figure, Cartwright, is getting severely punished and others so far have escaped the process,” adding, “He is being singled out for prosecution and public humiliation. It’s an implicit rebuttal to those who argued that other senior officials such as Clinton or Petraeus got off scott free or got too light of a sentence.”
Cartwright’s sentencing reportedly will not take place until January 17, making a full comparison difficult. Still, the cases are sufficiently different to make Trump and Aftergood wrong on the merits.
Trump’s comparison between Clinton and Cartwright is the easiest to dismiss. While the FBI found that Clinton had repeatedly been “extremely careless” in her handling of “very sensitive, highly classified information,” there was no evidence — indeed, never even the suggestion — that she intentionally shared classified information with any individual not authorized to receive it. Her recklessness could well have compromised national secrets. Given the ubiquity of hacking, it might well have. But there is no evidence to support a criminal prosecution, as explained in depth by FBI Director James Comey and others. (Now, conduct that doesn’t clear the bar for criminal charging may be deemed by voters to be disqualifying for President of the United States. But Clinton is running against Trump, not Cartwright.)
More importantly, despite Trump’s assertions to the contrary, there is no evidence nor, again, was there any credible assertion, that Clinton lied to the FBI in their investigation of the matter. That, after all, is what Cartwright was ultimately charged with.
As Lawfare’s Ben Wittes noted on a recent episode of the Rational Security podcast, lying to federal investigators is the surest way to get charged with a crime: “There is nothing in this world — not child porn, not terrorism, nothing — that the FBI is likely to insist you be indicted for than lying to the FBI.” He argues this is not merely self-serving: “They can’t do their job if people don’t engage in investigations in a responsible or reasonable fashion.”
Beyond that, it seems obvious that charging someone for false statements to investigators is a convenient way to extract some punishment while avoiding the proof problems that may accompany the underlying conduct. By merely charging false statements to investigators, prosecutors simplify their case and avoid the need to declassify underlying evidence or to hold the court in a closed, secure session.
Indeed, Wittes argues, in the context of the handling of classified information, those questioned by the FBI would be best advised to be as forthcoming as possible. Not only will those suspected of dishonesty be ruthlessly pursued “for years” if necessary, but people are essentially never charged merely for the mishandling of information. When FBI Director Jim Comey explained that “no reasonable prosecutor” would have brought charges against Clinton, he noted:
All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.
He declared, “We do not see those things here.”
The better comparison, then, is Gen. David Petraeus, whose mishandling of classified information was compounded by lying to investigators. While the Justice Department worked very hard to build a felony case against him, he was ultimately allowed to plead guilty to misdemeanor charges and pay a fine.
His case centered around handing over his personal journals, which contained extensive classified information, over to his mistress Paula Broadwell to aid in writing her hagiography of him. Included in these books were “code words for secret intelligence programs, the identities of covert officers, and information about war strategy and deliberative discussions with the National Security Council.” The Department of Justice contended that the information, if disclosed, could have caused “exceptionally grave damage” to the national security.
The disclosure was somewhat mitigated by the fact that Broadwell, while having no official “need to know” and thus ineligible to receive the materials in question (“lack of access”), was an Army Reserve military intelligence officer with a security clearance, and thus highly trained to use discretion in the handling of classified materials. Additionally, Petraeus retained and used the right to vet the content of the book in detail before it was published. In the end, no classified material was used in the published book, and there is no evidence of foreign disclosure of the research materials.
As then-Attorney General Eric Holder observed, “There were some unique things that existed in that case that would have made the prosecution at the felony level and a conviction at the felony level very, very, very problematic.” Among these was a view by some in the Department of Justice that Broadwell was, technically speaking, a journalist and therefore essentially immune from prosecution under the Espionage Act for her own part in the crime.
Cartwright, meanwhile, talked to journalists about one of the government’s most closely guarded and highly compartmentalized secrets, the “Olympic Games” attack on the Iranian nuclear program using the Stuxnet virus. While Cartwright’s role in the leaks was murky, he noted he was not the original, primary leaker and was merely confirming information the journalists already had, and implied he was acting at the behest of the White House. But then why lie to investigators?
Again, we won’t be able to truly compare the treatment of the two generals until Cartwright’s sentencing. Among the factors — and likely the main factor — in Petraeus’ deal was his status as a public hero. It would have been very awkward politically to strip someone of his stature of his pension and prestige over an incident that most members of the public would find minor. We presume that Cartwright’s presentencing report will similarly speak in glowing terms about his four decades of exemplary service and would be surprised if he serves any jail time. His major penalty will be largely collateral to the offense — a minor loss of his Washington credibility and security clearance, at least for a few years, and an inability to work on classified matters for industry or think tanks, as retired generals often do. Unless a retroactive retirement grade review is ordered (unlikely in light of the Petraeus precedent), Cartwright’s pension will remain intact, and his professional prospects will either recover soon enough or not be appreciably damaged.
The more scandalous comparison, arguably, isn’t between Clinton, Cartwright, and Petraeus but between very senior officials like them and the mere rank and file. As The Daily Beast’s Shane Harris points out, “The Obama administration has prosecuted more cases against government and military personnel for leaking than all other administrations combined.”
The most obvious are the very-high-profile cases of Chelsea (formerly Bradley) Manning and Edward Snowden. They are sufficiently complex, unique, and politically charged that we’ll leave them aside for this discussion. The cases of intelligence community civil servant Thomas Drake and Marine Reserve Major Jason Brezler spring to mind as more typical cases.
Faced with misgivings about intelligence community spending and overreach into citizen privacy, Drake made a series of reports to various oversight entities, including the Department of Defense Inspector General. In alleged retribution for Drake’s later disclosures to The Baltimore Sun, the Justice Department brought a case against him which later fell apart into yet another misdemeanor plea deal — but not before Drake’s successful career and reputation were ruined.
Military servicemembers facing similar discipline and loss of a security clearance can, and often are, separated from service by virtue of their inability to perform their primary duties without access to classified information. Brezler has been the subject of administrative separation proceedings seeking to throw him out of the service over relatively minor and self-reported classified information disclosures and retentions. Brezler sent classified information over unclassified networks for the purpose of alerting colleagues in Afghanistan of an imminent danger posed by an Afghan security force member. After self-reporting, an investigation revealed Brezler unlawfully retained other classified information, possibly as research information to write a memoir. Unable to prosecute him by court-martial, the Marine Corps sought to fire him, which would spell the end of his service, the loss of any eventual pension, and loss of his security clearance for years.
For Drake and Brezler, once accused of improper handling and retention of classified materials, the hammer of justice has been somewhat severe.
The disparity between the treatment of senior leadership and those for whom they are supposed to set the example is uncomfortable. Partly, it’s a function of political connections; generals and cabinet officers are more likely than privates and ordinary bureaucrats to have friends in high places. Partly, it’s the fact that those who have risen to high rank typically have several decades of “wasta” to balance against poor decisions. This apparent say-do gap, while unfortunate, is probably inevitable.
Regardless, Clinton is getting no special treatment by the standards of her high-powered peers. Like Petraeus and Cartwright, she failed to safeguard the nation’s secrets to the appropriate standard. None of the three were charged for these failures. Unlike them, she did not get caught lying to the Justice Department. Thus, once again, the old Washington truism has borne out: It’s not the crime, it’s the cover-up.