THE BLOG
01/12/2015 06:35 pm ET Updated Dec 06, 2017

Petraeus Must Be Prosecuted

Bill Clark via Getty Images

The New York Times disclosed over the weekend that federal prosecutors have recommended that the Justice Department bring charges against former general and CIA director David Petraeus. Unless President Barack Obama and Attorney General Eric Holder (or his successor) want to be seen as flaming hypocrites, Petraeus must now be prosecuted.

Another president might have had some leeway. If this revelation had been made two weeks after President Hillary Clinton or President Jeb Bush got sworn in, they'd have a range of options to plausibly consider, which would include refusing to prosecute. Obama, as a result of his own administration's actions, doesn't really have this option available to him.

What Petraeus is accused of is leaking classified documents to a journalist. That's a very specific crime, falling under the Espionage Act of 1917. Since that law's passage almost a century ago, a total of 11 people have been prosecuted for doing exactly the same thing that Petraeus is accused of. Of those 11, seven have been prosecuted by the Obama administration. In other words, in the first 92 years of the law, four people were charged, but since 2009 seven more have faced (and received, in some cases) jail time for leaking classified documents to journalists.

Many disagree with the priorities the Obama administration has set on this issue. Overzealously prosecuting leaks to reporters skates uncomfortably close to infringing on the freedom of the press. Some of the cases the Obama administration has pursued are well-known to most of the public: Chelsea (formerly Bradley) Manning's leaks of classified information to WikiLeaks, and Edward Snowden's leaks of NSA files to various journalists. Others are not so well-known. But the common thread through all of them is that the Obama administration is waging a sort of war on leakers that no other president has fought quite so strenuously. Whether you agree with Obama's prosecutorial discretion or not is beside the point; the record shows that Obama has championed the issue unlike any of his predecessors.

General Petraeus is innocent until proven guilty in a court of law, of course. He is accused of leaking classified documents to the journalist he was having an affair with (who was writing his biography); the documents were found on her computer. The affair itself destroyed Petraeus' career (although it is entirely possible he'll make a political comeback at some point). He says he wasn't the source of the documents, and that he is innocent of wrongdoing.

There are only two possibilities here. The first is that Petraeus is right and his mistress obtained the documents elsewhere. This is entirely plausible, since good journalists get source material from a number of people. She was researching Petraeus, so she could have gotten some info on him that he knew nothing about. The second possibility is that Petraeus is lying and trying to cover up his mistake. This is also entirely plausible, since he may have been helping her get material she could use in her book, thinking there was nothing wrong with doing so. This is why we have court cases: to determine the facts. One of these is true, and one is not. In one scenario a crime has been committed by Petraeus; in the other scenario that crime was committed by someone else and Petraeus has been falsely accused.

However, the only way we're going to determine the facts of the case is in a courtroom. And the Obama administration's history of vigorously prosecuting exactly the same crime demands that Petraeus be treated no differently by the Justice Department. The only other option really open to President Obama is to pardon Petraeus and avoid the court case altogether. Obama could do this whether Petraeus agreed to the plan or not; the pardon power of the president is absolute.

Without such a pardon, there is no believable reason for Obama's Justice Department not to prosecute Petraeus. Many politicians are right now calling for Petraeus to get some sort of pass due to his previous service to the country. This is nothing short of naked elitism: one law for politically powerful people, and one law for everyone else. Shamefully, even some politicians who have ardently supported going after the likes of Manning and Snowden are now calling for Petraeus to walk away scot-free from the exact same crime. Dianne Feinstein took the hypocrisy prize for saying she thought Petraeus had "suffered enough" while still calling for the book to be thrown at Edward Snowden. John McCain and Lindsey Graham took the prize in the unintended irony category, though, by issuing a letter that denounced the leak to The New York Times about the status of the Petraeus investigation. They spoke out in support of a leaker but condemned the leak of the status of his case? Hoo boy, that takes some major-league doublethink!

Personally, I think that the Obama administration has been downright draconian in its prosecution of leakers. I am no doubt biased, considering the work I do. Without Snowden's leaks, we as a country simply would not have had a conversation about the excesses of the NSA, and I consider that a valuable service to the country. I also support what John Kiriakou and Thomas Drake did, and all the others who didn't achieve the notoriety of Manning and Snowden. I don't have much of a problem with what Petraeus is accused of either, even if I assume that the info he may have leaked might have been somewhat self-serving, seeing as the journalist was writing a Petraeus bio at the time.

But given how the Obama administration has set its priorities -- whether I agree with them or not -- it would now be nothing short of flaming hypocrisy for them to overturn a recommendation from federal prosecutors to charge and try Petraeus. Politically, it would be a lot easier to give Petraeus a walk, since he is still a popular figure. Astonishingly, The Guardian reports that Petraeus still "retains his security clearance, which permits him access to classified and sensitive information." This despite clear Pentagon regulations stating that a security clearance should be at least suspended "when there exists information raising a serious question as to the individual's ability or intent to protect classified information." It is impossible to see how Petraeus doesn't now fall into that category, in fact.

Barack Obama's Justice Department has brought more than twice as many prosecutions for the crime of leaking confidential information to journalists as the combined total of all presidents back to Woodrow Wilson. Having set this record, there are now only two choices for President Obama and Eric Holder (or his successor): Either pardon Petraeus for any and all leaks or prosecute him to the full extent of the law, in exactly the same way as the other seven were treated. At this point, whether you agree with Obama's track record of such prosecutions, you'd have to admit that anything else would be indefensible hypocrisy and elitism.

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