Former attorney general Michael Mukasey recently
compared the inquiry into Hillary Clinton’s use of a private email server when she was secretary of State with former CIA director David Petraeus’ federal conviction for the unauthorized removal and retention of classified information.
As the former U.S. attorney for the Western District of North Carolina, I oversaw the prosecution of Gen. Petraeus, and I can say, based on the known facts, this comparison has no merit. The key element that distinguishes Secretary Clinton’s email retention practices from Petraeus’ sharing of classified information is that Petraeus
knowingly engaged in unlawful conduct, and that was the basis of his criminal liability.
The facts of Petraeus’ case are a matter of
public record. During his tenure as the commander of the International Security Assistance Force in Afghanistan, Petraeus
recorded handwritten notes in personal journals, including information he knew was classified at the very highest levels.
These journals contained top secret and even more sensitive “code word” national defense information, including the identities of covert officers, war strategy, intelligence capabilities, diplomatic discussions, and quotes and deliberative discussions from National Security Council meetings, including discussions with the president of the United States.
Both the law and his oath required Petraeus to mark these books as “top secret” and to
store them in a Secured Compartmented Information Facility. He did neither.
Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.
Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, “
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.”
When questioned by the FBI, Petraeus
lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. As Mukasey
also highlighted, the key element is that Petraeus’ conduct was done “knowingly.” That is, when he stored his journals containing “highly classified” information at his home, he did so knowingly. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly.
In sharp contrast, Clinton is not being investigated for knowingly sending or receiving classified materials improperly.
Petraeus prosecutor: Clinton committed no crime