From the July 5 edition of MSNBC's MTP Daily:
CHUCK TODD: All right, let me ask you, cause it's the comparison that every layperson in politics makes, which is what David Petraeus got prosecuted for and what Hillary Clinton did not get prosecuted for. What are the similarities, what are the differences?
JAMES MELENDRES: Sure. So, I'll use what Director [James] Comey said today in his statement as a frame. Just to be clear, everything that I’m going to refer to is in the public record in both cases. The core of Director Comey's statement concerned the lack of evidence regarding willfulness. And I believe the term he used was that in the investigation of Secretary Clinton and her home server that the FBI had not uncovered any evidence of clear willfulness. Now, in criminal prosecutions, as a general matter -- and this is criminal prosecution 101 -- the government is required to prove at least two things. One is the required mental state, and the second is the physical act that constitutes the actual crime. And according to Director Comey today, the FBI in this investigation did not identify information that it believed would meet the standard of willfulness.
Now, by contrast, in the prosecution of former Central Intelligence Agency director David Petraeus, the department and I and the FBI were comfortable that there was evidence that satisfied that willfulness standard, and in particular -- and this is included in the plea agreement in the factual basis, that former director Petraeus executed with the government -- there was information that was developed based on recordings that his biographer had made of conversations -- and in particular, in those recordings, former director Petraeus said explicitly and specifically that the information in the black books that he shared was highly classified. And then just about two weeks after making that statement, he went ahead and by e-mail confirmed to his biographer that he was going to share the black books with her.
TODD: So, there was obvious evidence here that he was willfully doing this. What you're saying today is Director Comey did not have that level of evidence with Secretary Clinton.
MELENDRES: That's correct. And the other point that Director Comey made which I think bears repeating, in particular in contrast to the Petraeus prosecution, was that in addition to a lack of clear willfulness Secretary Clinton's matter, there also were not aggravating circumstances. Director Comey suggested that some of those aggravating circumstances could have been evidence of large-scale transmission of classified information, evidence of disloyalty to the United States or obstruction of justice. Turning to the Petraeus matter -- and this, again, is included in the plea agreement, which is public -- former director Petraeus acknowledged and admitted that when he was interviewed by the FBI at the CIA, he told them that he had not shared classified information with his biographer, when in fact, he knew then and there that he had.
TODD: He got caught lying.
MELENDRES: So, that was another distinguishing feature.
TODD: He bottom-line got caught lying.