Why The Clinton Email Case Is Substantially Different From David Petraeus' Crimes

In response to FBI Director James Comey’s announcement that the FBI is not recommending criminal charges in the investigation into Hillary Clinton’s use of private email as secretary of state, right-wing media fell back on the already debunked claim that former CIA Director Gen. David Petraeus was charged in a similar case. Other media outlets pointed out the many differences between the Petraeus case -- which involved the general intentionally sharing classified information with his biographer -- from the Clinton case, noting that it is “flatly wrong” to compare the two.

FBI Director James Comey Recommends No Prosecution In Hillary Clinton Email Server Case

FBI Press Release: “We Cannot Find A Case That Would Support Bringing Criminal Charges On These Facts.” In a July 5 press release, FBI Director James Comey stated that “no reasonable prosecutor would bring such a case” against former Secretary of State Hillary Clinton (now the presumptive Democratic presidential nominee) for her use of a private email server while serving as secretary of state. Comey noted that “in looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts”:

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. 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. We do not see those things here. [FBI.gov, 7/5/16]

Conservative Media React To Comey’s Announcement By Pushing False Comparison Between Clinton And Petraeus Cases

Fox’s Jon Scott Compared Clinton Case To Petraeus Case, Asking, “Is There No Parallel Here?” Fox host Jon Scott asked Fox’s Bret Baier whether there was a “parallel” between the Clinton email case and the case surrounding Gen. David Petraeus, former director of the CIA, noting that Petraeus was “originally charged with a felony.” Baier used the opportunity to speculate about the “political timing of this.” From the July 5 edition of Fox News’ Happening Now:

JON SCOTT (CO-HOST): It is certainly not something that she's going to be putting on her campaign brochure as part of her qualifications. I'm sure the Clinton campaign will try to distract people from it, say look, the FBI found nothing, and there's Hillary Clinton right now appearing live at a campaign appearance. We don't expect her to address this announcement from the FBI director, but she is out on the campaign trail right now. I'm curious, Brett, when the FBI director started to talk about past cases where they've looked at mishandling of classified information, one of those involves Gen. David Petraeus, war hero, head of the CIA, gave his personal diaries that had some classified information on them apparently to his biographer and he was originally charged with a felony. Eventually that was brought down. He pled down to a misdemeanor is my recollection. But is there no parallel here?

BRET BAIER: I think it really came down to what General Petraeus told the FBI along the way talking about that specific investigation, and I think that's where the difference was. it's interesting and just the political timing of this. It comes obviously after the Bill Clinton Loretta Lynch meeting, we talked a lot about that. Then you have -- it’s coming on the same day President Obama is campaigning for Hillary Clinton in North Carolina, so the image is just not that great to begin with, but it's also that if you look into exactly what James Comey said, it is not flattering and it really goes up against what Hillary Clinton has been saying about this from the beginning. That said, the bottom line is that she likely is not going to face any charges, because the prosecution, the prosecutors at the DOJ are going to go along with the FBI, and we heard that from Loretta Lynch in defending that Clinton meeting on the tarmac. [Fox News, Happening Now, 7/5/16]

Fox’s Meghan McCain: "If You're Conservative,” “A General,” Or “Not In Line With The Obama Administration, You’ll Go To Jail.” Fox host Meghan McCain praised Donald Trump’s comparison of the Clinton email case to charges brought against Petraeus (“General Petraeus got in trouble for far less,” he tweeted), saying that “if you're a conservative, if you’re a general, if you’re someone that’s not in line with the Obama administration, you’ll go to jail, or you’ll lose your job,” but “if you’re Hillary Clinton, she can do whatever she wants.” From the July 5 edition of Fox News’ Outnumbered:

MEGHAN MCCAIN (CO-HOST): It feels like a really sad day for democracy in a lot of different ways. People are so jaded right now, especially young millennials after the end of Bernie Sanders’ campaign. And it’s hard enough to sell why young people should be involved in politics and feel inspired when if you have enough money, if you’re powerful enough, if you have the right husband, you can do a lot of illegal stuff, and you’re not going to get charged. And I actually think Donald Trump's tweet talking about General Petraeus completely showcases the great juxtaposition between if you're a conservative, if you’re a general, if you’re someone that’s not in line with the Obama administration, you’ll go to jail, or you’ll lose your job. But if you’re Hillary Clinton, she can do whatever she wants. That’s what’s scary about this. She can do literally whatever she wants and she’s going to get away with it. [Fox News, Outnumbered, 7/5/16]

Rush Limbaugh Claimed Petraeus “Was Charged With The Crimes That Hillary Clinton Could Have Been Charged With.” In response to Comey’s recommendation, conservative radio host Rush Limbaugh claimed that the “Obama administration … pursued and went after Petraeus” and charged him “with the crimes that Hillary Clinton could have been charged with.” From the July 5 edition of Premiere Radio Networks’ The Rush Limbaugh Show:

RUSH LIMBAUGH (HOST): And, remember, Petraeus was actually charged with the crimes that Hillary could have been charged with. He revealed classified data to his biographer/mistress. Writing a book on him, she gave him, or he gave her classified information, passed it along, and it was the regime, it was the Obama administration, which pursued and went after Petraeus and basically took him out. He was somebody at one time being talked about as a potential Republican presidential or vice presidential candidate, but they took care of him. Petraeus’ reputation’s gone, and it’s no better than the guy who did the video that did not incite the protests and the violence in Benghazi. [Premiere Radio Networks, The Rush Limbaugh Show, 7/5/16]

Petraeus’ Charges Were Based On The Fact That He Knowingly Mishandled Classified Information

Petraeus Admitted To Giving Biographer “Highly Classified” Black Books. The New York Times reported that  Petraeus told his biographer and mistress Paula Broadwell that some of the information contained in the black books he was giving her, detailing aspects of the war in Afghanistan, was “highly classified”:

As part of the plea agreement, Mr. Petraeus admitted that he gave his lover, Paula Broadwell, who was writing a biography about him, black notebooks that contained sensitive information about official meetings, war strategy and intelligence capabilities, as well as the names of covert officers.

According to court documents, he discussed the black books during an interview that Ms. Broadwell taped with Mr. Petraeus while she was working on the biography, telling her, “They are highly classified, some of them.”

Three weeks later, he gave her the notebooks. [The New York Times, 4/23/15; Media Matters, 8/4/15]

Petraeus “Unlawfully And Knowingly” Removed Classified Documents. Petraeus was found to have “unlawfully and knowingly” removed classified documents “without authority” before moving them to “unauthorized” locations:

Between in or about August 2011, and on or about April 5, 2013, defendant DAVID HOWELL PETRAEUS, being an employee of the United States, and by virtue of his employment, became possessed of documents and materials containing classified information of the United States, and did unlawfully and knowingly remove such documents and materials without authority and thereafter intentionally retained such documents and materials at the DC Private Residence and the PETRAEUS Residence, aware that these locations were unauthorized for the storage and retention of such classified documents and materials. [U.S. v. Petraeus, Factual Basis in Support of Plea Agreement, 3/3/15; Media Matters, 8/4/15]

Conservative Media Have Long Thrown Around The Petraeus Comparison

Fox’s Catherine Herridge: There's A “Double Standard” Between Treatment Of Petraeus And Clinton. Fox chief intelligence correspondent Catherine Herridge claimed that the lack of a criminal investigation into Clinton's email use “strongly suggests a double standard” between Clinton and Petraeus on the July 31 edition of The Kelly File:

CATHERINE HERRIDGE: If you do a search of the more than 1,300 documents dropped today, using a code for classified information, you'll find 37. This, after the intelligence community's watchdog concluded there are potentially hundreds of classified documents on Clinton's personal server.


HERRIDGE: Court documents filed in the prosecution of former CIA Director David Petraeus strongly suggests a double standard. The retired general was prosecuted for the unauthorized removal, sharing and storage of classified information held at his home. Quote, “The FBI executed a court-authorized search warrant at the Petraeus residence and seized the black books from an unlocked desk drawer in the first-floor study of the Petraeus residence.” [Fox News, The Kelly File, 7/31/15]

Fox’s Melissa Francis: Clinton Did “Exactly What General Petraeus Was Accused Of.” Fox Business Network's Melissa Francis compared Clinton to Petraeus, saying that “she has done the exact same thing” on the July 31 edition of Outnumbered:

MELISSA FRANCIS: This is exactly what General Petraeus was accused of. It does seem like, as you look through the guidelines, that she has done the exact same thing, and that they have the right to both secure this thumb drive that they're talking about and also the server. So I don't see any way, as you comb through the elements, that this is an unequal treatment between these two cases. [Fox News, Outnumbered, 7/31/15]

Washington Examiner's Susan Ferrechio: “The Differences Are Not All That Great” Between Clinton And Petraeus. Susan Ferrechio of the Washington Examiner compared Clinton's emails to Petraeus' criminal case on the August 3 edition of The Real Story With Gretchen Carlson, while host Gretchen Carlson asked if there was a “double standard”:

GRETCHEN CARLSON: The State Department releasing another batch of Hillary Clinton emails from her private email server. Critics now questioning the lack of oversight in this case as compared to the treatment of CIA Director David Petraeus. As you recall, he was prosecuted for mishandling classified information, the FBI actually raiding his home. But no such aids for Hillary Clinton. So is there a double standard?


SUSAN FERRECHIO: But it's really hard not to just see the stark comparison here. Everybody is bringing up the General Petraeus case. He was prosecuted for storing classified material in his home. He was criminally charged and convicted, and he had to lose his job as head of the CIA, and he ended up on probation and paying a hefty fine. Yet, if you look at what Mrs. Clinton is doing, the differences are not all that great between the two parties, although he also did give classified information to Paula Broadwell, his biographer and his mistress. [Fox News, The Real Story, 8/3/15]

Media Point Out The Differences Between The Clinton And Petraeus Cases

CNN’s David Axelrod: “To Say [Clinton] Should Have Been Treated The Way [Petraeus] Was Is Just Flat Out Wrong.” CNN political commentator David Axelrod explained the differences between the Clinton and Petraeus cases, slamming Trump for making a comparison between the two. From the July 5 edition of CNN’s At This Hour with Berman and Bolduan:

DAVID AXELROD: I think it's dangerous to do what Donald Trump did, which is to say the system is rigged, to say that -- to suggest that the thing was fixed. This delegitimization of our institutions, particularly the investigative justice system, is very, very -- it's a very irresponsible thing to do. Jim Comey is widely respected as a guy of integrity. He's proven it not just recently as FBI director but when he was in the Justice Department and took some very courageous stands against the White House on some matters. It was interesting to me that [Republican National Committee spokesperson] Sean Spicer didn't color out of those lines. He tried, after you read him Trump's statement, to circle around a little and square the circle. But it is fair game for Republicans to question Hillary Clinton based on the words of the FBI director. It's not fair game to say, well, Petraeus -- as Trump has said repeatedly, Petraeus got in trouble for far less. General Petraeus gave classified information to his biographer with whom he was having a relationship knowingly and he pled guilty to charges related to that. What he did was far different than what the FBI director suggested. So to say she should have been treated the way he was, it's just flat out wrong. [CNN, At This Hour with Berman and Bolduan, 7/5/16]

MSNBC’s Pete Williams: “The Big Difference” Between Clinton and Petraeus Is That Petraeus “Knew There Was Classified Information.” MSNBC justice correspondent Pete Williams explained the difference between Clinton’s and Petraeus’ cases on the July 5 edition of MSNBC Live, noting that “the big difference” is that Petraeus gave someone “entire notebooks of information” and “said he knew there was classified information there.”

TAMRON HALL (HOST): Pete, you are so excellent at explaining the difference in cases, particularly now when you look at social media and you have a number of people pointing to David Petraeus. But this goes back to intent. It also goes back to quantity of this information that was reviewed here.

PETE WILLIAMS: Well in Petraeus' case, he gave to Paula Broadwell, the woman who was writing his biography, who turned out to be his mistress, we now know, he gave her entire notebooks of information, and there were audio recordings in which he said he knew there was classified information there. I think that's the big difference. [MSNBC, MSNBC Live, 7/5/16]

CNN’s Evan Perez: Cases Concerning Clinton And Petraeus “Are Far, Far Different.” CNN justice correspondent Evan Perez said the cases involving Clinton and Petraeus “are far, far different,” explaining that Petraeus “took classified information” and gave it to “his girlfriend that he was having an affair with.” Perez noted, “That’s a far different thing from being careless about setting up a private server in your home.” From the July 5 edition of At This Hour with Berman and Bolduan:

KATE BOLDUAN (CO-HOST): Let's talk more about those comparisons between Gen. David Petraeus and what happened in his circumstance and what we're seeing here with Hillary Clinton. Let's bring back Evan Perez. Evan, you know both cases very, very well. Donald Trump's tweet, one of them saying, just for our viewers again, the tweet said, this is his reaction to what was announced on the show, “The system is rigged, General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.” How are these cases similar? More importantly, how are they very different?

EVAN PEREZ: He's right that this is bad judgment on the part of Hillary Clinton and David Petraeus. The cases, though, are far, far different. We're talking about, in the case of David Petraeus, he took classified information, things about troop movements and things that really had no business leaving a safe. He had a safe at his home where he kept this information, and he provided it to his lover, to his girlfriend that he was having an affair with. That's a far different thing from being careless about setting up a private server in your home. [CNN, At This Hour With Berman and Bolduan, 7/5/16]

USA Today Publishes Op-Ed By Prosecutor In Petraeus Case That Affirms “This Comparison Has No Merit.” USA Today re-posted an August 30 op-ed by former prosecutor Anne M. Tompkins, who oversaw the Petraeus case, on its website on July 5. The piece echoed the main point of difference between the two cases, that “unlike Petraeus, Clinton did not ‘knowingly’ store or share classified information in violation of the law” (emphasis original):

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. [USA Today, 7/5/16]