Prosecute Petreaus?

The New York Times reports that FBI and Justice Department prosecutors have recommended bringing felony charges against Gen. David Petraeus. He would be charged with providing classified information to Paula Broadwell, an author and an officer in the reserves, with whom he was having an affair. Eric Holder reportedly is trying to make up his mind on whether to prosecute.

Petraeus denies that he gave classified information to Broadwell. However, FBI officials reportedly found such documents on her computer after Petraeus resigned from the CIA when news of the affair became public. But it does not appear that the disclosure by Petraeus, if any, resulted in harm to the nation.

Indeed, President Obama has said that he knows of no evidence that Petraeus disclosed classified information “that in any way would have had a negative impact on our national security.” Obama has also said that “we are safer because of the work that Dave Petraeus has done.”

That’s an understatement. Who has done more than Petraeus to help the United States win the war on terrorism?

According to the Times, federal investigators say it doesn’t matter whether Petraeus’ alleged disclosure harmed national security. They insist that it represented a significant security breach and that lower-ranking officials have been prosecuted for far less.

The mere fact that no harm resulted from the alleged breach should not be dispositive. But it should matter whether the “breach” was at all likely to cause harm. If the leak was to a friend with no apparent intention of spreading the information, it was never likely to cause harm.

This appears to have been the situation here. The leak was to Petraeus’ girlfriend, a West Point graduate and reserve military officer. Although she is also an author, Broadwell apparently did not disclose the classified information in her writings, although they may have provided her with relevant background information.

Assuming these facts, Petraeus’ case is quite different from a government official leaking classified material to a reporter. In that circumstance, it is quite likely that the reporter will disclose the leaked information to the public at-large. In fact, the very purpose of the leak will normally be to have the information become public.

In these cases, prosecution typically will be warranted.

As noted, investigators claim that lower-ranking officials have been prosecuted for far less than what Petraeus allegedly has done. But who has been prosecuted for leaking information to a friend, as opposed to a reporter, where no harm occurred or was ever likely to? If the government is prosecuting such cases, the answer is to stop doing it, not to bring that kind of case against an American hero.

Let’s assume that, contrary to what Petraeus says, the General did commit a technical violation. There is, as the Obama administration has reminded us, such a thing as prosecutorial discretion.

The concept is not properly invoked to excuse an entire class of offenders, numbering in the millions, in contravention of federal immigration law. It is properly invoked in a case like Petraeus’ (assuming the facts are as I gather them to be) to avoid wasting resources on a case that really doesn’t need to be brought.

President Obama also has the option of pardoning Petraeus. That’s a better idea than prosecuting him. But I think the best course is simply to drop the matter, assuming there aren’t facts more damaging than those that have been reported.

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