A decision about whether to prosecute isn’t always straight forward.
(Bloomberg) — Donald Trump, Joe Biden and now Mike Pence join a long line of US officials investigated for mishandling classified material. A look at dozens of similar cases over decades shows that the Justice Department’s decision to press charges is rarely as simple as it might seem.
With national security at stake, even the most clear cut cases can suddenly become murky when it comes time to apply consequences. Prosecutors look at factors far beyond whether the offenders simply took documents they shouldn’t have.
Who the people are, what they took, why they took it and whether they cooperated all play a role in determining how aggressively to respond, along with the risk that pursuing prosecutions could expose more state secrets at trial. Punishment has varied from prison to fines to losing security clearance to practically nothing at all beyond the public comeuppance.
A review of 31 cases over the past 20 years shows targets ranged from former Cabinet officials to low-level contractors. Records seized by federal agents in these investigations has fluctuated from five pages to the digital equivalent of 500 million pages. The secrets at stake included intelligence sources, details of US missile defense programs and information about drone warfare. The records were sometimes returned intact, sometimes altered, destroyed or lost forever, and often times shared with others, from reporters to foreign adversaries.
A wild-card factor in bringing charges is whether the agency or agencies whose records were exposed is willing to let the material become completely public in the course of a trial, according to Scott Garland, a former federal prosecutor in Massachusetts and now managing director for Affiliated Monitors.
“They might say, ‘That’s our information, and under no circumstances do we want you to do a prosecution based on it,’” Garland said.
While the most severe acts, like selling secrets to foreign agents, can lead to life in prison, the most mundane cases aren’t likely to be prosecuted at all. Those are inadvertent offenses such as when a government official accidentally puts a document in her briefcase and immediately reports and returns it, according to David Kris, a former head of the Justice Department’s National Security Division, and now cofounder of Culper Partners consulting firm.
The next level of severity would be punishments that fall short of formal criminal charges, such as an administrative sanction or taking away a security clearance, Kris wrote in an email. Cases are more likely to be prosecuted when they involve “aggravating factors,” such as proof that the information was taken on purpose, shared with someone who shouldn’t have access or if the offender isn’t cooperative with an investigation, Kris said.
An official’s rank or former office — including the presidency — isn’t a shield against prosecution, but the Justice Department has been criticized for striking generous deals that avoid prison time or eschewing charges entirely in cases involving high-level officials.
Former National Security Advisor Sandy Berger was sentenced to probation, community service and a $50,000 fine after pleading guilty to taking five copies of documents from the National Archives. Former CIA Director David Petraeus was sentenced to probation and a $100,000 fine for sharing notebooks from his time in the Army command with a biographer.
Former CIA Director John Deutch lost his security clearance for having classified information on an unsecured computer at his home, but wasn’t prosecuted. In a now-infamous public announcement in the fall of 2016, then-FBI Director James Comey said that former secretary of state and Democratic presidential nominee Hillary Clinton and her colleagues had been “extremely careless” in handling classified information on a private email server, but there was no evidence of intent to violate the law; she was not charged.
A big pile of documents can make a clearer case for charges. Former National Security Agency contractor Harold Martin, whose case was heralded as the largest in history, took over the span of 20 years more than 50 terabytes of information – enough storage space for roughly 500 million pages — as well as hard copy documents, according to the government. A vast quantity of it was classified. In another case, a former engineer for Raytheon Technologies Corp., who worked on defense contracts, pleaded guilty to taking 31,000 pages of classified information.
Investigations into leaks by officials to journalists that included sensitive information dramatically increased during the Obama and Trump administrations. Reality Winner, also a former NSA contractor, was prosecuted for sharing a five-page classified intelligence report with a journalist, which prosecutors argued hurt national security for revealing “sources and methods.” Former State Department intelligence adviser Stephen Jin-Woo Kim was prosecuted for orally sharing classified information with a journalist – no documents were involved, a point Kim’s lawyers stressed in trying to distinguish his case. He was sentenced to 13 months behind bars.
The most common charges in classified information cases require the government to show a defendant acted “knowingly” or “willfully.” Additionally, evidence that a government employee or contractor shared classified information with someone who wasn’t authorized to have it – especially if there’s a connection to a foreign adversary – makes the government more likely to prosecute and to press more severe charges.
Benjamin Bishop, a former defense contractor and retired Army officer, was sentenced to more than seven years in prison after pleading guilty to sharing classified material with a woman from China he was dating, including information about relations between the US and South Korea. Ron Hansen, a former Defense Intelligence Agency officer, was sentenced to 10 years in prison for attempting to give US military readiness materials to Chinese intelligence; he admitted accepting hundreds of thousands of dollars.
The Petraeus investigation picked up when, in the course of exploring an unrelated case, the FBI learned Petraeus had shared notebooks with his biographer when the two were also involved in a romantic relationship. Petraeus pleaded guilty to mishandling classified information – at the time a misdemeanor, now a felony.
In some cases, defendants who pleaded guilty to taking home large troves of classified material insisted it was for benign purposes, like catching up on their workload. That didn’t stop them from facing significant prison time.
Robert Hur, appointed as special counsel to investigate the discovery of classified information at Biden’s home and office, was the US attorney in Maryland when two such cases – against Martin and former NSA employee Nghia Pho – reached sentencing. He sent statements at the time decrying the “disregard” of oaths to protect national security information and vowing to prosecute those “who flagrantly violate their duty to protect classified materials.”
Some cases involved defendants who took steps to hide information about classified material in their position, destroyed evidence, or lied.
Berger, the former national security adviser, cut up three of the five documents he took into small pieces and threw them away. Petraeus falsely told the FBI he hadn’t shared classified information with his biographer, though he wasn’t charged with that.
Terry Albury, a former FBI agent, admitted taking steps to try to avoid detection when he accessed classified information over a period of 18 months and shared it with a reporter. He copied and pasted sections of documents into a new file to print to avoid leaving a paper trail, and took pictures of a computer screen. Albury was sentenced to four years in prison.
Even if the basic facts look familiar — protected government information discovered where it wasn’t supposed to be — nearly everything else about the probes circling Trump, Biden, and now potentially Pence is unprecedented. The intense political sensitivities forced Attorney General Merrick Garland to appoint outside special counsels. No sitting or former president has ever been indicted. Cases involving high-ranking officials are rare, but they do exist, Scott Garland pointed out.
“Just because you’re at the top of the government doesn’t mean you’re immune,” he said.
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