The FBI’s Aug. 8 execution of a search warrant on former President Donald Trump’s home and its seizure of about a dozen boxes of government information are unprecedented. Key facts are still unknown to the public, and as Asha Rangappa, Norm Eisen, and Brad Moss explained yesterday, it is not yet possible to determine exactly which federal criminal statutes might apply to Trump’s retention of government documents. Even as facts develop, it may be helpful to recall an FBI raid to retrieve classified government information from the home of another former high-ranking official less than a decade ago — that of former CIA Director and retired U.S. Army General David Petraeus.
The Facts of the Petraeus Case
According to court documents, Petraeus, while commander of the multinational military mission in Afghanistan known as ISAF in 2010–11, “maintained bound, five-by-eight inch notebooks that contained his daily schedule and classified and unclassified notes.” Some of these “Black Books,” as the prosecution referred to them, “contained classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and defendant David Howell Petraeus’s discussions with the President of the United States of America.” Further, they “contained national defense information, including Top Secret/SCI and code word information.” A Department of Defense (DOD) historian had organized and, following Petraeus’s retirement from the DOD, transmitted his materials to the National Defense University, which houses the department’s classified documents. However, Petraeus “personally retained the Black Books.”
In August 2011, after he had returned permanently from Afghanistan and a few months before his swearing-in as CIA Director, Petraeus emailed Paula Broadwell, with whom he was having an extramarital affair, promising her access to the Books. He had previously informed her in a conversation she recorded that the Books were “highly classified” and contained “code word” information. That same month, he delivered the Books to her residence in D.C., where he left them for a period of days “in order to facilitate” Broadwell’s “access to the Black Books and the information contained therein to be used as source material for his biography, titled All In: The Education of General David Petraeus.” Thereafter, he kept the Books in his home in Arlington, Virginia.
Petraeus had signed multiple non-disclosure and secrecy agreements while at the DOD and CIA. Upon his resignation from the CIA in November 2012, when details of his affair came to light, Petraeus additionally signed a Security Exit Form certifying that “there is no classified material in my possession, custody, or control at this time.” The Black Books were at the time still in his home.
In October 2012, FBI agents interviewed Petraeus, advising him that they were doing so in the course of a criminal investigation. Petraeus stated during the interview that he had never provided classified information to Broadwell, nor facilitated her access to such information. The documents supporting Petraeus’s eventual plea agreement noted that he “then and there knew that he previously shared the Black Books” with Broadwell. Ultimately, Petraeus was not charged with making false statements to the FBI in violation of 18 U.S.C. § 1001(a)(2). That statute criminalizes “knowingly and willfully . . . mak[ing] any materially false, fictitious, or fraudulent statement or representation” in connection with “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government.
In April 2013, the FBI seized the Books pursuant to a search warrant executed at his home.
Petraeus reached a deal with the Justice Department to plead guilty to one count of unauthorized removal and retention of classified material, in violation of a federal statute, 18 U.S.C. 1924, which then provided, in relevant part:
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
DOJ alleged that Petraeus “being an employee of the United States, and by virtue of his employment, became possessed of documents and materials containing classified information” and that he “did unlawfully and knowingly remove such documents and materials at unauthorized locations, aware that these locations were unauthorized for the storage and retention” of such materials.
The charge carried a maximum punishment of one year in prison and a $100,000 fine. (The statutory maximum sentence was increased to five years in 2018.)
In the plea agreement, prosecutors and Petraeus agreed to two years of probation and a $40,000 fine. Certain Justice Department officials, and FBI agents in particular, were reportedly upset about the lenient terms of the plea. They worried Petraeus’s case would set a precedent that would make it more difficult to secure prison sentences in future government leak cases.
The judge agreed to the probation term in Petraeus’s plea agreement, but increased the fine to $100,000. The court wrote in adding to the recommended fine that it desired the sentence to “reflect the seriousness of the offense,” and “promote respect for the law, provide just punishment, and afford adequate deterrence.” It noted that given various sentencing factors and the defendant’s ability to pay, that the fine, taken together with other sanctions, “should be punitive.”