Could Petraeus’s Plea Deal Boost Edward Snowden and Other Leakers?

The double standard in the case of former CIA director Gen. David Petraeus may result in a legal boon for other leakers who are seeking lighter penalties for similarly releasing classified information.

Even as he continues to consult for the White House National Security Council, Petraeus is preparing to plead guilty to giving classified information to his biographer Paula Broadwell, and then lying about it to the FBI. His plea deal, which must be approved by a judge, lets the former four-star avoid jail but places him on probation and slaps him with a $40,000 fine.

Consider, by contrast, the case of former State Department contractor Stephen Kim. He is serving a 13-month sentence in a federal lockup for leaking classified materials on North Korea’s nuclear program to Fox News reporter James Rosen. Kim pleaded guilty in April 2014 to a felony violation of the Espionage Act.

Then there’s National Security Agency leaker Edward Snowden, whose leaks were far more extensive than either Petraeus’s or Kim’s. Snowden argues he was doing a public service by revealing the extent of NSA surveillance, but the White House maintains his revelations make the country less safe.

National security experts say the relative leniency of Petraeus’s plea arrangement opens the door for attorneys to argue harsh punishments against other leakers are unfair.

That’s the argument Abbe Lowell, Kim’s attorney, is now making. In a March 6 letter to Ronald Machen, the U.S. attorney for the District of Columbia, Lowell argued Petraeus’s crimes were just as serious as Kim’s, and called for Kim’s release. He also said Kim was trying “to have others understand the nature of the threat of North Korea” while Petraeus leaks were for “very personal” reasons, referring to an affair between the former general and Broadwell.

“It does strike me that on the level of rhetoric, if not on the level of pure legal argument, Lowell is making a powerful point,” Kathleen Clark, a national security law expert at Washington University in St. Louis, told Foreign Policy.

Steve Vladeck, professor of law American University’s Washington College of Law, agreed. “It’s not really a legal argument as much as it’s a moral and policy argument that’s directed at the U.S. attorney.”

But it does have legal implications. Vladeck said it’s too late to go back and change the terms of Kim’s deal. But, he said, Lowell’s letter lays a foundation for a formal request to have the rest of Kim’s sentence commuted.

“Just as much as it was prosecutorial discretion that led to the deal in the first place, prosecutorial discretion could be used to put [Kim and Petraeus] on equal footing,” Vladeck said. “The prosecutor can’t undo the plea, but he could not oppose Kim’s request for early release.”

Lowell told FP in an email that he did not have a comment beyond the letter.

Can the same standard apply to Snowden? It’s up to those doing the prosecuting.

“It may well be that ideologically based leaks are seen as a greater threat than personally motivated leaks or leaks to biographers,” Washington University’s Clark said.

Photo Credit: Kevork Djansezian