Anne M. Tompkins

This column was originally published Aug. 30, 2015.

Former attorney general Michael Mukasey recently compared the inquiry into Hillary Clinton’s use of a private email server when she was secretary of State with former CIA director David Petraeus’ federal conviction for the unauthorized removal and retention of classified information.

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.

The facts of Petraeus’ case are a matter of public record. During his tenure as the commander of the International Security Assistance Force in Afghanistan, Petraeus recorded handwritten notes in personal journals, including information he knew was classified at the very highest levels.

These journals contained top secret and even more sensitive “code word” national defense information, including the identities of covert officers, war strategy, intelligence capabilities, diplomatic discussions, and quotes and deliberative discussions from National Security Council meetings, including discussions with the president of the United States.

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Both the law and his oath required Petraeus to mark these books as “top secret” and to store them in a Secured Compartmented Information Facility. He did neither.

Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.

Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, “I mean, they are highly classified, some of them. They don’t have it on it, but I mean there’s code word stuff in there.”

When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. As Mukasey also highlighted, the key element is that Petraeus’ conduct was done “knowingly.” That is, when he stored his journals containing “highly classified” information at his home, he did so knowingly. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly.

In sharp contrast, Clinton is not being investigated for knowingly sending or receiving classified materials improperly.

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Indeed, the State Department has confirmed that none of the information that has surfaced on Clinton’s server thus far was classified at the time it was sent or received. Additionally, the Justice Department indicated that its inquiry is not a criminal one and that Clinton is not the subject of the inquiry.

Here, the inspector general and the Justice Department are following an established protocol when it is determined that there has been an unauthorized disclosure of classified materials — here, by virtue of a potential after-the-fact change in classification. This protocol ensures that any classified information is properly handled going forward.

Reasonable minds can certainly differ about the wisdom of using a personal server to conduct the official business of the State Department. In recent days, Clinton has taken responsibility for using a private server and admitted that using separate accounts would have been a better choice.

Her decision not to segregate her email accounts was regrettable, but unlike the actions and prosecution of Petraeus, there has been no evidence of criminal conduct.

Anne M. Tompkins is a partner at Cadwalader, Wickersham & Taft and former United States attorney for the Western District of North Carolina. She is a donor to Hillary Clinton's presidential campaign.

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