Defense lawyer rips Petraeus plea deal for ‘double standard’ in leak cases

Michael Isikoff
Chief Investigative Correspondent
In this June 23, 2011 file photo, CIA Director nominee Gen. David Petraeus testifies on Capitol Hill in Washington, before the Senate Intelligence Committee during a hearing on his nomination. (Cliff Owen/AP Photo)

The lawyer for a former State Department contractor imprisoned last year for leaking classified information is asking federal prosecutors for the “immediate release” of his client in light of the relatively lenient treatment of former CIA Director David Petraeus for similar conduct.

Abbe Lowell, the lawyer for former contractor Stephen Kim, acknowledged that he’s not expecting a positive response to a recent letter he wrote to Ronald Machen, the U.S. attorney for the District of Columbia, and three other federal prosecutors who pursued his client.

But Lowell wrote the letter, obtained by Yahoo News, to highlight what he described as a “profound double standard” in the government’s prosecution of leak cases — a subject of mounting debate that could weigh on the Justice Department's decision in at least one ongoing high-profile leak probe. 

The issue of the differing treatment of leakers — and especially the relatively light plea deal for Petraeus, who will receive no prison time — is also expected to come up in next month’s sentencing of Jeffrey Sterling, a former CIA officer convicted of leaking classified information to New York Times reporter James Risen.

Former CIA officer Jeffrey Sterling leaves the Alexandria Federal Courthouse, Monday, Jan. 26, 2015, in Alexandria, Va., with his wife, Holly, after being convicted on all nine counts he faced of leaking classified details of an operation to thwart Iran's nuclear ambitions to a New York Times reporter. (Kevin Wolf/AP Photo)

Edward MacMahon, one of Sterling’s lawyers, confirmed to Yahoo News that he too will be citing the Petraeus case when his client — who is potentially facing up to 10 years in prison — is sentenced next month. “I’ll be discussing all the sentencing in leak cases,” MacMahon said.

After a five-year legal battle, Kim — one of the State Department’s top experts on North Korea’s nuclear program — pleaded guilty to a felony violation of the Espionage Act in April 2014 for leaking classified information to Fox News reporter James Rosen and was sentenced to 13 months in federal prison.

But Lowell argues that Kim’s prison term doesn’t square with the Justice Department’s decision earlier this month to allow Petraeus to plead guilty to a misdemeanor charge of mishandling classified information — and to forgo recommending any jail time, asking for a $40,000 fine instead.

“General Petraeus is admitting to disclosing [national defense information] that was at least as serious and damaging to national security as anything involved in Mr. Kim’s case,” Lowell wrote in his letter to Machen on March 6.

“Specifically, General Petraeus disclosed notebooks, containing ‘classified information’ regarding the identities of covert officers, war strategy … and deliberative discussions from high level National Security Council meetings.”

In court filings on March 3, Petraeus acknowledged turning over so-called black books — binders of notebooks he kept while serving as the top U.S. general in Afghanistan — to Paula Broadwell, his mistress and biographer. There was no evidence, however, that Broadwell used the classified information in her book.

But what irked Lowell, and prompted him to write the letter, was Petraeus’ admission that he lied to two FBI agents, falsely and knowingly denying that he leaked any classified information when he was questioned about the matter in October 2012, while he was CIA director.

Stephen Kim, a former State Department expert on North Korea, leaves federal court in Washington, Wednesday, April 2, 2014, after a federal judge sentenced him to 13 months in prison for passing classified information to a journalist. (Cliff Owen/AP Photo)

Lowell recounted in his letter to Machen that when he sought to secure a misdemeanor plea and no jail time for Kim, “you rejected that out of hand, saying that a large reason for your position was that Mr. Kim lied to FBI agents when he was confronted with the issue of his dealings with the Fox News reporter.”

Lowell argued that this underscores a point he and others have been making about the Justice Department’s handling of leak cases for some time: “lower-level employees like Mr. Kim are prosecuted under the Espionage Act because they are easy targets and lack the resources and political connections to fight back,” while “high level officials” like Petraeus “leak classified information to forward their own agendas (or to impress their mistresses) with virtual impunity.”

The Obama administration has been widely criticized by news organizations and watchdog groups — and praised by some in national security circles — for aggressively pursuing leak investigations, filing more criminal charges for violations of the Espionage Act (seven) than all previous administrations combined.

But the issue of double standards is getting increasing traction and is generating particular scrutiny now as the Justice Department weighs whether to file charges against another former high-level official, Gen. James “Hoss” Cartwright, former vice chairman of the Joint Chiefs of Staff. He is suspected of leaking classified information about a joint U.S.-Israeli effort to disrupt the Iranian nuclear program, using a computer virus called Stuxnet, to New York Times reporter David Sanger.

Vice Chairman of the Joint Chiefs of Staff Gen. James Cartwright holds a news briefing and update on the Don't Ask Don't Tell repeal implementation at the Pentagon January 28, 2011 in Washington, DC. (Chip Somodevilla/Getty Images)

Cartwright’s lawyer, former White House counsel Gregory Craig, has denied the charges. Some national security officials have raised concerns that bringing a case against Cartwright now would force the U.S. government to publicly acknowledge the covert program, thereby affecting U.S. national security and possibly disrupting efforts to negotiate a nuclear deal with Iran, according to a recent Washington Post account and a source familiar with the Cartwright investigation.

Mark Zaid, a national security lawyer who handles leak cases, said the letter would likely carry no legal weight with the Justice Department, given that the Kim case is closed. But, he added, “he absolutely has a moral point,” and “there is no doubt that the Petraeus case smacks of elitism.” The $40,000 fine that Justice is recommending for Petraeus is meaningless, said Zaid: “He’ll make that in one speech.”