Opinion: Hillary Clinton didn’t go where David Petraeus and Scooter Libby did

Emailgate dragged its bloodied body across an apparent finish line this morning, as FBI Director James B. Comey said that he would not recommend that Hillary Clinton face criminal charges related to her private email server. Unhappy with this latest development, conservative writers and organizations asserted that Clinton’s case was not substantively different from those brought against former Vice President Dick Cheney confidante Scooter Libby and former CIA Director David Petraeus, both of whom were sanctioned for their actions. The analogies don’t stand up to close examination, however.

John A. Tures wrote in the Huffington Post that the only difference between the Clinton and Petraeus case is that Petraeus took responsibility for his actions (this was after lying to investigators, and as part of his plea deal, facts which Tures skirts). Paul David Miller wrote in the Federalist, “If Sandy Berger and David Petraeus (and Scooter Libby) can have their careers derailed and legacies besmirched for similar infractions, there is no principled reason why Hillary Clinton should be immune.” Conservative advocacy group Americans for Limited Government made the same comparison, then concluded that “Comey’s decision to bow to political expediency erases all pretense that Lady Justice’s blindfold has not been stripped away by the Obama Administration.”

Comey noted that there was no precedent to bring criminal charges, as all prior cases had involved “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.” He underlined that the FBI “did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”

The Petraeus case was substantively different from the Clinton email case on two counts. One, Petraeus knowingly leaked classified information to a journalist with the express intent for it to be made public. Clinton has not been found to have done this. Two, Petraeus was convicted of giving false statements to the FBI, a charge that Clinton does not face.

FBI calls Clinton’s handling of email ‘extremely careless,’ but recommends no prosecution »

Libby, meanwhile, wasn’t convicted for leaking classified material. Instead, he was found guilty of making false statements to the FBI and lying to a federal grand jury (in addition to obstructing a probe into the leak). Clinton has not been found to have done any of these things.

According to Comey, the FBI’s investigation revealed that 110 emails in 52 email chains were determined to include classified information at the time they were received. Eight of those had “top secret” information, 36 had “secret information,” and eight had “confidential” information. They found no evidence of a cover-up.

In the Petraeus case, which came to light in 2012, the CIA director was found to have shared highly classified documents with his biographer, Patricia Broadwell, during the course of their affair. Investigators found more than 100 photographs from notebooks Petraeus had given her, as well as secret PowerPoint briefings on the war in Afghanistan. The Justice Department threatened to charge him with three felonies, which could have landed him in prison for years. They eventually settled on a misdemeanor plea deal, where Petraeus pleaded guilty to giving false statements to the FBI, paid a $100,000 fine and was sentenced to two years’ probation. Petraeus, regarded as one of the military’s most skillful commanders by Democrats and Republicans alike, resigned in shame.

Scooter Libby’s scandal related to the leak of CIA covert agent Valerie Plame Wilson’s identity. In his famous 2003 State of the Union address, President George W. Bush said “the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Six months later, Plame Wilson’s husband, Joseph Wilson, wrote a New York Times op-ed saying that he had not found yellowcake uranium, and said that “it was highly doubtful that any such transaction had ever taken place.” Plame Wilson’s identity was then leaked to journalists, in apparent retribution for Wilson’s statement against the government. Libby was indicted on four felony counts related to his involvement in the leak, fined $250,000 and sentenced to a 30-month prison sentence, which Bush commuted and Libby never served.

The Clinton email scandal raises questions about her judgment. In March, The Times’ editorial board wrote that Clinton’s decision to use a private rather than a governmental email server was disturbing and bad policy. Her actions have animated her critics and rankled her supporters. The affair has also directly fed one of Donald Trump’s favorite accusations against Clinton: that she’s “crooked.”

What remains true is that, though Petraeus’ and Libby’s careers were ruined, Clinton may go on to hold the nation’s highest office. Comey called her decision “extremely careless,” which it was. What the federal investigation has not shown, however, is that Clinton’s actions were cut from the same cloth as the deliberate leakers who preceded her.

Batchelor Warnke is an intern in The Times’ Opinion section. Follow her on Twitter @velvetmelvis.

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