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C. Eugene Emery Jr.
By C. Eugene Emery Jr. October 18, 2016

FBI director James Comey says Donald Trump has it flipped; Petraeus case was worse than Clinton's

Donald Trump has declared repeatedly that Hillary Clinton should be imprisoned over her email. Emails on her unsecured personal email server were found to have contained classified information despite her repeated insistence that all the material was unclassified.

His evidence: other public officials, including David Petraeus, a former CIA director and a leading general in Iraq and Afghanistan, have been punished for far less.

During a West Palm Beach, Fla., rally Oct. 13, Trump mentioned FBI Director James Comey, who decided that Clinton's actions did not rise to the level of prosecution. Trump said that Comey "let her off the hook while other lives, including General Petraeus and many others, have been destroyed for doing far, far less. This is a conspiracy against you the American people and we cannot let this happen or continue."

Trump has made similar comments before, which we’ve looked at in another report. But this time there is more information publicly available about the information practices of both Petreaus and Clinton. ​So we decided to compare the two cases for the Truth-O-Meter.

We're relying on Comey's statements because they were made under oath before two congressional committees, and he is one of the few people familiar with the circumstances and the secrets involved in both cases who is able to speak on the record.

Comey’s initial testimony

Petraeus pled guilty in 2015 to a misdemeanor charge of mishandling confidential materials. He was fined $100,000 and given two years probation. He had given his mistress, Paula Broadwell, access to eight notebooks with top-secret and code information. She had made copies of over 300 documents marked "secret."

In addition, Petraeus lied to FBI agents investigating the case.

In Clinton's case, the FBI found 110 emails with classified information on her server, eight of which were designated top secret. Comey, in a July 5 news conference, said there was no evidence of Clinton or her staff intending to violate the law. But he also said Clinton should have known that her handling of the emails was inappropriate, and that her behavior was "extremely reckless" because outsiders could hack her server.

The FBI director was asked about the Clinton-Petraeus comparison during his July 7 appearance before the House Oversight and Government Reform Committee.

"Do you agree with the claim that General Petraeus, and I quote, 'Got in trouble for far less,' end of quote? Do you agree with that statement?" asked Rep. Elijah Cummings, D-MD.

"No, it's the reverse," the FBI director said.

Comey cited the Petraeus case as one that "illustrates perfectly the kind of cases the Department of Justice is willing to prosecute. Even there, they prosecuted him for a misdemeanor.

"In that case, you had vast quantities of highly classified information, including special sensitive compartmented information. That's the reference to code words. (A) vast quantity of it, not only shared with someone without authority to have it, but we found it in a search warrant hidden under the insulation in his attic, and then he lied to us about it during the investigation," Comey said. (Later in the hearing, Comey said his staff had corrected him and the notebooks were found in Petraeus' desk, not his attic.)

"So you have obstruction of justice, you have intentional misconduct and a vast quantity of information," Comey said. "He admitted he knew that was the wrong thing to do. That is a perfect illustration of the kind of cases that get prosecuted. In my mind, it illustrates importantly the distinction to this (Clinton) case."

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"And General Petraeus did not admit to these facts when the FBI investigators first interviewed him, did he?" Cummings asked.

"No," Comey said, "he lied about it."

Comey's subsequent testimony

Eighty three days later, Comey was called before the House Judiciary Committee where Republicans tried to get him to change his mind about prosecuting Clinton, and Blake Farenthold, R-Tex., brought up the matter again.

Farenthold: "How do you respond to people who are saying that this is not how (the) average American would be treated. This is only how Hillary Clinton would be treated?"

Comey: "When people tell you that others have been treated differently, demand from a trustworthy source the details of those cases because — I'm a very aggressive investigator, I was a very aggressive prosecutor — I have gone back through 40 years of cases, and I'm telling you under oath that to prosecute on these facts would be a double standard, because Jane and Joe Smith would not be prosecuted on these facts."

Comey said that, at the FBI, if an agent uses an unclassified email system to do business and, while on that system, talks about classified topics "you will be in big trouble with the FBI. I'm highly confident of that. I'm also confident, in fact certain, you would not be prosecuted. That's what folks tend to lump together. So I care deeply about what people think about the justice system and that it not have two standards. It does not, and this demonstrates it."

Steven Aftergood, senior research analyst at the Federation of American Scientists and an expert on national security secrecy, said, "FBI Director Comey's conclusions have unique weight because he was in a position to investigate and assess both cases in depth. The rest of us (including Trump) have to rely on what has been publicly reported or speculated upon. To me, Comey's conclusion is the end of the matter."

Finally, it's worth noting that during the Oct. 4, 2016, vice presidential debate, a variant of the theme came up as Republican Mike Pence said, "If your son or my son handled classified information the way Hillary Clinton did . . . they'd be court-martialed." Democrat Tim Kaine said, "That is absolutely false, and you know that."

The Washington Post Fact Checker, after noting that Clinton's Cabinet-level position made this an apples-to-oranges comparison, consulted about a dozen retired military lawyers and found there was no absolute answer at all.

"What we found was that it’s absolutely unclear, and is subject to prosecutorial discretion and the circumstances of each case," the Post reported. "Technically, yes, a service member can be court-martialed for behavior like Clinton’s, but it’s more likely the person would face administrative action. And the administrative action would depend on each service member’s disciplinary history, the evidence available and prosecutorial discretion."

We contacted several people at the Trump campaign noting Comey's testimony and asked for Trump's evidence. We didn't hear back.

Our ruling

Trump said Clinton was "let off the hook" for her email scandal "while other lives, including General Petraeus and many others, have been destroyed for doing far, far less."

The director of the FBI director, the man who has intimate knowledge of both cases, has repeatedly insisted under oath that the reverse is true. Petraeus’ case was worse because he intentionally passed a large amount of classified information to an unauthorized person and then lied about it to the FBI.

We rate Trump's statement False.

Browse the Truth-O-Meter

More by C. Eugene Emery Jr.

FBI director James Comey says Donald Trump has it flipped; Petraeus case was worse than Clinton's

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