The U.S. Justice Department has asked a judge to make public the warrant that authorized an FBI search on Aug. 8 after reports an unknown amount of White House records may have been improperly stored at former president Donald Trump’s estate in Florida.
No former U.S. president has ever been criminally charged with mishandling records, and in the two most high-profile cases in recent years adjudicated in the courts, the consequences did not involve prison time.
There are multiple statutes carrying significant penalties for the illegal possession of classified material, and a range of other individuals ranging from intelligence analysts, federal law enforcement agents and federal contractors have paid a high price for their wrongdoing.
Defendants have been prosecuted for offences related to the three classifications of documents, in ascending order: confidential, secret and top secret. Top secret classification, according to the Justice Department, represents the type of information where “unauthorized disclosure reasonably could be expected to cause exceptionally grave damage to the national security of the United States.”
Some cases appear to be characterized by extreme carelessness without intent to share classified material. The motivations for possessing the material have been hard to prove in other incidents.
WATCH l Warrant could provide insight, if not granular detail: legal expert:
U.S. law expert says unsealed warrant could offer insight into FBI search at Mar-a-Lago
Even a general list of material taken could provide insight into why a warrant was issued to search former president Donald Trump’s Mar-a-Lago residence, says Massachusetts law professor Lawrence Douglas.
In one case, prosecutors believe an FBI employee in the Midwest had been in possession of secret material for nearly 13 years, while in another a colleague spotted secret materials while attending a dinner party hosted by a U.S. Department of Defence employee. In still another, a naval reservist came forward to his superiors to admit the mishandling.
Here’s a look at some of the most notable court cases in recent times:
A mess, generally
Former CIA director David Petraeus pleaded guilty in 2015 to giving away classified information and was sentenced to two years of probation and ordered to pay a $100,000 US fine.
The retired four-star Army general who led U.S. forces in Iraq and Afghanistan gave his mistress Paula Broadwell eight binders of classified material he had improperly kept. Among the secret information were the names of covert operatives, the Western coalition war strategy, and notes about Petraeus’s discussions with U.S. President Barack Obama and the National Security Council, prosecutors said.
Resigning from the CIA in 2012 after the affair was revealed, Petraeus had signed a form falsely attesting he had no classified material.
Broadwell’s biography All In: The Education of David Petraeus, came out in 2012, before the affair was exposed.
While many pundits felt Petraeus received a lenient sentence, the case was on the mind of Trump when FBI Director James Comey announced in July 2016 that while Hillary Clinton had been “extremely careless” while handling emails as secretary of state, she would not be indicted.
“The system is rigged. General Petraeus got in trouble for far less,” Trump tweeted, in an arguable contention.
Socked away, scooped up
A decade earlier, Samuel (Sandy) Berger, a U.S. national security adviser to former President Bill Clinton, pleaded guilty in 2005 to unauthorized removal and retention of classified material from the National Archives.
Long after leaving the White House, Berger visited the National Archives in 2002 and 2003, looking for intelligence documents related to extremist activity in the years before the 9/11 attacks. After one visit, an archives staffer emailed a colleague to say he may have seen what looked like paper sticking out from underneath Berger’s pant leg near the ankle.
News camera operators on Nov. 13, 2012 film an FBI agent carrying a computer after a search of the Charlotte, N.C., home of the author who engaged in an affair with former CIA director David Petraeus. (Streeter Lecka/Getty Images)
A National Archives inspector general’s report later revealed Berger hid some documents under a construction trailer. They weren’t there when he went back, with Berger telling investigators he “tried to find the trash collector but had no luck.”
Berger was ultimately fined more than $50,000, given a sentence of 100 hours community service and two years’ probation, relinquishing his law licence. Berger, who died in 2015, said he was trying to reacquaint himself with information he would need to know for testimony before the 9/11 commission.
Not your typical hoarding
Some cases stem from intense federal investigation as was the case in 2016 after a mysterious internet group calling itself the Shadow Brokers surfaced online to advertise the sale of hacking tools stolen from the National Security Agency (NSA).
As a result of the crisis, investigators discovered a theft of material that prosecutors called “breathtaking” in its scope. Former NSA contractor Harold Martin was never connected to the Shadow Brokers, but was sentenced in 2019 to nine years in prison.
Martin had in his possession nearly two decades’ worth of top secret email chains, handwritten notes describing the NSA’s classified computer infrastructure, and descriptions of classified technical operations.
Defence attorneys said he dealt with mental illness and was a hoarder, but a U.S. attorney scoffed at that explanation.
“It isn’t like wandering into someone’s house and finding stacks of newspapers or library books or junk,” Robert Hur told the Associated Press
CIA sources compromised
The most serious case likely had deadly consequences. Jerry Chun Shing Lee, a former CIA case agent, was sentenced to 19 years in prison in late 2019.
Prosecutors said Chinese intelligence officers gave Lee $840,000 over a three-year period beginning in 2010, and that Lee likely gave them information he had accrued from a 13-year career as a CIA case officer that began in 1994.
Sandy Berger, who was President Clinton’s top national security aide, leaves the U.S. District Court House in Washington on April 1, 2005. Berger was found to have taken documents directly from the National Archives. (Kevin Wolf/The Associated Press)
After the CIA, Lee ran a tobacco company in Hong Kong with an associate with ties to Chinese intelligence. Prosecutors said Lee was never able to come up with a good explanation for where and why he came into that much money.
Lee, a naturalized U.S. citizen, was arrested on American soil. He had information classified as secret in a notebook and thumb drive, including the names of eight CIA clandestine human sources he had recruited and handled as a case agent.
Beginning in 2010, according to subsequent reports from the New York Times and Foreign Policy, China is believed to have killed or made to disappear a number a intelligence assets there, although a host of failures related to U.S. government information handling and systems have also been cited.
Kidnapping, then Russia?
In 2021, Elizabeth Jo Shirley was sentenced to eight years in prison for unlawfully retaining documents containing national defence information.
Shirley had earlier admitted to unlawfully retaining an NSA document containing information classified at the top secret and secret level relating to national defence that outlines intelligence information regarding a foreign government’s military and political issues.
The actions of Shirley, who had held a range of positions both across U.S. government and with federal defence contractors, were entangled with a domestic abduction case, authorities said. Prosecutors alleged she kidnapped her daughter to Mexico and drafted letters to the government of Russia — a country likely to not easily extradite an American, as seen in the case of Edward Snowden, who resides there amid espionage charges he faces in the U.S. for revealing classified information.
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