Jail time and wrist slaps: U.S. secrets probes boast messy history

WASHINGTON — Donald Trump, Joe Biden and now Mike Pence join a long line of U.S. officials investigated for mishandling classified material. A look at dozens of similar cases over decades shows that the Justice Department’s decision to press charges is rarely as simple as it might seem.

With national security at stake, even the most clear cut cases can suddenly become murky when it comes time to apply consequences. Prosecutors look at factors far beyond whether the offenders simply took documents they shouldn’t have.

Who the people are, what they took, why they took it and whether they cooperated all play a role in determining how aggressively to respond, along with the risk that pursuing prosecutions could expose more state secrets at trial. Punishment has varied from prison to fines to losing security clearance to practically nothing at all beyond the public comeuppance.

A review of 31 cases over the past 20 years shows targets ranged from former Cabinet officials to low-level contractors. Records seized by federal agents in these investigations has fluctuated from five pages to the digital equivalent of 500 million pages. The secrets at stake included intelligence sources, details of U.S. missile defense programs and information about drone warfare. The records were sometimes returned intact, sometimes altered, destroyed or lost forever, and often times shared with others, from reporters to foreign adversaries.

A wild-card factor in bringing charges is whether the agency or agencies whose records were exposed is willing to let the material become completely public in the course of a trial, according to Scott Garland, a former federal prosecutor in Massachusetts and now managing director for Affiliated Monitors.

“They might say, ‘That’s our information, and under no circumstances do we want you to do a prosecution based on it,’” Garland said.

While the most severe acts, like selling secrets to foreign agents, can lead to life in prison, the most mundane cases aren’t likely to be prosecuted at all. Those are inadvertent offenses such as when a government official accidentally puts a document in her briefcase and immediately reports and returns it, according to David Kris, a former head of the Justice Department’s National Security Division, and now cofounder of Culper Partners consulting firm.

The next level of severity would be punishments that fall short of formal criminal charges, such as an administrative sanction or taking away a security clearance, Kris wrote in an email. Cases are more likely to be prosecuted when they involve “aggravating factors,” such as proof that the information was taken on purpose, shared with someone who shouldn’t have access or if the offender isn’t cooperative with an investigation, Kris said.

An official’s rank or former office — including the presidency — isn’t a shield against prosecution, but the Justice Department has been criticized for striking generous deals that avoid prison time or eschewing charges entirely in cases involving high-level officials.

Former National Security Advisor Sandy Berger was sentenced to probation, community service and a $50,000 fine after pleading guilty to taking five copies of documents from the National Archives. Former CIA Director David Petraeus was sentenced to probation and a $100,000 fine for sharing notebooks from his time in the Army command with a biographer.

Former CIA Director John Deutch lost his security clearance for having classified information on an unsecured computer at his home, but wasn’t prosecuted. In a now-infamous public announcement in the fall of 2016, then-FBI Director James Comey said that former secretary of state and Democratic presidential nominee Hillary Clinton and her colleagues had been “extremely careless” in handling classified information on a private email server, but there was no evidence of intent to violate the law; she was not charged.