In Petraeus Scandal, Information-Sharing Concerns Abound

, The National Law Journal

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The political fallout from the resignation of Central Intelligence Agency director David Petraeus has reached Capitol Hill, where scrutiny of Attorney General Eric Holder Jr.'s actions will prompt discussion about when he should share investigative information about high-level administration officials, former DOJ and White House officials say. 

Members of congressional intelligence committees returned to a lame-duck session this week concerned about how little they knew about the months-long investigation that ultimately revealed Petraeus's affair with his biographer, Paula Broadwell. The investigation will likely come up during two closed-door hearings on November 15 with the House and Senate intelligence committees, where Petraeus had been scheduled to testify, before he resigned, about the terror attacks in Benghazi.

But there definitely will be more Congressional oversight inquiries into how the Federal Bureau of Investigation and Holder handled the inquiry that was made public on Friday when Petraeus resigned, said Robert Raben, a former Hill counsel and assistant attorney general who founded The Raben Group.

This is Holder's and the Justice Department's first experience during the Obama administration with an investigation of a high-level cabinet officer or undersecretary, a situation that can cause some wrestling and posturing between the branches of government over information-sharing protocols, Raben said.

That will also prompt congressional discussions about the 2007 memorandum penned by then-attorney general Michael Mukasey, of DOJ policy on divulging investigative information to the White House and Congress. Those rules are also "relatively untrammeled," Raben said.

The Mukasey memo, issued in the wake of the scandal over the firings of U.S. attorneys, reminded employees that contacts with the White House and Congress about pending criminal matters were not allowed, The Wall Street Journal reported.

"I think what members will be wrangling with…is the Mukasey rules and whether or not they work," Raben said. "Then you get to the politics, and who knew what when."

In the Petraeus scandal, Holder knew that Petraeus had been linked to an FBI investigation as far back as late summer, but President Barack Obama learned only learned of the affair Thursday morning, after the presidential election, according to the Wall Street Journal.

A number of congressional intelligence leaders, including Senate Select Committee on Intelligence chairwoman Dianne Feinstein (D-Calif.), fumed in the media because they did not hear about the probe until Obama accepted Petraeus' resignation. She has vowed to investigate who made that decision.

Former Attorney General Alberto Gonzales, now of counsel at Waller Lansden Dortch & Davis and a professor at Belmont University College of Law, both in Nashville, said he is more interested in discussions that may or may not have occurred between Holder and the White House.

If the FBI had reached a preliminary conclusion that the director of the CIA was having an affair, "That's the kind of information I would have advised the president about," Gonzales said. "I would have been clear that it was still preliminary."

"Also, if I'm the president, I'm having conversations with the CIA director about the most sensitive matters about the country," Gonzales said. Being aware of the investigation "may affect how you interact with the director of the CIA, and that's a very big thing."

Two DOJ spokeswomen did not respond to a request for comment.

The details of the investigation are still emerging and are not at all clear, but have taken some thrilling twists and turns.

The investigation started several months ago with a complaint from Jill Kelley, who is a friend of Petraeus. The woman complained to the FBI about "harassing" e-mails sent by Broadwell, The New York Times reported.

Agents following up on the complaint discovered exchanges between Broadwell and Petraeus that revealed that they were having an affair, and also found Broadwell possessed classified information, the Times reported. The agents decided there had been no major breach of security by the time Holder was first notified of Patraeus' involvement.

The federal agent who started the case was blocked from the case on concerns he was personally involved, and then he continued to press the matter, relaying his concerns to Washington state Republican congressman David Reichert, because he was concerned senior FBI officials were going to sweep the matter under the rug, The Wall Street Journal reports. The agent allegedly sent shirtless photos of himself to a woman involved in the case well prior to the investigation.

A day after the November 6 election, intelligence officials presented their findings to the White House. Petraeus met with White House officials last Thursday and announced his resignation the following day, the Wall Street Journal reported.

Since then, the FBI has uncovered between 20,000 and 30,000 pages of documents—most of them e-mails—that contain "potentially inappropriate" communication between Gen. John R. Allen, the commander of U.S. and NATO troops in Afghanistan, and Kelley, The Washington Post reports.
 

Todd Ruger is a reporter for The National Law Journal, a Legal affiliate based in New York.

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