WASHINGTON — FBI Director Kash Patel was not part of a Signal chat in which other Trump administration national security officials discussed detailed attack plans, but that didn’t spare him from being questioned by lawmakers this week about whether the nation’s premier law enforcement agency would investigate.
Patel made no such commitments during the course of two days of Senate and House hearings. Instead, he testified that he had not personally reviewed the text messages that were inadvertently shared with the editor-in-chief for The Atlantic who was mistakenly included on an unclassified Signal chat.
That Patel would be grilled on what the FBI might do was hardly surprising.
Even as President Donald Trump insisted “it’s not really an FBI thing,” the reality is that the FBI and Justice Department for decades have been responsible for enforcing Espionage Act statutes governing the mishandling — whether intentional or negligent — of national defense information like the kind shared on Signal, a publicly available app that provides encrypted communications but is not approved for classified information.
The Justice Department has broad discretion to open an investigation, though it remains unclear whether Attorney General Pam Bondi, who introduced Trump at a Justice Department event this month, would authorize such an inquiry. Trump administration officials insist that the details shared were not classified, though the Espionage Act technically criminalizes the mishandling of any information deemed to be closely held national defense information even if not classified.
Multiple high-profile figures have found themselves under investigation in recent years over their handling of government secrets, but the differences in the underlying facts and the outcomes make it impossible to prognosticate what might happen in this instance or whether any accountability can be expected. There’s also precedent for public officials either to avoid criminal charges or be spared meaningful punishment.
“In terms of prior investigations, there were set-out standards that the department always looked at and tried to follow when making determinations about which types of disclosures they were going to pursue,” said former Justice Department prosecutor Michael Zweiback, who has handled classified information investigations.
Those factors include the sensitivity of the information exposed and the willfulness of the conduct.
A look at just a few of the notable prior investigations:
The 2016 Democratic presidential nominee was investigated but not charged for her use of a private email server for the sake of convenience during her time as secretary of state in the Obama administration. There appear to be some parallels with the Signal chat episode.
The politically fraught criminal investigation was initiated by a 2015 referral from the intelligence agencies’ internal watchdog, which alerted the FBI to the presence of potentially hundreds of emails containing classified information on that server. Law enforcement then set out to determine whether Clinton, or her aides, had transmitted classified information on a server not meant to host such material.
The overall conclusions were something of a mixed bag.
Then-FBI Director James Comey, in a highly unusual public statement, asserted that the bureau had found evidence that Clinton was “extremely careless” in her handling of classified information but recommended against charges because he said officials could not prove that she intended to break the law or knew that the information she and her aides were communicating about was classified.
The decision was derided by Republicans who thought the Obama administration Justice Department had let a fellow Democrat off the hook. Among those critical were some of the very same participants in the Signal chat as well as Bondi, who as Florida’s attorney general spoke at the 2016 Republican National Convention and mimicked the audience chant of “Lock her up!”
Among the biggest names to actually get charged is Petraeus, the former CIA director sentenced in 2015 to two years’ probation for disclosing classified information to a biographer with whom he was having an extramarital affair.
That material consisted of eight binders of classified information that Petraeus improperly kept in his house from his time as the top military commander in Afghanistan. Among the secret details in the “black books” were the names of covert operatives, the coalition war strategy and notes about Petraeus’ discussions with President Barack Obama and the National Security Council, prosecutors have said.
Petraeus, a retired four-star Army general who led U.S. forces in Iraq and Afghanistan, wound up pleading guilty to a single misdemeanor count of unauthorized retention and removal of classified material as part of a deal with Justice Department prosecutors. Some national security experts said it smacked of a double-standard for its lenient outcome.
Comey himself would later complain about the resolution, writing in a 2018 book that he argued to the Justice Department that Petraeus should have also been charged with a felony for lying to the FBI.
“A poor person, an unknown person — say a young black Baptist minister from Richmond — would be charged with a felony and sent to jail,” he said.
A former CIA officer, Sterling was convicted of leaking to a reporter details of a secret mission to thwart Iran’s nuclear ambitions by slipping flawed nuclear blueprints to the Iranians through a Russian intermediary.
He was sentenced in 2015 to 3 1/2 years in prison, a punishment whistleblower advocates and other supporters decried as impossible to square with Petraeus’ misdemeanor guilty plea just a month earlier.
The details of the operation disclosed by Sterling were published by journalist James Risen in his 2006 book “State of War.”
Sterling was charged in 2010, but the trial was delayed for years, in part because of legal wrangling about whether Risen could be forced to testify. Ultimately, prosecutors chose not to call Risen as a witness, despite winning legal battles allowing them to do so.
