Last month, at Justice Department headquarters in Washington, FBI agent Adam Malone underwent hours of questioning in a case so contentious his deposition was halted in a disagreement among the attorneys present.
The case arises from the e-mail investigation that revealed the affair behind the resignation of CIA Director David Petraeus. The plaintiffs are Jill Kelley, a former honorary consul who became known to the world as the Bayshore Boulevard socialite and friend of top military leaders, along with her husband Scott, a surgical oncologist.
The allegations are that someone in the government violated the couple’s privacy rights when Jill Kelley’s name was leaked to the media as the target of what the Kelleys consider harassing and threatening emails. The Kelleys want to know who did it — and, in a key requirement for a privacy complaint, whether it was done on purpose and why.
Already, the case file includes depositions from a former defense secretary and three FBI agents along with subpoenas for the retired general who ran the war in Afghanistan and nine reporters who have covered the case.
Most of the original complaint has been thrown out. In the latest development, attorneys are arguing over how much information government sources have to reveal to address the one element remaining.
That’s where Malone comes in. A supervisory special agent with the FBI, he was asked questions the Kelleys’ attorney feels will help explain why Jill Kelley’s name was leaked.
But the government argues that during that Sept. 2 deposition, Malone was subjected to queries designed to “annoy, harass and embarrass” him and the agency, according to the federal departments named as defendants.
The government — citing leaks to the media about depositions in a case that is based on media leaks — is also arguing that some questions being asked have been “designed to promote an ulterior purpose of advancing plaintiff’s public relations goals.” The government insinuated it was the Kelleys or their representatives who provided documents to the media.
The deposition has been put on hold and the government filed a motion to narrow the scope of future questioning.
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Jill Kelley’s name was leaked to the media Nov. 11, 2012, just days after Petraeus resigned as CIA director. He stepped down in the wake of revelations he was having an affair with Paula Broadwell, his biographer, who was an Army Reserve major at the time.
The affair was discovered after Broadwell sent the emails to Scott Kelley’s email account. The Kelleys had hosted parties for military leaders like Petraeus, who had been head of U.S. Central Command in Tampa.
At the the Malone deposition, Guy Neal, a partner with the Sidley Austin firm representing the Kelleys, expressed frustration with frequent objections and the government’s refusal to allow the FBI agent to answer questions about when the agency realized Broadwell was the source of the emails.
“I’m being met with obstruction” by the government, Neal said.
Alan Raul, the Kelley’s lead attorney, was scheduled to file a response Thursday but it was not immediately available.
A question arising from the latest developments in the case: Do the Kelleys have a right to delve deeper into the investigation or are they fishing?
Two Tampa lawyers with experience in federal court, asked by the Tribune to look over documents in the case, came up with different conclusions.
“The issue concerning willfulness is exactly the reason the they Kelly’s need the discovery they have requested and the depositions they seek to take,” says Charlie Rose, professor of excellence in trial advocacy at Stetson University College of Law. “You cannot identify willfulness from the leak itself; it is a question of intent that can only be answered through the circumstantial evidence of other communications, or through the testimony of witnesses.”
Tom Scarritt, a Tampa lawyer who practices in federal court and who once served as a clerk to a federal judge, has a different take.
“I believe that it appears to be a fishing expedition,” Scarritt says. “They are asking a lot of questions that are interesting to the public, but that do not have anything to do with the wrongful disclosure to the press.”
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Back in the summer of 2012, when few people knew Jill Kelley’s name beyond the tight circle of military officers, foreign emissaries connected to MacDill Air Force Base, and Tampa politicians like Bob Buckhorn, Agent Malone was leading the investigation into the emails sent to Scott Kelley.
It produced no charges against Broadwell and she was cleared of wrongdoing in the cyberstalking case. But it did expose her affair with Petraeus. Broadwell declined comment for this story.
During Malone’s deposition, which both Kelleys attended, attorney Neal asked about his role in the investigation. About halfway through the 4-hour, 40-minute questioning session, Neal began seeking details about when the FBI realized Broadwell was the source of the emails.
They were sent anonymously from an account with the user names kelleypatrol and Tampa Angel.
One example: When did Malone determine some of the emails originated from the Thayer Hotel, on the grounds of the U.S. Military Academy at West Point?
Lisa Marcus, Malone’s lawyer, objected, asking what the question had to do with the privacy act complaint.
Neal later asked about emails in which Jill Kelley was named, which were cited later in news reports, often attributed to anonymous sources.
“Who else reviewed the emails?” Neal asked, following up with questions about why they were reviewed and how they were disseminated within the FBI “and perhaps other agencies and departments of the U.S. government.”
Marcus again objected and directed Malone not to answer. She lodged other, similar objections, and Neal concluded the deposition.
It is now up to Judge Amy Berman Jackson to decide how to proceed on the Malone deposition. Meantime, depositions scheduled by reporters who identified their sources as law enforcement officials have been suspended pending Jackson’s ruling. Depositions by reporters who identified their sources as military officials continued.
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During Malone’s deposition, his attorney noted that previous questioning of an FBI agent, Fred Humphries, resulted in leaks to the media of redacted copies of his testimony. The testimony, according to Politico, included statements that Broadwell “had access to all of the other emails” belonging to Petraeus.
In addition to the FBI agents, depositions have been given in the case by former Defense Secretary Leon Panetta, former Pentagon chief of staff Jeremey Bash and former Pentagon and CIA spokesman George Little.
The government argued, without citing any specific deposition, that leaks resulted in an Associated Press story that read, “Pentagon officials acknowledged in depositions that they developed a ‘press plan’ with members of an unspecified delegation from the White House in November 2012 to tell reporters that emails between Allen and Jill Kelley were ‘potentially inappropriate’ and to suggest that the two had a sexual relationship.”
Allen is John Allen, a friend of the Kelleys from his time in Tampa and the retired Marine general who once led U.S. military efforts in Afghanistan and now serves as an advisor on the fight against Islamic State.
In its motion to limit the scope of questioning, the government denied that claim.
The reporters were subpoenaed after Judge Alexander ruled the Kelleys first have to ask them the source of their leaks. Her ruling came in response to the Kelleys’ subpoena of Homeland Security Secretary Jeh Johnson — the Pentagon’s chief counsel at the time the Petraeus scandal unfolded.
The Kelleys suspect Johnson is a source of the leak of Jill Kelley’s name, but Alexander ruled the reporters would have to talk before Johnson can be compelled to.
Allen also is set to undergo questioning in the case. He was the subject of a Pentagon investigation into his email correspondence with Jill Kelley. He was cleared of any wrongdoing, but opted not to seek a new position as head of U.S. forces in Europe and instead retired.
The leak of Jill Kelley’s name took place sometime after emails she exchanged with Allen were turned over to Jeh Johnson by the FBI.
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Attorney Rose sees reasons for Judge Alexander to allow a wider range of questioning of Malone. Attorney Scarritt had a different take.
“We haven’t seen anything to date to show that the Kelleys or their law firm are acting in an unethical fashion,” Rose says. “Tough? Absolutely. That is what you do for a client. When the defense side of the bar trots out the shibboleth of professionalism, sometimes it is absolutely dead-on correct. And sometimes they are afraid of what might be dislodged. We don’t know which it is yet.”
Scarritt says that from his reading of the government’s motion, the Kelleys “are still trying to make their case relating to the parts of this that were dismissed.”
The case, originally filed in June 2013, has been whittled down from a number of allegations to a single count of violation of the Privacy Act.
“They have a lot of discovery that has to do with sensational details,” Scarritt said, “like asking Humphries in his deposition about what he thought election cycle politics had to do with the course of the cyberstalking investigation. They asked him if heard about lewd comments made by unnamed FBI agents. None of that has anything to do with wrongful disclosure to the media, but a lot to do with sensationalism.”
Rose also scoffed at the contention that Agent Malone was being annoyed, harassed and embarrassed.
“Think about it,” Rose says. “You are an FBI agent. You deal with crime at a very real level that you are ready, when necessary, to shoot someone, to place yourself in harm’s way. Are you really telling me that when you are talking to a laywer it is so intimidating and embarrassing that you can’t deal with it? If an FBI agent can’t handle being deposed, and FBI agent ought not to be an FBI agent.”
Scarritt said he doesn’t see harassment so much as he does “completely irrelevant and inappropriate questions” from the Kelleys’ legal team.
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