The Army could force retired Gen. David Petraeus back into uniform to face charges if ongoing investigations turn up evidence of an earlier timeline for the start of his affair with Paula Broadwell, military law experts said.
“As a regular officer, you’re subject to court-martial jurisdiction forever,” said Michael Noone, a Catholic University law professor and a retired Air Force colonel and judge advocate general.
“Theoretically, Petraeus would be subject to court-martial for any offenses discovered after he leaves service,” and could be called back to duty to answer for them, Noone said, although he pointed out the prospect was unlikely.
The most obvious offense that Petraeus could face would be adultery, a violation of Article 134 of the Uniform Code of Military Justice, but adultery charges in the military are rare and rarer still as stand-alone offenses, said Phil Cave, a long-time Washington lawyer who specializes in defending court-martial cases.
Petraeus has been as careful in admitting to the affair as he was careless in becoming involved with Broadwell, a West Point graduate and lieutenant colonel in the Army reserves.
Through former military aides, Petraeus has put out word that the sexual relationship with Broadwell did not begin until after he retired from active duty and became CIA director in September 2011, although she was closely involved with him for several years while working on her book “All In: The Education of David Petraeus.”
And even if proof emerged of a sexual relationship before Petraeus retired, the military would be unlikely to pursue it. “The chances are low, if any, of that happening,” Cave said. “I’m not convinced that would change things dramatically.”
“But if evidence of abuse of status or the misuse of government funds” to further the relationship with Broadwell came to light, “that would be an extraordinary change in the landscape,” Cave said.
The FBI investigation of the affair is still open. It began with a complaint from Florida socialite Jill Kelley to an FBI friend about allegedly threatening emails she was receiving. The emails were eventually traced to Broadwell, who apparently saw Kelley as a rival.
The email trail then led to Marine Gen. John Allen, who succeeded Petraeus as overall commander in Afghanistan. Allen had exchanged a large volume of email with Kelley.
Allen’s nomination as head of U.S. European Command has now been put on hold while the Defense Department’s Inspector General investigates the Allen-Kelley emails, which have been described by a defense official as possibly “inappropriate and flirtatious.”
The Inspector General’s office of the CIA is also investigating whether Petraeus may have disclosed classified information to Broadwell during their involvement.
Despite the ongoing investigations, the consensus of several military law experts was that there was little appetite to pursue a case against Petraeus.
“Sure, in theory he could be brought back into the military, but that’s not going to happen,” said Gary Solis, a Marine Vietnam veteran and a former JAG who is now a professor at the Georgetown University Law Center. “Nobody is going to charge David Petraeus.”