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By CNN Chief Washington Correspondent Jake Tapper
President Barack Obama’s pick for Secretary of the Department Homeland Security, former Pentagon general counsel Jeh Johnson, is likely to be subpoenaed by the legal team representing Jill and Scott Kelley should their lawsuit against the Obama administration go forward, a knowledgeable source told CNN.
The Kelleys are suing the Obama administration for leaks that, they allege, damaged their reputations even though they were the original victims in the scandal involving then-CIA director David Petraeus’s affair with his biographer Paula Broadwell. The scandal began to unravel after Broadwell allegedly sent anonymous e-mails disparaging Jill Kelley to Scott Kelley, Petraeus, and four-star Marine General John Allen, and perhaps even other top military brass last year.
Sources familiar with the case say that the Kelleys' attorneys would likely ask Johnson about discussions he might have had with his boss, Defense Secretary Leon Panetta, about any privacy concerns involving the release Jill Kelley’s name to the media, and whether the characterization of Kelley's involvement was correct. The Kelleys believe that Panetta was the first government official to publicly link Kelley to the Petraeus resignation and investigation, in this New York Times story that reports “Defense Secretary Leon E. Panetta and other officials traveling with him to Australia overnight on Monday disclosed the inquiry into General Allen’s e-mails with Jill Kelley, the woman in Tampa, Fla., who was seen by Paula Broadwell, Mr. Petraeus’s lover, as a rival for his attentions.”
Concerned since the cyber-stalker knew private information about private meetings and social events involving Petraeus and Allen, the Kelleys contacted a friend of theirs who worked for the FBI, and an investigation into any alleged cyberstalking began. The investigation revealed the affair Petraeus was having with Broadwell, and shortly after Election Day 2012, Petraeus resigned.
Three days after that resignation, Jeh Johnson told the Tampa Tribune in July that the FBI's general counsel contacted him to share with him two large boxes containing thousands of e-mails between Jill Kelley and General Allen.
They were not relevant when it came to the FBI investigation, the general counsel for the FBI told his Pentagon counterpart, but he was sharing them because they seemed to him to suggest "a potentially inappropriate relationship involving a military officer."
"My strong recollection is that the e-mails that were handed over to me by the FBI were the product of subpoena, therefore they would have picked up every single communication between Mrs. Kelley and Gen. Allen," Johnson said. The Kelleys maintain that the FBI obtained the e-mails not through a subpoena, but from Jill Kelley’s account against her wishes, after she came forward to complain about being the victim of the alleged cyberstalking crime.
"They were very comprehensive and you could tell over a several year period that nothing was missing," Johnson told the Tampa Tribune’s Howard Altman. "There didn't seem to be any gaps in what we were looking at."
Johnson said he went "over the entire stack of emails," and agreed they showed "a potentially inappropriate relationship" between Kelley and Allen. Johnson said his “instinct was that the relationship did not go any further than the e-mails. There was nothing like, 'oh we had a great time last night.'"
It remains unclear what legal basis the FBI or Pentagon had to search the e-mails of a private citizen who complained about receiving threatening e-mails. The FBI, Pentagon and others in the Obama administration have declined to comment on the case, citing the ongoing litigation.
The Marine General had been nominated to head up NATO, so Johnson shared the e-mails with the Pentagon inspector general. Not only did Kelley’s name leak to the press, but administration officials began disparaging her. (One told reporters that the e-mails were "the equivalent of phone sex,” which individuals who have seen the e-mails say is not even remotely accurate.) Ultimately Allen’s nomination was put on hold. Then it was scrubbed, and Allen retired.
Allen and Kelley have denied any inappropriate relationship. Kelley swears in her lawsuit against top government agencies – under penalty of perjury – that such descriptions were inaccurate and defamatory, and that she "has not had an affair with anyone."
On Friday, Obama will announce Jeh Johnson is his nominee to head the Department of Homeland Security.
Last month, CNN reported that if the Kelleys' lawsuit were to go forward, their attorneys would seek to depose a top U.S. State Department official, Doug Frantz. Frantz was an editor at The Washington Post in 2012 when the Petraeus story broke, and was the first journalist to contact Jill and Scott Kelley to say “we have now seen some of the harassing e-mails” sent to them, allegedly by Paula Broadwell.
One of those harassing e-mails, sent anonymously, was shared with CNN by someone familiar with the case. It instructed Jill Kelley’s husband Scott to "rein her in before we shame senior military and public officials and foreign Ambassadors with whom she has contact.” It mentioned how if he did not, the situation would "otherwise become an embarrassment to all” and mentioned "such embarrassment for all, including spouses, such as info in National Headlines."
The Obama administration has moved to dismiss the lawsuit, arguing that she and her husband have failed to present any facts to prove that the FBI, Defense Department, and others in the Obama administration had violated Jill Kelley's rights.
The Justice Department dropped the cyberstalking investigation of Broadwell with no explanation, though a source close to Broadwell says the probe into how she obtained classified material is ongoing.