I hear Energizer Corporation is in discussions with Sandy Berger’s attorneys regarding his replacing the bunny as the mascot in its ad campaigns. It makes sense considering that the Sandy Berger Documents Odyssey just keeps going, and going, and going. . .
Today’s drip from the scandal’s faucet comes to us courtesy of the Washington Post and more evidence that the FBI was clueless about the true nature of Berger’s crimes as well as the startling admission by a couple of staff members of the 9/11 Commission that not only weren’t they told of the extent of Berger’s whitewashing expeditions to the National Archives but that they would have been more than eager to ask him under oath exactly what documents he destroyed.
It turns out, that despite what we were told initially about Berger’s crimes not involving the destruction of original, classified documents that in fact, the Archives have no idea how many documents Berger made off with.:
Brachfeld said he was worried that during four visits in 2002 and 2003, Berger had the opportunity to remove more than the five documents he admitted taking. Brachfeld wanted the Justice Department to notify officials of the 9/11 Commission that Berger’s actions—in combination with a bungled Archives response—might have obstructed the commission’s review of Clinton’s terrorism policies.
The Justice Department spurned the advice, and some of Brachfeld’s colleagues at the Archives greeted his warnings with accusations of disloyalty. But more than three years later, as Brachfeld and House lawmakers have pushed new details about Berger’s actions onto the public record—such as Berger’s use of a construction site near the Archives to temporarily hide some of the classified documents—Brachfeld’s contentions have attracted fresh support…
Zelikow (Staff attorney for the 9/11 Commission. ed.) said in an interview last week that “I think all of my colleagues would have wanted to have all the information at the time that we learned from the congressional report, because that would have triggered some additional questions, including questions we could have posed to Berger under oath.”
The commission’s former general counsel, Dan Marcus, now an American University law professor, separately expressed surprise at how little the Justice Department told the commission about Berger and said it was “a little unnerving” to learn from the congressional report exactly what Berger reviewed at the Archives and what he admitted to the FBI —including that he removed and cut up three copies of a classified memo.
“If he took papers out, these were unique records, and highly, highly classified. Had a document not been produced, who would have known?” Brachfeld said in an interview. “I thought [the 9/11 Commission] should know, in current time—in judging Sandy Berger as a witness . . . that there was a risk they did not get the full production of records.”
And to give you an idea of the outright stupidity of the Justice Department in this matter, it appears that rather than, you know, like, investigate Berger’s theft, they relied on what Berger was telling them when they told the Commission that Berger only took 5 documents:
In a letter to House lawmakers last week, Acting Assistant Attorney General Richard A. Hertling did not address the issue of why the department told the commission so little. But Hertling wrote that in numerous interviews, “neither Mr. Berger nor any other witness provided the Department with evidence that Mr. Berger had taken any documents beyond the five.”
Hertling said the department “stands by its investigation” and believes the guilty plea it negotiated with Berger on April 1, 2005, “was the best one possible in light of the available evidence.” He also criticized the Archives staff for failing at the time to confront Berger, search him or contact security officials, saying this failure “had to be weighed against the evidence.”
The “available evidence” was evidently supplied by the perp’s statements about how many documents he stole not on any evidence gleaned from a thorough investigation. But we can’t simply blame the Justice Department in this matter. Clearly, the custodians of our treasured national records must bear a large share of the blame:
In the Hertling letter, the department noted obstacles in its investigation. The FBI was not advised of the case until Oct. 15, 2003, almost two weeks after Smith concluded that Berger had stolen documents. By then, Archives General Counsel Gary Stern had called Berger and former Clinton lawyer Bruce Lindsey about it and obtained two documents from Berger, who surrendered them at home after first denying they were in his possession.
The letter also said that six months after beginning the probe and well after Berger testified to the commission, “the Department had not yet asked Mr. Berger any questions, as he had not yet agreed to an interview.” Berger’s lawyer, Lanny Breuer, said Berger first spoke to the FBI in March 2005 and was interviewed a second time in July of that year, after his April 1, 2005, guilty plea to unauthorized removal and retention of classified material.
Gary Stern, Archives General Counsel, was a Senior Advisor to the Secretary of Energy during the Clinton Administration. In case you might miss the connection, about 70% of the Department of Energy’s budget has to do with the care and feeding of nuclear weapons. I will bet you a dollar to Navy Beans that Berger and Stern were good chums and that Stern wanted to make sure Berger had all his legal ducks in a row before siccing the Feds on him.
Of course, they didn’t talk to Berger for 5 whole months. And when they did, they swallowed his story about not stealing any originals and only taking 5 documents hook, line, and sinker. Not because they’re stupid. But because they didn’t want to know. These kinds of cases are huge embarrassments after all and the less anyone knew about it, the better.
This didn’t sit well with Archives IG Paul Brachfeld who agitated for a deeper investigation as well as informing the 9/11 Commission that Berger should be questioned about what he actually did:
Brachfeld pressed Justice Department officials on six occasions in 2004 to make a fuller statement to the commission about Berger’s actions, to no avail. He also contacted Justice Department Inspector General Glenn A. Fine, who organized an April 2004 meeting between Brachfeld and Justice officials that convinced him that “these issues had to go before the 9/11 Commission,” according to two people present.
But in a notification to the commission the following month, the department did not mention that Berger had cut up documents, that he reviewed uncatalogued originals or that Brachfeld worried that Berger’s theft was greater.
Even more jaw dropping is that the staff at the Archives is evidently miffed that Brachfeld won’t drop the matter like a good little bureaucrat:
Some of Brachfeld’s colleagues have not been cheered by his new congressional support. An Archives lawyer, who Brachfeld said was one of those involved in the Berger case, this month sent Brachfeld an e-mail accusing him of poor judgment and stating that “I don’t think it comes as a great surprise if I were to venture the opinion that senior management at this agency have serious problems with the manner in which your office conducted itself . . . during the Berger investigation.”
On Friday, Archivist Allen Weinstein assured Brachfeld in writing, however, that this criticism did “not reflect either my views or the views of the overwhelming majority of NARA employees.”
In short, after failing to give adequate security to the documents themselves, violating procedure by allowing Berger to access the documents beyond a secure area, allowing him to take the documents back and forth to the bathroom, not bringing the FBI in on the case immediately, lying to the 9/11 Commission about the extent of Berger’s whitewashing of history, contacting Berger’s lawyer and Berger himself before reporting the incident to authorities, and being unable to say just what documents Berger might have made off with, the lower echelon of employees at the Archives who bear responsibility for all of the above are mad at management because they want to get to the bottom of what happened?
This case gets weirder all the time. And you know what? I’ll bet that there wasn’t much in those documents that reflected badly on Clinton at all. But the former President, so obsessed with his place in history and how historians will view his presidency and so vainglorious about his own personal standing, that anything that would reflect badly on his leadership needed to be expunged – especially since historians would be paying close attention to the 9/11 Commission’s final report.
They better find a way to get around double jeopardy as it relates to this crime or what happened at the National Archives when Sandy Berger destroyed a part of American history will never be known.
And in a very large way, that is a much bigger crime than Berger committed by stealing the documents in the first place.
Exit question: Whatâ€™s the deal? Moran thinks the DOJ is embarrassed by the incident and just wants it to go away, but why? No one would fault them for trusting an ex-cabinet member to behave ethically, even one with the taint of Clinton upon him. I think theyâ€™re more worried about sensitive national security information coming to light, either in the form of documents that Berger has or stuff he knows from his time in office. You donâ€™t bring down the hammer on a former NSA, especially one with no compunctions about shenanigans involving state secrets.
Actually, I think they’re embarrassed because they botched the “investigation” from the get go. When two weeks pass between the crime and the reporting of said crime and then months go by before getting the perp to agree to talk, it might be well that no one ask too many questions about what actually transpired. If the IG for the Archives hadn’t been pushing this story over the last few months, we would never have been any the wiser. Those Republican House members who were asking for some explanations were doing so because Brachfeld was frustrated about what he saw as a cop out by Justice in not informing the 9/11 Commission about the extent of Berger’s potential crimes. It was his report that started the House GOP members asking questions back in October (the report was released in December).
Tom Bevan has the jawdropper of the day from Berger’s attorney quoted in the WaPo article:
You have to read all the way to the end of this Washington Post article on the Justice Department’s willful neglect in handling the Sandy Berger case before being confronted with this astonishing quote by Berger’s attorney, Lanny Breuer:
“It never ceases to amaze me how the most trivial things can be politicized. It is the height of unfairness . . . for this poor guy, who clearly made a mistake,” Breuer said.
Stealing highly classified documents from the National Archives is “trivial?” You’ve got to be kidding.
Indeed. And more:
Poor Sandy Berger. He had to pay a $50,000 fine and pick up some garbage on the side of the road in Virginia. Meanwhile, Scooter Libby had to face trial and might go to jail for, at worst, telling “a dumb lie” (to use the words of prosecutor Patrick Fitzgerald) about a non-crime.
Just as long as we’ve got our priorities right…