And Berger got a $50K fine for stealing classified intel?

To understand how deep the corruption is at the Department of Justice, and not just at the top, all one needs to do is compare the treatment of former Clinton National Security Advisor Sandy Berger and former President Donald Trump.

Whatever concoction the DOJ serves up to frame Trump, it will not match what Berger actually confessed to doing.

In April 2002, former President Bill Clinton designated Berger as his representative to review intelligence documents in advance of the various hearings on 9/11. As a 2007 report by the House Committee on Government Oversight and Reform made clear, Berger did not exactly welcome this assignment. The archivists told the House committee, in fact, that Berger “indicated some disgust with the burden and responsibility of conducting the document review.”

To fulfill his obligation to the Clintons, however, Berger was prepared to sacrifice his reputation and very nearly his freedom. According to the House report, Berger made four trips to the National Archives. He did so presumably to refresh his memory before testifying first to the Graham-Goss congressional committee and then to the 9/11 Commission. He made his first visit in May 2002, his last in October 2003.

During at least three of those visits, he stole and destroyed an incalculable number of documents. “The full extent of Berger’s document removal,” said the House report, “is not known and never can be known.”

According to the committee: “Had Berger seen ‘a smoking gun’ or other documents he did not want brought to an investigatory panel’s attention, he could have removed it on this visit.”

Berger’s task, I believe, was to make sure all references to the Bojinka, planes-as-bombs plot and/or TWA Flight 800 were rooted out from the Archives, especially any documents with hand-written notes that led back to Clinton.

If the House report on Berger had a hero, it was the Inspector General of the National Archives, Paul Brachfeld, a career bureaucrat. Beginning with the third of Berger’s four visits to the Archives in September 2003, when Berger was first caught in the act of stealing documents, Brachfeld tried to alert the Justice Department to the scope and seriousness of the theft.

On Jan. 14, 2004, the day Berger first testified privately before the 9/11 Commission, Brachfeld met with DOJ attorney Howard Sklamberg. Concerned that Berger had obstructed the 9/11 Commission’s work, Brachfeld wanted assurance that the commission knew of Berger’s crime and the potential ramifications of it.

He did not get it.

On March 22, 2004, two days before Berger’s public testimony, senior attorneys John Dion and Bruce Swartz informed Brachfeld the DOJ was not going to notify the commission of the Berger investigation before his appearance.

On Wednesday, March 24, 2004, Berger testified before the commission. Berger had already been apprehended stealing and destroying documents that the commission was expected to review. The commission members, at least the Republicans, did not know this.

The Republicans on the commission questioned Berger about President Clinton’s inaction after the bombing of the USS Cole and other terrorist attacks. In a dazzling display of political moxie, Berger cited the contrived TWA 800 narrative to make their inaction seem virtuous. “We thought TWA 800 was terrorism,” said Berger. “It was not terrorism. People actually -- dozens of people saw the missile strike TWA 800 as it went up over Long Island.”

At this point, Commissioner John Lehman interjected, “Yes, but you just told us . . . . “ Berger snapped back, “Preliminary judgments, I have come to learn, are not the same as judgments.” No, it wasn’t terrorism that prompted the cover-up. It was a U.S. Navy misfire, but that is a story for another day.

While the commission hearing moved on, its best story lines suppressed or ignored, the National Archives’s Brachfeld kept prodding Justice. On April 6, 2004, two weeks after Berger’s appearance before the 9/11 Commission, he called DOJ’s Inspector General Glenn Fine and again expressed his concern that the commissioners remained unaware of Berger’s theft.

Fine organized a meeting for April 9. Brachfeld reported to those gathered: “Berger knowingly removed documents and therefore, may have purposely impeded the 9/11 investigation.” Some of those documents, Brachfeld added, might have been “original.” For all of his efforts, Brachfeld was unable to persuade Justice to inform the 9/11 Commission of Berger’s actions. The commissioners remained in the dark until July 19, 2004, three days before the 9/11 Commission released its final report, too late for any significant amendment.

At the time this story broke in July 2004, Berger was serving as a campaign advisor to Sen. John Kerry. ''Last year, when I was in the archives reviewing documents, I made an honest mistake,” he told reporters.  His attorney Lanny Breuer called the removal of these documents an “accident” and shifted the blame to the Bush White House for using the revelation as a campaign ploy.  A year later, when Berger pled guilty, the New York Times wrote off the theft and the surrounding hoopla as “a brief stir” in the campaign season.

In truth, there was nothing honest or accidental about what Berger had done. Among his more flagrant acts of criminal mischief, Berger swiped some highly classified documents, and then, during a break, stashed them under a trailer at a construction site. He retrieved them at the end of the day and admittedly used scissors to cut the documents into little pieces before throwing them away. These repeated thefts should have caused a whole lot more than a brief stir.

“His motives in taking the documents remain something of a mystery,” reported the Times after Berger pled guilty. How different history would have been had the Washington Post contented itself with writing, “The motives of the Watergate burglars remain something of a mystery.”

Finally, on Friday April 1, 2005, the Bush Department of Justice announced its plea deal with Berger, an embarrassingly lenient one at that—a $10,000 fine and the loss of his top-level security clearance for three years. That was it. Berger repeatedly stole and destroyed classified documents, lied about it to authorities, and received a much lighter punishment than the protestors who took souvenirs from the Capitol on January 6.

In September 2005, a federal judge upped the ante on Berger’s treachery but not by enough to hurt. Judge Deborah Robinson raised the fine to $50,000—chump change for the wealthy attorney—added two years of probation, and threw in one hundred hours of community service. Robinson said she took into account Berger's "otherwise exemplary record" and "sincere expression of remorse" in her sentence.

Berger was remorseful only about getting caught. "I let considerations of personal convenience override clear rules of handling classified material," he lied on the very day of his sentencing. There was nothing convenient about shredding documents and nothing exemplary about the reasons he had to do so. As I watched these events unfold, I presumed the Bush DOJ went soft on Berger to honor some unwritten pact among presidents to protect their predecessors’ national security secrets.

On closer inspection, however, it seems that the Bush White House lacked control of its own Justice Department. For the record, Dion, Swartz, Sklamberg, and Fine were all holdovers from the Clinton administration. As far as I could tell, Fine, Swartz and Sklamberg have only contributed to Democrat party candidates in federal races and Dion has no record of federal contributions. As I mentioned, the rot runs deep.

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Image: Official portrait (cropped), National Archives, public domain

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