Beldar on Berger: If he comes back, blame politicians, not the prosecutors
By Beldar on Politics
When I read of Sandy Berger's plea bargain, I wasn't immediately offended.
I started with my usual presumption that our federal prosecutors who negotiated and approved the deal knew well the legal thresholds that they would have had to meet to obtain a conviction for a more severe crime or a higher sentence. I presumed as well that they were intimately familiar — far more than I or the general public could be — with the specific facts disclosed through their investigation. In every criminal prosecution that pleads out (and for that matter, in every civil lawsuit that settles), the advocates are required to make very subjective predictions and judgment calls on the basis of factors largely hidden from public view — how will this witness and that witness hold up on cross? what emotional hooks in my case and my opponent's are likely to grab with the jury?
At the press conference announcing the deal, no one's throwing bricks back and forth, and therefore the prosecution's case as there described usually sounds a lot cleaner and more persuasive than what would actually have emerged from the messy smoke, heat, and occasional light of a trial. But I recognized — as I'm sure the prosecutors did — that Berger would have been certain to have had essentially unlimited resources and legal talent available for his defense, plus a sympathetic MSM and an artful PR campaign waged by (unfortunately) well-practiced spinners and sycophants.
I also was inclined to defer to the prosecutors' judgment about striking an appropriate balance between zeal to enforce our national security laws and realpolitik concerns: On the one hand, Berger was a career public servant of at least some merit, and we're not talking about selling nuclear secrets to Iran. On the other, Berger only had access to the documents that he stole and destroyed because he'd undertaken a public trust; and even if the only consequences of his betrayal were political ones, such betrayals (perhaps especially such betrayals for such venial purposes) ought to be conspicuously punished.
It's a conviction, I thought to myself — albeit only for a misdemeanor, without jail time, and with (in context) a trivial fine — but a final, definitive judgment of conviction that isn't subject to years of appeals. Berger is now an admitted criminal. There's been a symbolic stripping of his security clearance, which heaps justifiable shame on the man. His place in history will ultimately be as a joke punchline, I thought. Onward and upward, I thought, and attaboy to the prosecutors for wrapping this up. And when I read the first reaction of my blogospheric friend and fellow lawyer John H. Hinderaker (a/k/a Hindrocket) over at Power Line, I thought he was being reflexively overcritical in writing that Berger had "got[ten] away with a criminal cover-up" through the plea.
But today I read the WaPo article on the plea bargain. And then I read Hindrocket's expanded analysis in which he persuasively explains why "[c]asual readers of the news will have no idea what to make of Sandy Berger's guilty plea," and why their impressions are likely to be badly at odds with the actual facts. My blood ran cold when I read these two sentences:
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One aspect of Berger's sentence that seems almost humorous is the fact that his security clearance is suspended for three years. He wasn't going to need it during President Bush's second term, in any event, and he'll have it back in time for the new Democratic administration that, he hopes, will begin in 2009.
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It's not a felony conviction. The buffoonish schtick — "he stuffed the documents into his pants and his socks, fer pete's sake, har har har!" — is what will stick in the public memory, not the federal criminal conviction for a confessed and indisputable breach of a public trust. And the groundwork has been laid for what suddenly seems to me to be a very likely PR campaign by the once-and-would-be-future Clintonista spinmeisters:
"That crazy Sandy, what a wonk! Yeah, he had that slap on the hand, but hey, he took his medicine like a mensch, Senators — and look at his career in context! Can you let this silly misstep from years ago, during the crazy post-9/11 hysteria, disqualify him from distinguished service in the Hillary Administration? Will you deny the public the benefit of his expertise and his insights for such a trivial matter? Why, that would be crass partisanship, Senators. The President and the public have forgiven him; indeed, the President pardoned him on her first day in office. Onward and upward, Senators!"
I'm still not willing to second-guess the prosecutors for approving the plea bargain. Their concerns ought not to have been, and presumably weren't, absolutely ensuring Berger's everlasting political destruction. And my objection to the result of the plea bargain is chiefly that it may fail to accomplish that destruction. As the WaPo story reports, the prosecutors did their job in requiring that Berger admit on the record to his intent, and in establishing that what Berger destroyed were non-identical copies that might have contained unique "marginalia" embarrassing to the Clinton Administration:
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The terms of Berger's agreement required him to acknowledge to the Justice Department the circumstances of the episode. Rather than misplacing or unintentionally throwing away three of the five copies he took from the archives, as the former national security adviser earlier maintained, he shredded them with a pair of scissors late one evening at the downtown offices of his international consulting business.
The document, written by former National Security Council terrorism expert Richard A. Clarke, was an "after-action review" prepared in early 2000 detailing the administration's actions to thwart terrorist attacks during the millennium celebration. It contained considerable discussion about the administration's awareness of the rising threat of attacks on U.S. soil.
Archives officials have said previously that Berger had copies only, and that no original documents were lost. It remains unclear whether Berger knew that, or why he destroyed three versions of a document but left two other versions intact. Officials have said the five versions were largely similar, but contained slight variations as the after-action report moved around different agencies of the executive branch.
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So if Sandy Berger indeed still has a future as a political appointee, that will be the fault of the politicians, not the prosecutors. I therefore can't quite join in Hindrocket's conclusion that the plea bargain itself is "a disgrace": Maybe it's light, but maybe it reflects prosecutorial judgments based on facts and subjective evaluations that neither Hindrocket or I have available to us — and it beats the hell out of an acquittal in any event!
But for what it's worth, if my nightmare scenario comes to pass — if the Senate is ever again asked to confirm Sandy Berger for any public post — I believe it would be wrong for the opposition to filibuster his nomination. Oh, no — he'll deserve an up-or-down vote on the merits, with every senator going on record! But as a matter of principle, that vote ought to be, must be, against confirmation. The Constitution requires the Senate either to consent, or to withhold consent. But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.
He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.
Bookmark this post for 2009 — just in case. You might want to email a link to it to your senators then.
UPDATE (Sat Apr 2 @ 8:45pm): Two more news stories leave me a bit confused. Per the NYT:
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Some Republican leaders have speculated that he took the documents because he was trying to conceal material that could be damaging to the Clinton administration. But Noel L. Hillman, who leads the Justice Department's public integrity section, said after the hearing on Friday that the department's investigation had found no evidence that Mr. Berger had intended to hide anything from the Sept. 11 commission. Indeed, the commission had access to all the original reports on the 2000 threat assessment, Mr. Hillman pointed out.
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And per a new WaPo article:
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The Justice Department said yesterday there was no evidence that former national security adviser Samuel R. "Sandy" Berger was trying to conceal information when he illegally took copies of classified terrorism documents out of the National Archives in 2003....
Noel L. Hillman, chief of the Justice Department's public integrity section, said Berger "did not have an intent to hide any of the content of the documents" or conceal facts from the commission investigating the Sept. 11, 2001, attacks....
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This leaves me wondering whether Mr. Hillman's comments may have been literally true but misleadingly spun. If, as the previous WaPo story indicates, what Berger took and destroyed were non-identical copies — themselves photocopies of a memorandum whose pristine version appears several times in the archives, but bearing, on those unique and irreplaceable versions, handwritten comments ("marginalia") that comprised various individuals' comments on and reactions to the text of the original memorandum — then there may literally have been "no evidence" left in existence to prove precisely what Berger destroyed. There would therefore be no "direct evidence" to directly prove what has been lost, shredded by Sandy Scissorshand. And his defense team would be able to argue that the prosecution was simply speculating when arguing that anything significant was on the non-identical copies. And that may have been what Mr. Hillman meant, in context, when he used the words "no evidence." I'd very much like to see his full statement, if anyone can find it online; it's not yet on the DoJ website's press release section.
However, if, as I suspect was true, the Archive's standing policy was to preserve (and to number and log) precisely one version of each "non-identical copy," then there might indeed be a compelling circumstantial inference that there was at least some marginalia on the documents that Berger destroyed. But whether trivial (like a doodle) or significant (like "Holy cow, President Clinton is letting Osama get away!") would still be a matter of speculation without direct evidence (that is, without the destroyed documents themselves).
But not all evidence is direct evidence, and circumstantial evidence can sometimes be incredibly probative. If there were no marginalia at all on what Berger destroyed, or if it was only trivial marginalia, then why did he destroy some but not all of the documents he'd stolen? Berger may be a geek, but he's also a deliberate thief and admitted spoliator of evidence, and whatever he did was not random. It was purposeful. Combine that with the subjective motive that can also be reasonably inferred to be possessed by someone in Sandy Berger's position, and a jury might, repeat might, have drawn an inference that he destroyed what he destroyed precisely because it was damaging (even if we'll never know how precisely how damaging).
I'm still not persuaded that the prosecutors screwed up. The distinctions I'm drawing in this post about non-identical copies, spoliation, direct versus circumstantial evidence, etc., are familiar to good trial lawyers. I have no reason to doubt that the prosecutors grasped those distinctions, and factored them into their judgment call on whether to go to trial or offer the plea bargain. I do wonder, however, whether this "no evidence" bit is being spun — hard and misleadingly — by a sympathetic MSM to make Berger look significantly better than he deserves.
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