Maybe this is just the way the plea process played out. The prosecutor requires that he plea to the crime and he gets a reduced punishment. Which is to say, maybe it was an honest mistake but the plea agreement required that he plea intent. The relevant statute reads in significant part that one must "knowingly [remove] such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location."
So, he had to claim intent, otherwise he could not enter a plea. And if he did not accept the plea,maybe the prosecutor goes after him not on the "taking" issue but on the destruction issue, as in Section 2071. Concealment, removal, or mutilation generally. Section 2071, unlike section 1924 to which he pled, is a felony, not a misdemeanor.
So lets say, he accidentally removed but deliberately destroyed -- there can be no doubt the destruction was deliberate. That is the felony mentioned above. So, he pleas out to the misdemeanor of deliberate removal thereby ducking the deliberate destruction charge.
Who knows, though. There is a reasonable possibility I am getting the statutes wrong in any case.
Well, the documents were removed by Berger. The Archives noticed that records were missing. The Archives called Berger on it. Maybe he panicked, destroyed the evidence, tried to cover it up. A CYA that blew up in his face. Seems possible to me.
I don't know, it just seems to me understandable that if he did accidentally remove he might think that eliminating the evidence might wash his hands of the affair. He might have been foolish in this view. I might be naive in this speculation.
In either case, I certainly don't begrudge you your interpretation. Even under my speculation, three years without clearance seems incredibly light. It seems to me that an admission of deliberate taking or destruction (much less both) should lead to a permanent loss of his clearance privileges at the very least.
As a side issue, I'd like to know if anyone has anything resembling confirmation of the endlessly repeated accusation about his "stuffing documents into his pants." All I've ever seen on it seems to go back to unsupported assertion, but, of course, it's entirely possible that I've missing seeing an actual reputable source that can supply something other than assertion.
It was my understanding up to now, by the way, that none of the documents Berger handled were either originals or lacking in multiple copies available at different locations, and that he knew that; but, of course, my understanding could be wrong on that in whole or part. If it's true, of course, any accusation of attempting to conceal anything couldn't possibly be true. If it's untrue, that would be quite different.
My understanding is the same about the copies, thus the speculation about revisions or marginal notes. As for the pants stuffing, this story has an aide confirming other details, but still denying that.
Yeah -- this story to me reads like anything from 'sloppy guy walks out with what he believes to be unimportant extra copies, and when he realizes that he's done so, destroys them for security reasons rather than going to the hassle and embarassment of admitting what he'd done and returning them; Republicans make a big deal of it for political reasons'* to 'Berger deliberately destroys what he believes to be unique documents with information damaging to the Clinton administration.' The problem with the first is (a) who could be such an idiot, and (b) he seems to have now confessed to have doing it deliberately rather than accidentally. The problem with the second is that I haven't even seen any theories about what could have been so excitingly damaging to the Clinton administration that he would commit a crime to cover it up. Basically, I don't know what to think.
*To be fair to the Republicans, even under this version, Berger still broke the law -- sloppiness is not an excuse for anything.
I wonder if he has a mental ailment. None of this makes any sense whatsoever unless he is pathologically schizophrenic.
Posted by Ono | Link to this comment | 04- 2-05 8:47 AM
Well, no, it makes perfect sense if there were revisions or notes that he wanted to destroy. It's just illegal, and a breach of public trust.
Posted by ogged | Link to this comment | 04- 2-05 9:25 AM
yeah, he should totally be in jail. and what the hell was in the margins, "I heart Osama" or something?
Posted by alameida | Link to this comment | 04- 2-05 4:46 PM
Maybe this is just the way the plea process played out. The prosecutor requires that he plea to the crime and he gets a reduced punishment. Which is to say, maybe it was an honest mistake but the plea agreement required that he plea intent. The relevant statute reads in significant part that one must "knowingly [remove] such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location."
So, he had to claim intent, otherwise he could not enter a plea. And if he did not accept the plea,maybe the prosecutor goes after him not on the "taking" issue but on the destruction issue, as in Section 2071. Concealment, removal, or mutilation generally. Section 2071, unlike section 1924 to which he pled, is a felony, not a misdemeanor.
So lets say, he accidentally removed but deliberately destroyed -- there can be no doubt the destruction was deliberate. That is the felony mentioned above. So, he pleas out to the misdemeanor of deliberate removal thereby ducking the deliberate destruction charge.
Who knows, though. There is a reasonable possibility I am getting the statutes wrong in any case.
Posted by IF | Link to this comment | 04- 2-05 9:12 PM
he accidentally removed but deliberately destroyed
That doesn't seem very likely, does it?
Posted by ogged | Link to this comment | 04- 2-05 9:17 PM
That doesn't seem very likely, does it?
Well, the documents were removed by Berger. The Archives noticed that records were missing. The Archives called Berger on it. Maybe he panicked, destroyed the evidence, tried to cover it up. A CYA that blew up in his face. Seems possible to me.
I don't know, it just seems to me understandable that if he did accidentally remove he might think that eliminating the evidence might wash his hands of the affair. He might have been foolish in this view. I might be naive in this speculation.
In either case, I certainly don't begrudge you your interpretation. Even under my speculation, three years without clearance seems incredibly light. It seems to me that an admission of deliberate taking or destruction (much less both) should lead to a permanent loss of his clearance privileges at the very least.
Posted by IF | Link to this comment | 04- 2-05 9:39 PM
The Times has more details here. It looks like he destroyed the documents before the investigation began.
Posted by eb | Link to this comment | 04- 2-05 9:57 PM
Laura Rozen passes along some interesting comments here.
Posted by Matt Weiner | Link to this comment | 04- 3-05 3:16 PM
I think he has yet to go to sentencing.
Posted by rcs | Link to this comment | 04- 4-05 11:48 AM
I've yet to make any sense out of this case.
As a side issue, I'd like to know if anyone has anything resembling confirmation of the endlessly repeated accusation about his "stuffing documents into his pants." All I've ever seen on it seems to go back to unsupported assertion, but, of course, it's entirely possible that I've missing seeing an actual reputable source that can supply something other than assertion.
It was my understanding up to now, by the way, that none of the documents Berger handled were either originals or lacking in multiple copies available at different locations, and that he knew that; but, of course, my understanding could be wrong on that in whole or part. If it's true, of course, any accusation of attempting to conceal anything couldn't possibly be true. If it's untrue, that would be quite different.
Posted by Gary Farber | Link to this comment | 04- 4-05 3:17 PM
My understanding is the same about the copies, thus the speculation about revisions or marginal notes. As for the pants stuffing, this story has an aide confirming other details, but still denying that.
Posted by ogged | Link to this comment | 04- 4-05 3:42 PM
Yeah -- this story to me reads like anything from 'sloppy guy walks out with what he believes to be unimportant extra copies, and when he realizes that he's done so, destroys them for security reasons rather than going to the hassle and embarassment of admitting what he'd done and returning them; Republicans make a big deal of it for political reasons'* to 'Berger deliberately destroys what he believes to be unique documents with information damaging to the Clinton administration.' The problem with the first is (a) who could be such an idiot, and (b) he seems to have now confessed to have doing it deliberately rather than accidentally. The problem with the second is that I haven't even seen any theories about what could have been so excitingly damaging to the Clinton administration that he would commit a crime to cover it up. Basically, I don't know what to think.
*To be fair to the Republicans, even under this version, Berger still broke the law -- sloppiness is not an excuse for anything.
Posted by LizardBreath | Link to this comment | 04- 4-05 3:45 PM
Abrams. Poindexter. North. McFarlane. Weinberger. Reich. Negroponte. Perle.
Just sayin.
See also: http://www.fas.org/irp/offdocs/walsh/summpros.htm
Posted by Doug | Link to this comment | 04- 5-05 9:21 AM
Absolutely, Doug, but that doesn't excuse Berger.
Posted by Matt Weiner | Link to this comment | 04- 5-05 9:32 AM
No, but keep it in mind if the ol Rs start bitchin an whinin should a future D president both pardon Sandy B and make use of his expertise.
Outrage only about Berger is either selectively partisan or a sign of a short memory.
Posted by Doug | Link to this comment | 04- 6-05 6:32 AM
Check out this Political Animal post. Looks as if it was just copies, and Berger is a careless idiot rather than an intentional malfactor.
Posted by LizardBreath | Link to this comment | 04- 7-05 7:07 PM