The Scooter Libby–Sandy Berger comparison is easy to draw. The media remind us incessantly of Mr. Libby’s misdeeds. As they tend to be less vocal about Mr. Berger, here is a recap:
According to reports from the Inspector General of the National Archives and the staff of the House of Representatives’ Government Operations Committee, Mr. Berger, while acting as former President Clinton’s designated representative to the commission investigating the attacks of September 11, 2001, illegally took confidential documents from the Archives on more than one occasion. He folded documents in his clothes, snuck them out of the Archives building, and stashed them under a construction trailer nearby until he could return, retrieve them, and later cut them up. After he was caught, he lied to the investigators and tried to shift blame to Archive employees.
Contrary to his initial denials and later excuses, Berger clearly intended from the outset to remove sensitive material from the Archives. He used the pretext of making and receiving private phone calls to get time alone with confidential material, although rules governing access dictated that someone from the Archives staff must be present. He took bathroom breaks every half-hour to provide further opportunity to remove and conceal documents.
No one knows with any assurance what materials were destroyed. The culprit voluntarily resigned from the D.C. Bar rather than face questions about them in an ethics probe.
The Justice Department concluded that this conduct deserved a misdemeanor charge, a $10,000 fine and a temporary security clearance revocation. The judge to whom this plea bargain was presented raised the fine to a slightly less risible $50,000.
While it certainly looks like Mr. Berger was treated far more leniently than Mr. Libby, there is a better side-by-side. Conrad, Lord Black, formerly head of the Hollinger newspaper chain, is currently on trial in Chicago for alleged financial wrongdoing. One count of the indictment is for obstruction of justice.
After being ousted from Hollinger, Lord Black removed a number of boxes from his former office, despite a court order forbidding him to do so. That is the basis for the obstruction charge. One of his lawyers has testified, without contradiction, that copies of the documents in the boxes had previously been disclosed to the Securities and Exchange Commission. It would be astonishing if, by that point in the investigation, they had not all been inventoried. The government does not allege that any were actually purloined or destroyed. Nonetheless, it seeks a felony conviction. It may be legally entitled to one. By the Sandy Berger standard, however, Lord Black’s actions were on a par with jaywalking.
A recurring worry about democratic government is how equal justice can be administered in politically sensitive cases. The Berger–Libby and Berger–Black contrasts are fodder for that concern. Except that Scooter Libby worked for the incumbent administration and Lord Black is an outspoken supporter of its policies. So much for simple assumptions about how partisanship works in modern America.
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