Did the DOJ try to cover up Sandy Berger's burglary?

Moran’s got a solid post up about the WaPo’s article this morning and he’s as perplexed and frustrated as I am. The more that comes out, the more oddly incurious and unforthcoming does the DOJ seem about the full extent of Berger’s crime. But why oh why would Bush’s Justice Department want to protect Clinton’s NSA?

Our story begins with Paul Brachfeld, the inspector general of the National Archives, politely suggesting that the DOJ might want to mention to the 9/11 Commission that no one knows how many documents Berger took or whether any of them were originals. Did they heed his suggestion?

They did not.

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.

Do members of the 9/11 Commission regret the fact that they weren’t informed about this?

They do.

A report last month by the Republican staff of the House Oversight and Government Reform Committee said for the first time that Berger’s visits were so badly mishandled that Archives officials had acknowledged not knowing if he removed anything else and destroyed it. The committee further argued that the 9/11 Commission should have been told more about Berger and about Brachfeld’s concerns, a suggestion that resonated with Philip Zelikow, the commission’s former executive director.

Zelikow 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.”

The capper (which we alredy knew): the Justice Department’s wrist-slap plea bargain with Berger actually called for a lighter sentence than the one the judge imposed.

Exit question: What’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 they’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 don’t bring down the hammer on a former NSA, especially one with no compunctions about shenanigans involving state secrets.

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