Saturday, March 10, 2007

Libby and Berger
Mike Rappaport

I haven't followed the Libby trial that closely, but one aspect of the verdict did occur to me: How is it that Scooter Libby is facing jail time and Sandy Berger got off with a slap of the wrist.  At least part of the answer is that Libby was investigated by a special prosecutor, while Berger was not.   My guess is that there is more to the story of Berger as well (incompetence at Justice?)

Charles Krauthammer points out some other irksome aspects of the trial as well:

And why should they not? Russert is a perfectly honest man who would not lie. He was undoubtedly giving his best recollection.

But he is not the pope. Given that so many journalists and administration figures were shown to have extremely fallible memories, is it possible that Russert's memory could have been faulty?

I have no idea. But we do know that Russert once denied calling up a Buffalo News reporter to complain about a story. Russert later apologized for the error when he was shown the evidence of a call he had genuinely and completely forgotten.

There is a second instance of Russert innocently misremembering. He stated under oath that he did not know that one may not be accompanied by a lawyer to a grand jury hearing. This fact, in and of itself, is irrelevant to the case, except that, as former prosecutor Victoria Toensing points out, the defense had tapes showing Russert saying on television three times that lawyers are barred from grand jury proceedings.

This demonstration of Russert's fallibility was never shown to the jury. The judge did not allow it. He was upset with the defense because it would not put Libby on the stand — his perfect Fifth Amendment right — after hinting in the opening statement that it might. He therefore denied the defense a straightforward demonstration of the fallibility of the witness whose testimony was most decisive.

Toensing thinks this might be the basis for overturning the verdict upon appeal. I hope so. This is a case that never should have been brought, originating in the scandal that never was, in search of a crime — violation of the Intelligence Identities Protection Act — that even the prosecutor never alleged.

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Mike Rappaport


I guess there are two questions here.1) Would testimony about two instances where a witness did not remember something be probative or prejudicial? 2.) If the testimony would have been probative, would it likely have changed the decision? I would say 1.) prejudicial and 2.) No.

Posted by: USD Law Student | Mar 10, 2007 2:55:36 AM

So, why is the fact Fitzgerald is a special prosecutor (as opposed to a regular prosecutor?) relevant to the disparte treatment between Scooter and Berger? And is that a good or bad thing?

Posted by: David Brayton | Mar 10, 2007 9:03:43 AM

How in the world is a showing that a key witness has a faulty memory prejudicial? Are there jurors out there who will turn against someone because their hatred of people with less than perfect memory is just so great? If you mean that a showing of faulty memory by the witness will make jurors not believe him, well I'm afraid that's not what 'prejudicial' means. If a witness has a faulty memory that goes to competence, and that should not be barred. Considering that Russert's testimony is the one that contradicts Libby's, I would have to say that if jurors had evidence that Russert was forgetful about past conversations it might well change the outcome of the case.

Posted by: Sleeptastic | Mar 10, 2007 8:54:16 PM

Part of the difference, I suspect, is that Berger confessed, told all, and his story made sense. Berger was accused of making copies of sensitive documents to refresh his memory for testimony before the 9/11 commission. He destroyed copies of those documents, which should never have been made, but could presumably say that he destroyed them to keep them from getting out. The prosecutor investigating him accepted that no original material was lost. It should be noted that the sentencing judge did not accept the prosecutors' sentencing recommendation, and imposed a harsher one. As for Libby, his sentence is still in the air. But he did try to fight, and lost. I am not a lawyer, but that seems to count for something. And where Berger's misdeeds sound like an end in themselves, there is a rather strong suspicion that Libby lied to cover up something. We will learn more at sentencing in June, I suppose.

Posted by: wanderingmoderate | Mar 10, 2007 9:08:54 PM


The problem with your statements is that Berger did not make copies of the documents. He took copies from the files of documents. These copies had not been backed up so how can we be sure that no original materials, like notes written on the copies by whoever read them to begin with, might have been lost. Then the problem is that there is a prescribed way to destroy classified documents and taking them home, cutting them up and throwing them in the trash is not that. Also taking documents, stashing them under a trailer down the street and then picking them up later is not considered good document handling.

Like you IANAL, but during the Kennedy years I was partially responsible for record keeping of top secret documents, handling of eyes only documents,the bagging of diplomatic pouches and the preparation of briefing books for the top people in the Pentagon as well as to congress critters and the White House. The other duty I had as to assist the officers responsible in destruction of classified documents at the incinerators and the pulping machines. At every step of the process we had to prove exactly what we were burning and how much we were burning. If Berger can produce proof that he has the records of exactly what he destroyed, where he destroyed it, how he destroyed it and countersignatures of qualified persons who can approve that he followed the procedures, then maybe I would cut him some slack. Absent that, hang the bastard from the highest tree. I have seen some people who had their lives and careers ruined for doing much less than he did.

Posted by: dick | Mar 10, 2007 9:43:14 PM

I think it's that the Clinton impeachment just convinced everybody that perjury is something you absolutely can't ever ignore.

But perhaps Bush will realize that perjury isn't all that bad a thing after all and pardon Scooter.

Posted by: bob | Mar 10, 2007 10:59:09 PM

Let me see if I've got this right. Sandy Berger stole classified documents related to Bin Laden/9-11/terrorism and he gets a fine a community service. Libby commits a process crime and he gets jail time.

Oh, and Berger Did Not Confess. He only confirmed what could be proven and clammed up about exactly what he destroyed. Original copies of national security briefs with Slick Willys' handwriting on them maybe?

But Libby did commit the one unpardonable sin in D.C. He's a Republican.

Posted by: Eric Chamblee | Mar 11, 2007 1:45:11 AM

Scooter Libby has not been sentenced to prison time or anything else yet. The Judge still has the option of giving Libby exactly the same fine, community service and three year loss of security clearance that Sandy Burger received.

Posted by: Mark in Texas | Mar 11, 2007 5:19:06 AM

Mark in Texas,

Compare and contrast the "crimes" the two committed and then tell my why Libby should get exactly the same fine, community service and three year loss of security clearance that Sandy Burger received. Thought the punishment was supposed to fit the crime. In that case Sandy Burger should be on death row and Libby should be the trustee working as secretary to the warden.

Posted by: dick | Mar 11, 2007 9:36:18 AM

--And where Berger's misdeeds sound like an end in themselves, there is a rather strong suspicion that Libby lied to cover up something--

What utter nonsense! You talk as if Sandy berger were in your town library and destroying his library card. Mr. Berger - former national security adviser - was in the National Archives (which we the people own) preparing for the 911 commission. He was COVERING UP SOMETHING when he stole those documents. And unlike the kabuki theater was-she-or-wasn't-she covert, this commission was trying to answer questions that may keep us safe from another terror attack.

I was a secret document custodian in the Army. Had I simply be caught leaving a document unprotected on a desk, I could have gone to jail for 10 years.

Only a real, relexively partisan would say that Libby was covering something up and Berger was not. I agree with Dick, the very real likelihood is that Berger should be on death row. Only those who are unserious about protecting their fellow citizens will not think this out.

Posted by: red | Mar 11, 2007 10:03:43 AM


My personal opinion is that Libby should never have been convicted, but that train left the station when the venue for the trial was set in Washington DC just as surely as OJ Simpson's verdict was decided when they changed the venue from Brentwood to downtown LA.

The media keep talking about 25 years in prison to set public expectations that anything less will be a wrist slap. I believe that we should be discussing Sandy Berger's wrist slap every time we discuss Libby.

Posted by: Mark in Texas | Mar 11, 2007 12:52:37 PM

Sleeptastic: "If a witness has a faulty memory that goes to competence, and that should not be barred" IF the judge decided that two instances of "innocently misremembering" spoke to the faulty memory of this particular witness, they should have been admitted. However, IF the judge decided that two instances of "innocently misremembering" could be found for any given witness, regardless of the quality of thier memory, then the judge might rightly decide that the evidence is irrelevent and prejudicial. Example:
Prosecutor: "And what did you see then?"
Witness: "I saw the defendent stabbing the victim as he lay on the ground."
Cross . . .
Defense: "But isn't it true, Mr. Witness, that you have forgotten things in the past?"
Witness: "Umm Yes."
Defense: "And isn't it true that you have forgotten things at least twice in the past?"
Witness: "Yes"
Defense: And, in fact you have forgotten things more than twice, is that true?"
Witness: "Uh . .I don't remember"
Defense: "No further questions your honor."
The point is that unduly emphasizing normal features of human experience that are in no way connected to the case CAN be prejudicial. Maybe an analogy helps to consider another unrelated but normal feature of human experience. In a sexual harassment suit:
Plaintiff's counsel: "And then what happened?"
Plaintiff: "He told me that unless I had sex with him he would fire me."
Cross . . .
Defense: "And isn't it true that you lost your virginity before the age of 18?"
Plaintiff: "Yes."
Defense: "And isn't it true that you had premarital sex before meeting your current husband?"
Plaintiff: "Yes."
Defense: "And isn't it true that you initiated some of these sexual encounters?"
Plaintiff: Yes."
Defense: "No further questions your honor."

Posted by: USD Law Student | Mar 11, 2007 8:11:35 PM

The reason Sandy Berger got off easy was that a National Archives staffer screwed up. She broke the rules and let him read these top secret documents outside the Secure Compartmented Information Facility.

On Page 21 of the Inspector General report, we read that "After learning [Mr. Berger] was given special treatment by viewing the documents in [redacted] office, he suggested no exceptions to the rules should be given to former National Security Advisors or others."

The subtext? He and his lawyers were prepared to claim entrapment. If Mr. Berger was going to be prosecuted, they could claim it was all a set-up job by the Bush administration. I bet that's why the prosecutors cut him a deal.

Posted by: Parallel | Mar 11, 2007 8:53:01 PM

Well, the prosecutor in Berger's case emphatically stated that he was convinced that no original documents had been destroyed, and that the copies Berger had removed had no notations in the margin. In short, it appears that Berger's claim that he removed copies solely for his own research is in accord with the conclusion's of the investigation. His motivation in doing so appears to have been that he decided the documents were overclassified. Let me be the first to say that he does not get to make such decisions on his own, and it is only right he be held to account. But if you won't take my word for it, how about the Wall Street Journal editorial page? Is that too partisan?
According to the WSJ, Berger could have gotten, at most, a year in prison for taking them. Perhaps standards have gone down since you were working with classified data; I don't know. But there is no reason to believe that any data was permanently lost, or leaked to unfriendly sources. It seems to be a matter for reasonable debate whether or not his punishment fit the crime, but the Justice Department was happy with a lighter sentence than he actually got. Though I would suspect that it has hurt him beyond the sentence- he has probably dropped off the short list for cabinet posts for any future Democratic administration.

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