Mueller, Comey, and the Deep State Rescue of Sandy Berger

In April 2005, a Republican-led Department of Justice did something quite unusual. After catching a Democratic operative stealing and destroying highly relevant classified documents, the DoJ punished him as though he had stolen the Snickers bars from the office vending machine.

On October 28, 2005, another curious event took place in those same halls of justice: an allegedly Republican special prosecutor indicted a White House advisor of his own party for a series of process crimes unrelated to the original intent of his investigation.

As will become clear, this double injustice not only foreshadowed future injustices, but it also served as a practice run of sorts for the players involved. Several of these players would come center stage once again in the long-running political drama that debuted in 2016.

The Democratic operative on that barely warm seat in 2005 was former Clinton National Security Advisor Sandy Berger, since deceased. The attorney general at the time, the feckless Alberto Gonzales, had been on the job less than two months when the Berger deal went down.

Gonzales’s deputy attorney general, James Comey, however, had been on the job for more than a year. It was under Comey’s supervision that the DoJ reviewed the case against Berger. It was a doozy.

In the nerviest of his criminal acts, Berger stole highly classified documents and stashed them under a trailer at a construction site during a break. He retrieved the documents at the end of the day and admittedly used scissors to cut them into little pieces before throwing them away. He then lied to investigators about what he had done.

As punishment, Comey and crew recommended a $10,000 fine for Berger and a three-year loss of top-level security clearance. That, incredibly, was it. Oh, yes, as part of the package, the FBI and/or DoJ was to give Berger a lie detector test. Neither agency bothered.

Celebrity homemaker Martha Stewart had to be fuming. Two years earlier, Comey, then U.S. attorney for the Southern District of New York, prosecuted Stewart for lying to investigators on a minor stock transaction and saw to it that Stewart served five months in prison. Months later, it would be Bush/Cheney advisor Scooter Libby’s turn.

The FBI Director in 2005 was Robert Mueller. His role in the Berger case might have paralleled Comey’s role in the Hillary Clinton email affair, but it did not. Comey served as the public face in both the Berger and the Clinton cases, the former as Deputy AG, the latter as head of the FBI. Comey likes the limelight.

During his eight years in the Clinton White House, Berger had done worse than steal documents. Like Pulp Fiction’s Winston Wolf, his job was to “solve problems.” In April 2002, the former president had a problem to solve. Someone had to review intelligence documents in advance of the various hearings on 9/11. As made clear in a 2007 report by the House Committee on Government Oversight and Reform -- a primer on deep state treachery -- Berger did not welcome the assignment. 

According to the archivists, Berger “indicated some disgust with the burden and responsibility of conducting the document review.” I have a suspicion of what those documents were. Suffice it for now to say they had to contain information damaging to both Clinton and Berger sufficient for Berger to risk his livelihood, his reputation, and his very freedom.

The House report states that Berger made four trips to the National Archives.  The first of his visits was in May 2002, the last in October 2003. He clearly left his mark. “The full extent of Berger’s document removal,” said the House report, “is not known and never can be known.”

The archivists expressed shock that neither the FBI nor the DoJ even questioned Berger about his first two visits when several original documents were there for the taking.

Were it not for Paul Brachfeld, the inspector general of the National Archives, the Berger case might never have surfaced. In January 2004, a month after Comey became deputy AG, Brachfeld met with DoJ attorney Howard Sklamberg. Concerned that Berger had obstructed the 9/11 Commission’s work, Brachfeld wanted assurance that the commission knew of Berger’s crimes.

He did not get it. On March 22, 2004, two days before Berger’s public testimony, senior attorneys John Dion and Bruce Swartz informed Brachfeld the DoJ was not going to notify the commission of the Berger investigation before his appearance.

On Wednesday, March 24, 2004, Berger testified publicly before the commission. The commission members, at least the Republicans, did not know he had been apprehended stealing and destroying the very documents the commission was expected to review. This much was evident in Chairman Thomas Kean’s initial exchange with Berger.

“We are pleased to welcome before the commission a witness who can offer us considerable insight into questions of national policy coordination, Mr. Samuel Berger, who served as President Clinton’s national security advisor,” said the clueless Kean.

While the commission hearings moved on, Brachfeld kept prodding Justice. On April 6, 2004, two weeks after Berger’s appearance before the 9/11 Commission, he called DoJ’s Inspector General Glenn Fine and again expressed his concern that the commissioners remained unaware of Berger’s theft. Fine organized a meeting for April 9.

Brachfeld reported to those gathered, “Berger knowingly removed documents and therefore, may have purposely impeded the 9/11 investigation.” Some of those documents, Brachfeld added, might have been “original.” If those originals had been destroyed, they would have been lost to history. There were no other copies.

Brachfeld made no headway. The commissioners learned nothing about Berger until July 19, 2004, three days before the 9/11 Commission released its final report, too late for any significant amendment.

The commissioners might have forever remained in the dark had there not been a leak from somewhere in the Bush administration. At the time the leak became news in July 2004 -- and then just barely -- Berger was serving as a campaign adviser to Senator John Kerry.

To counter the news, Berger’s attorney Lanny Breuer introduced a media-friendly narrative in which Bush was the real villain for using the revelation as a campaign ploy. It worked. The New York Times would write off the theft and surrounding noise as “a brief stir” in the campaign season. “His motives in taking the documents remain something of a mystery,” reported the Times. How different history would have been had the Washington Post contented itself with writing, “The motives of the Watergate burglars remain something of a mystery.”

After nearly a year of quiet negotiation, Bush Department of Justice officials announced their stunning plea deal with Berger. They did so strategically. To starve the deal of media attention, the DoJ made the announcement on Friday, April 1, 2005, the day after Terri Schiavo’s highly publicized death.

In September 2005, a federal judge upped the ante on Berger’s theft but not by enough to hurt: a $50,000 fine -- chump change for the wealthy attorney -- two years of probation, and one hundred hours of community service.

As I watched these events unfold, I presumed the Bush DoJ went soft on Berger to honor some unwritten pact among presidents to protect their predecessors’ national security secrets. That may be part of the calculus, but as has become evident, Republican presidents have little control over their Justice Departments. The Bush White House had even less control than does the Trump White House. The Trump White House at least has Trump.

Republican presidents struggle against a collective of entrenched careerists, soulless opportunists, and left-wing ideologues -- the so-called “deep state.” The ideologues are in it for the power, the careerists for the pensions, and the opportunists for the applause. Working together with their media partners, they follow the path of least resistance, which is almost inevitably to the left. When a Democrat is president, they have his back.

The DoJ attorneys calling the shots in the Berger case -- Dion, Swartz, Sklamberg, and Fine -- were all holdovers from the Clinton administration. As far as I could tell, Fine, Swartz, and Sklamberg had only contributed to Democratic candidates in federal races and Dion had no record of federal contributions.

As the House report noted, “The Justice Department was unacceptably incurious about Berger’s Archives visits.” Overseeing this incuriosity, and serving as the investigation’s public face, was Deputy AG Comey. If Comey told his good friend Mueller about Berger’s crimes, he did so on the QT. According to the House Report, the DOJ did not notify the FBI, at least not officially, until after Berger pled guilty. Mueller never said boo.

In July 2004, when the Berger story broke, Comey told the media, "As a general matter, we take issues of classified information very seriously. It's our lifeblood, those secrets." As Comey proved again in the summer of 2016, if a prominent Democrat is implicated, he and his colleagues do not take these issues seriously at all. If, however, the security issue involves someone who is unconnected or disruptive, prosecutors will turn over every stone just for the spectacle of turning them over.

Scooter Libby learned this the hard way. His undoing started with a news leak about a telegenic, if insignificant, CIA agent named Valerie Plame. The leak had nothing to do with Libby or his boss, Vice President Dick Cheney. No matter. Comey pressured his boss John Ashcroft to recuse himself from an investigation into the leak. Sound familiar? He then named a special counsel who just happened to be the godfather of one of Comey’s children. That sounds familiar too.

The Patrick Fitzgerald appointment took place at roughly the same time the archivists were alerting the DoJ to Berger’s repeated theft of critical documents. The media much preferred the Plame story to the Berger story, and so the opportunists played to the media.

Even before Fitzgerald really got started on the investigation, however, he, Mueller, and Comey learned who the leaker was. The news was not welcome. He was one of their own, Deputy Secretary of State Richard Armitage, a veteran swamp dweller and an open critic of President Bush.

Still, Fitzgerald had his commission and the uncritical attention of the media. With their full-throated support, he did an unrestrained dumpster dive into the Bush White House not unlike Mueller’s into the Trump White House. All Fitzgerald managed to climb out with was Libby. The media were hoping for hated Bush advisor Karl Rove and maybe even Cheney. They had to make do.

Six months after Berger got his wrist slapped, Fitzgerald indicted Libby for a series of Martha Stewart-style process crimes. Unlike Berger who got no jail time, Libby was hit with thirty months. Under pressure from the right, President Bush commuted his sentence, but Libby had to wait until 2018 to be pardoned, courtesy of President Trump.

As to Armitage, he was never prosecuted for anything. The DOJ accepted his claim the leak was unintentional much the way it would accept Hillary’s “lack of intent” claim years later. The deep state takes care of its own.

In many ways, 2005 was a dress rehearsal for 2016. Mueller and Comey had learned how to play their parts. The media had learned how to play theirs. Indeed, the show would have been another huge hit if only Trump had stuck to the “good Republican” script the way Bush had.

In April 2005, a Republican-led Department of Justice did something quite unusual. After catching a Democratic operative stealing and destroying highly relevant classified documents, the DoJ punished him as though he had stolen the Snickers bars from the office vending machine.

On October 28, 2005, another curious event took place in those same halls of justice: an allegedly Republican special prosecutor indicted a White House advisor of his own party for a series of process crimes unrelated to the original intent of his investigation.

As will become clear, this double injustice not only foreshadowed future injustices, but it also served as a practice run of sorts for the players involved. Several of these players would come center stage once again in the long-running political drama that debuted in 2016.

The Democratic operative on that barely warm seat in 2005 was former Clinton National Security Advisor Sandy Berger, since deceased. The attorney general at the time, the feckless Alberto Gonzales, had been on the job less than two months when the Berger deal went down.

Gonzales’s deputy attorney general, James Comey, however, had been on the job for more than a year. It was under Comey’s supervision that the DoJ reviewed the case against Berger. It was a doozy.

In the nerviest of his criminal acts, Berger stole highly classified documents and stashed them under a trailer at a construction site during a break. He retrieved the documents at the end of the day and admittedly used scissors to cut them into little pieces before throwing them away. He then lied to investigators about what he had done.

As punishment, Comey and crew recommended a $10,000 fine for Berger and a three-year loss of top-level security clearance. That, incredibly, was it. Oh, yes, as part of the package, the FBI and/or DoJ was to give Berger a lie detector test. Neither agency bothered.

Celebrity homemaker Martha Stewart had to be fuming. Two years earlier, Comey, then U.S. attorney for the Southern District of New York, prosecuted Stewart for lying to investigators on a minor stock transaction and saw to it that Stewart served five months in prison. Months later, it would be Bush/Cheney advisor Scooter Libby’s turn.

The FBI Director in 2005 was Robert Mueller. His role in the Berger case might have paralleled Comey’s role in the Hillary Clinton email affair, but it did not. Comey served as the public face in both the Berger and the Clinton cases, the former as Deputy AG, the latter as head of the FBI. Comey likes the limelight.

During his eight years in the Clinton White House, Berger had done worse than steal documents. Like Pulp Fiction’s Winston Wolf, his job was to “solve problems.” In April 2002, the former president had a problem to solve. Someone had to review intelligence documents in advance of the various hearings on 9/11. As made clear in a 2007 report by the House Committee on Government Oversight and Reform -- a primer on deep state treachery -- Berger did not welcome the assignment. 

According to the archivists, Berger “indicated some disgust with the burden and responsibility of conducting the document review.” I have a suspicion of what those documents were. Suffice it for now to say they had to contain information damaging to both Clinton and Berger sufficient for Berger to risk his livelihood, his reputation, and his very freedom.

The House report states that Berger made four trips to the National Archives.  The first of his visits was in May 2002, the last in October 2003. He clearly left his mark. “The full extent of Berger’s document removal,” said the House report, “is not known and never can be known.”

The archivists expressed shock that neither the FBI nor the DoJ even questioned Berger about his first two visits when several original documents were there for the taking.

Were it not for Paul Brachfeld, the inspector general of the National Archives, the Berger case might never have surfaced. In January 2004, a month after Comey became deputy AG, Brachfeld met with DoJ attorney Howard Sklamberg. Concerned that Berger had obstructed the 9/11 Commission’s work, Brachfeld wanted assurance that the commission knew of Berger’s crimes.

He did not get it. On March 22, 2004, two days before Berger’s public testimony, senior attorneys John Dion and Bruce Swartz informed Brachfeld the DoJ was not going to notify the commission of the Berger investigation before his appearance.

On Wednesday, March 24, 2004, Berger testified publicly before the commission. The commission members, at least the Republicans, did not know he had been apprehended stealing and destroying the very documents the commission was expected to review. This much was evident in Chairman Thomas Kean’s initial exchange with Berger.

“We are pleased to welcome before the commission a witness who can offer us considerable insight into questions of national policy coordination, Mr. Samuel Berger, who served as President Clinton’s national security advisor,” said the clueless Kean.

While the commission hearings moved on, Brachfeld kept prodding Justice. On April 6, 2004, two weeks after Berger’s appearance before the 9/11 Commission, he called DoJ’s Inspector General Glenn Fine and again expressed his concern that the commissioners remained unaware of Berger’s theft. Fine organized a meeting for April 9.

Brachfeld reported to those gathered, “Berger knowingly removed documents and therefore, may have purposely impeded the 9/11 investigation.” Some of those documents, Brachfeld added, might have been “original.” If those originals had been destroyed, they would have been lost to history. There were no other copies.

Brachfeld made no headway. The commissioners learned nothing about Berger until July 19, 2004, three days before the 9/11 Commission released its final report, too late for any significant amendment.

The commissioners might have forever remained in the dark had there not been a leak from somewhere in the Bush administration. At the time the leak became news in July 2004 -- and then just barely -- Berger was serving as a campaign adviser to Senator John Kerry.

To counter the news, Berger’s attorney Lanny Breuer introduced a media-friendly narrative in which Bush was the real villain for using the revelation as a campaign ploy. It worked. The New York Times would write off the theft and surrounding noise as “a brief stir” in the campaign season. “His motives in taking the documents remain something of a mystery,” reported the Times. How different history would have been had the Washington Post contented itself with writing, “The motives of the Watergate burglars remain something of a mystery.”

After nearly a year of quiet negotiation, Bush Department of Justice officials announced their stunning plea deal with Berger. They did so strategically. To starve the deal of media attention, the DoJ made the announcement on Friday, April 1, 2005, the day after Terri Schiavo’s highly publicized death.

In September 2005, a federal judge upped the ante on Berger’s theft but not by enough to hurt: a $50,000 fine -- chump change for the wealthy attorney -- two years of probation, and one hundred hours of community service.

As I watched these events unfold, I presumed the Bush DoJ went soft on Berger to honor some unwritten pact among presidents to protect their predecessors’ national security secrets. That may be part of the calculus, but as has become evident, Republican presidents have little control over their Justice Departments. The Bush White House had even less control than does the Trump White House. The Trump White House at least has Trump.

Republican presidents struggle against a collective of entrenched careerists, soulless opportunists, and left-wing ideologues -- the so-called “deep state.” The ideologues are in it for the power, the careerists for the pensions, and the opportunists for the applause. Working together with their media partners, they follow the path of least resistance, which is almost inevitably to the left. When a Democrat is president, they have his back.

The DoJ attorneys calling the shots in the Berger case -- Dion, Swartz, Sklamberg, and Fine -- were all holdovers from the Clinton administration. As far as I could tell, Fine, Swartz, and Sklamberg had only contributed to Democratic candidates in federal races and Dion had no record of federal contributions.

As the House report noted, “The Justice Department was unacceptably incurious about Berger’s Archives visits.” Overseeing this incuriosity, and serving as the investigation’s public face, was Deputy AG Comey. If Comey told his good friend Mueller about Berger’s crimes, he did so on the QT. According to the House Report, the DOJ did not notify the FBI, at least not officially, until after Berger pled guilty. Mueller never said boo.

In July 2004, when the Berger story broke, Comey told the media, "As a general matter, we take issues of classified information very seriously. It's our lifeblood, those secrets." As Comey proved again in the summer of 2016, if a prominent Democrat is implicated, he and his colleagues do not take these issues seriously at all. If, however, the security issue involves someone who is unconnected or disruptive, prosecutors will turn over every stone just for the spectacle of turning them over.

Scooter Libby learned this the hard way. His undoing started with a news leak about a telegenic, if insignificant, CIA agent named Valerie Plame. The leak had nothing to do with Libby or his boss, Vice President Dick Cheney. No matter. Comey pressured his boss John Ashcroft to recuse himself from an investigation into the leak. Sound familiar? He then named a special counsel who just happened to be the godfather of one of Comey’s children. That sounds familiar too.

The Patrick Fitzgerald appointment took place at roughly the same time the archivists were alerting the DoJ to Berger’s repeated theft of critical documents. The media much preferred the Plame story to the Berger story, and so the opportunists played to the media.

Even before Fitzgerald really got started on the investigation, however, he, Mueller, and Comey learned who the leaker was. The news was not welcome. He was one of their own, Deputy Secretary of State Richard Armitage, a veteran swamp dweller and an open critic of President Bush.

Still, Fitzgerald had his commission and the uncritical attention of the media. With their full-throated support, he did an unrestrained dumpster dive into the Bush White House not unlike Mueller’s into the Trump White House. All Fitzgerald managed to climb out with was Libby. The media were hoping for hated Bush advisor Karl Rove and maybe even Cheney. They had to make do.

Six months after Berger got his wrist slapped, Fitzgerald indicted Libby for a series of Martha Stewart-style process crimes. Unlike Berger who got no jail time, Libby was hit with thirty months. Under pressure from the right, President Bush commuted his sentence, but Libby had to wait until 2018 to be pardoned, courtesy of President Trump.

As to Armitage, he was never prosecuted for anything. The DOJ accepted his claim the leak was unintentional much the way it would accept Hillary’s “lack of intent” claim years later. The deep state takes care of its own.

In many ways, 2005 was a dress rehearsal for 2016. Mueller and Comey had learned how to play their parts. The media had learned how to play theirs. Indeed, the show would have been another huge hit if only Trump had stuck to the “good Republican” script the way Bush had.