The mystery of how the Justice Department operates becomes more baffling the more I read. “Scooter” Libby was found guilty of failing to remember events correctly, or failing to correctly tell investigators what he knew. He was sentenced to 30-37 months in jail followed by two years of probation and fined $250,000. Sandy Berger stole classified documents from the National Archives, and was sentenced to two years of probation and fined $50,000 after pleading guilty to a misdemeanor.  Berger was supposed to be finding information that would be important to the 9/11 Commission. I speculate that he instead took the opportunity to remove documents that might be embarrassing to him or perhaps the Clinton legacy. One would think that stealing documents from the National Archives would be a serious crime, and that the crime would be even more serious if the purpose was to obstruct the work of the 9/11 Commission.  It apparently was a mere misdemeanor.

Clinton had asked Berger, who had been his National Security Advisor, to testify to the Commission. Berger was allowed access to classified documents in a secure reading room during four visits to the National Archives to prepare for his testimony. He was caught in the act of stealing documents. The incident was reported to the Justice Department by Paul Brachfield, the Inspector General of the National Archives. Brachfield became concerned about a lack of action from DOJ, and arranged a meeting with a DOJ trial attorney to emphasize he was concerned Berger was obstructing the Commission’s investigation. An article sent to me by my Sister-in-law observed that DOJ began to investigate after Brachfield persisted.

There is no way of knowing how many classified documents Berger cleaned out of the National Archives during the visits before he was caught. DOJ apparently wasn’t curious about what he removed, because they decided there was no need for the lie detector test that was a condition of Berger’s plea bargain.  They conducted a multi-million dollar investigation about “who outed Valerie Plame” (even after they learned whodunit early in the investigation and didn’t prosecute that person), but apparently weren’t curious about what Berger was up to.  It’s a mystery. I’d be interested if there is a reader who can explain this to me and/or can set me straight.

People who have read my opinions about the FBI raid of Rocky Flats and the actions by the Justice Department in the months and years to follow probably won’t be surprised that I am interested in how our government applies what they call justice. The manner in which the “Plame affair” evolved is an interesting example. The story began with the January 28, 2003 State of the Union Address by President George W. Bush in which he said, “The British government had learned that Saddam Hussein recently sought significant quantities of uranium from Nigeria.” State Department official Joseph C. Wilson travelled to Nigeria to investigate the claim for the CIA, and wrote a series of articles disputing what the President had said. One article published in the New York Times was titled “What I Didn’t Find in Africa.” There was an extensive investigation after a Robert Novak column about the dispute identified Valerie Plame to be Wilson’s wife and a CIA operative. The investigation was to determine the source of Novak’s information, and whether that person had violated the Intelligence Identities Protection Act. I. Lewis “Scooter” Libby, who had been Dick Cheney’s Chief of Staff, was the only person tried, and he was tried for perjury and not for being the Novak’s source. Patrick Fitzgerald, the Special Counsel who led the investigation is said to have known from early in the investigation that Deputy Secretary of State Richard Armitage was the source of Novak’s information, but Armitage was never indicted.

The Novak column created a maelstrom that consumed media reporting and partisan politics. President Bush promised that anyone in his administration responsible for revealing Plame’s identity would be held accountable, and the investigation focused on Vice President Cheney, Libby, Karl Rove, Press Secretary Air Fleisher, and many other assorted Bush Administration staff members and assistants. Cheney’s many enemies were rooting for his name to come out on top. However, the facts didn’t play out to be as sinister as the original stories implied. Novak was quoted as saying, “I learned Valarie Plame’s name from Joe Wilson’s entry in ‘Who’s Who in America’.” He confirmed the Wilson/Plame connection in a conversation with Richard Armitage. Karl Rove was eventually identified as Novak’s second source about Plame. Rove testified to the grand jury that he had learned of Plame’s CIA affiliation from journalists. Novak had told Rove what he knew about Plame, and Rove responded, “Oh, you’ve heard about that.”

Armitage was aggressively investigated, and was directed to divulge his role to no one, including President Bush. He is said to have been very distressed about the matter, prepared a resignation letter, but stayed in the State Department for some time to prevent speculation if he departed suddenly. He fully cooperated with investigators without legal counsel, and was not indicted because investigators believed he had been honest with them and hadn’t considered Plame to be an undercover agent when he talked to Novak. Armitage was advised in February 2006 that he would not be charged.

Fitzgerald intended to indict Rove until he learned that Rove had instructed his aides to “find any records of that contact” in reference to his off-hand comment to Novak. Libby wasn’t as fortunate. Libby had learned of Plame’s identity from Vice President Cheney in early June 2003. He discussed her with several other government officials and at least two reporters in early July 2003. He originally told the grand jury he had first heard about Plame from reporter Tim Russert, and Russert testified that his discussion with Libby about Plame came after the Novak column.

The jury was torn about what to decide about Libby. One said that they had commented they wished they weren’t judging him. “We don’t like being here…What we came up with …was that Libby was told about Mrs. Wilson nine times…We believed he did have a bad memory, but it seemed unlikely he would not remember…after being told so many times.” One woman on the jury cried when the verdict was announced, and said she hoped Libby would eventually be pardoned by President Bush. She also said, “It kind of bothers me that there was this whole big crime being investigated and he got caught up in the investigation as opposed to the actual crime that was supposedly committed.” I don’t think there is a need to add anything to that comment.