united states v. berger

The matter of United States v. Berger, 1:05-mj-00175-DAR-ALL, venued in the U.S. District Court for the District of Columbia ("DDC")is not my normal subject matter, as I don't often post on law - if at all, these days - but is one of great interest to me since it's being prosecuted by the counterintelligence division of the Department of Justice.  On Instapundit, Pr. Reynolds posted that many are wondering why Berger, the former National Security Advisor to Clinton accused of violating various national security acts with his alleged misdeeds at the National Archives, has yet to be sentenced (apparently he was previously scheduled to be sentenced on July 8, 2005).

I reviewed PACER (Public Access to Court Electronic Records, the nationwide electronic database of Federal pleadings, orders, and opinions) for DDC and pulled up the docket report for Sandy Berger's case.  Berger was to be sentenced pursuant to a plea agreement set up on April 1, 2005 (I'll leave the April Fool's Day witticisms to you) with USDOJ that apparently had cooperation with the National Archives on some other matter as a condition of the plea.  Berger's cooperation is apparently still ongoing, and therefore the USDOJ requested, without opposition by the defendant, an adjournment of sentencing until August 24, 2005.  During that time, according to the USDOJ motion (attached hereto as berger.pdf), Berger will wrap up his cooperation (I imagine that Berger's cooperation will take the form of explaining how NARA missed the top secret documents hanging out of Berger's "gold toes").  For further information, I've also attached hereto Berger's Factual Proffer (bergerproffer.pdf), submitted pursuant to the plea agreement.

As a side note, I love PACER.  It's a great resource for lawyers to use to learn their practice.  I often will check out briefs in other cases just to improve my practice, plus, in my own cases, I can keep track of every pleading ever filed without a waste of paper. 

Update 1: 

An unnamed source told me that I might get Insta-linked on this post.  That being the case, please feel free to look around.  I used to do a lot more writing (as with this photoessay, independence day), but am now mostly devoted to photography, particular of the coasts of New York and New Jersey (I have the Quixotic goal of showing that Jersey is not as ugly as it's made out to be).  Here's a link to those photos.  If you're into photography, though, you really should check out the following three other photoblogs (first  mostly reviewed in my Picture Envy posts):

1. Chromogenic.net - my review of his shot fogport is here
2. No Traces - my review of B Sides from No Traces is here
3. Mute - I haven't gotten to Mute yet, but this post makes me realize that I need to do so soon.

Update 2:
"How's that for a slice of fried gold?*"

Holy crapola.  In the last hour, I've received 2,000 more hits than I normally receive per week.  Thanks to all the Instapundit visitors for stopping by.  Please feel free to embark on a political firestorm in the comments (just mind the furniture, if you would be so kind; that piece over there is an authentic late century ikea.... oh hell, bash it to particle board dust). 

Thanks to Murdoc Online for its link to united states v. berger.  Murdoc wonders there why little mention is made of Berger's plea bargain.  Good question. 

Thanks also to Conservative Outpost, which links to united states v. berger in its response to the Karl Rove matter. In another post, Conservative Outpost quotes a powerfully convincing speech from Sen. Cornyn, R-TX, a former District Court Judge and Justice of the Supreme Court of the State of Texas, on the confirmation process for the successor to Associate Justice O'Connor.  I love these glimmers of thoughtful political rhetoric that surface now and then, regardless of the politics of those who utter them. It makes me long for the days when statesmen wrote/spoke as well as Lincoln, the Roosevelts, or the last funny president, Calvin Coolidge.  I will take issue with one part of Sen. Cornyn's speech, however. 

Judges in our Federal system do not make law, or I should say are not supposed to make law. The laws are made for them and indeed for the entire Nation by the people's representatives in the form of statutes enacted by the Congress and in the form of the Constitution that we the people have ratified to govern our affairs. These are legal texts and they are supposed to tie the hands of judges in our system. Judges in our system are not supposed to make up the law as they go along. They are simply supposed to apply the laws made by the people to the facts at hand.

If the law is to change, it is because the people are the ones who are supposed to change it, not because judges do. Federal judges, again, have no general common law-making power.

This is technically inaccurate.  A situation could arise where a matter is brought before a federal district court due to that court's diversity jurisdiction (which, prior to Erie R.R. v. Tompkins, 304 U.S. 64 (1938), was a federal common law question) or federal question jurisdiction  that is based on or includes a question of common law liability.  Negligence is a classic common law question - was there a breach of a duty to endeavor to act in due care that was the proximate cause of an injury - that could arise in a federal court by virtue of diversity jurisdiction (heck, Erie itself was a negligence case).  I'm guessing this is probably more relevant when addressing federal cases where the federal laws concerning longshoremen or mariners keeps the case out of state court, but, nonetheless, there are federal common law questions.  Most of the time, federal courts will follow the law of the state, but there are instances where I can imagine that a question of first impression - one that no court has ruled on - goes before a federal judge before it goes before a state judge.  In such an instance, there would necessarily be a federal common law decision. 

In any event, here's to hoping that the next associate justice is a legal scholar.  Get someone "wicked smart," as they say.  Why not Posner?  Why not former U.S. Attorney Mary Jo White?  U.S. District Court Judge  Martini (a former congressman)?  William Weld (an amazing mind, based on my personal interactions with him)?  Hey, if you want to go leftist, why not Bill Bradley (another immensely smart man)? 

 

Infidel Cowboy gets a little Hunter S. Thompson-esque in his "isn't his funny" line of thinking. 

*via the brilliant Shaun of the Dead.

 

Comments

[countertop]

Nice pictures.

Once you get out of the brown blighted areas, New Jersey is really a very picturesque place. You should do less pictures of the shore though, and explore the interior - especially the small towns in the Northwest and Southwest corners of the state. Its small town America at its finest.

Now, if only they would get their crazy politics fixed (and recognize the second amendment) I could get out of the DC area and move back (I live in Virginia which has better politics but no small town feel)

[Sluggo]

Tall cotton, there, bro.

[SAS]

Confusion abounds. Berger is cooperating in an investigation of himself? That doesn't make sense. Is there a bigger fish to fry?

[TPB, Esq.]

No, I suspect he's telling them what he took, how he took it, how he got past security, and how his misconduct can be avoided in the future. While it's not inconceivable that Berger can flip someone bigger than him, I'm not sure USDOJ wants to go down that road again.

[Tom T.]

As a small nitpick, please note that, according to the signature block on the DOJ motion, the case is being prosecuted by the Public Integrity section of the Criminal Division. There may be counter-intel attorneys involved, but they don't appear to be the actual prosecution team.

[pops]

congrat, and really, from the bottom of my black little heart - congrats and let me just say, baby needs milk.

[pops]

congrats, and really, from the bottom of my black little heart - let me be the first to say, baby needs milk.

[pbswatcher]

Item 7 of the stipulated facts in the bergerproffer.pdf says the 9/11 commission "received copies of EACH document." Does EACH mean each of the five stolen? In which case Berger is really an idiot. Or does it mean each of the two remaining after he got done chopping? In which case it's pretty clear what he was up to.

[TPB, Esq.]

Tom, check out page three of the proffer. The top name for the Dept. of Justice is John Dion, Counterintelligence Division Chief, then Noel Hillman of the Public Integrity Division.

When I was in law school, I studied professional ethics from one of the Public Integrity Division trial attorneys, an incredibly fun, wild guy (who used to take part in undercover investigations) who explained that Public Integrity gets involved basically when government lawyers or high powered lawyers are being investigated.

PBSwatcher, I have no idea which documents are being referenced. The government and the defendant have done a good job of not describing the documents in question, and I'm pretty glad they did. I don't want to violate the National Security Act by looking at a case docket.