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Tuesday, April 05, 2005

Cornyn out of context

I reproduce here an email I just sent to Profs. Glenn Reynolds and Ann Althouse based on their two recent posts about Texas Senator John Cornyn's so-called "stirring up hatred against judges":


Profs. Reynolds & Althouse, with due respect, I think you are buying in wholesale to comments of others who are taking Sen. John Cornyn's comments WAY out of context, and thereby propagating and giving additional credence to a misimpression.

John Cornyn, as you probably know (but may have forgotten) was the Attorney General of Texas and an Associate Justice of the Texas Supreme Court before he was elected to the US Senate.  In both of those capacities, he was extremely responsible and well-balanced.  As the chief law enforcement officer of the State of Texas, he certainly had no record of encouraging lawlessness.  He has no history of demagoguery.  Lumping him in with nuts at either the left or right extremes simply isn't justified based on his past record.  He's neither a Tom DeLay nor a Robert Byrd.  There's no plausible basis to argue based on his own history that by speculating about a possible cause-and-effect link, he's sending a "coded message" approving and endorsing violence against judges. 

Prof. Althouse comments (and Prof. Reynolds quotes approvingly) that "[i]t is really a shame how little people understand of the reasons judges decide cases the way they do."  With due respect, Prof. Althouse, ex-Justice Cornyn may have a better understanding than you, Prof. Reynolds, or I (judicial clerkships notwithstanding).  I don't think you should be so quick to impute to this senator an intent to encourage violence against judges like those among whom he recently sat himself, especially given his own track record of combatting violent crime as a Texas Attorney General.

And in context, Sen. Cornyn's remarks are actually CONSISTENT with your observation, Prof. Althouse.  He's not commending or endorsing the people who "understand [little] of the reasons judges decide cases the way they do."  But he's certainly commenting on the fact that many people don't understand why judges decide cases the way they do, and observing, admittedly speculatively — with concern and alarm, not approval — that the misunderstandings of some of those people may turn to frustration that could potentially turn to violence.  And how does he characterize these hypothetical misunderstandings and actions?  As being "certainly without any justification"!

The left half of the blogosphere — including posts you've linked, Prof. Reynolds — are painting Sen. Cornyn's comments as "endorsing violence against state and federal judges."  But that's not at all what he actually said, even in the truncated quotes contained in the WaPo article linked by Prof. Althouse.

One can make the argument that judicial activism breaks down public respect for the judiciary, and the further argument that decreased public respect for and increased public frustration with the judiciary might encourage fringe elements to break the law.  One can lament that as a potential consequence without endorsing that consequence.  One can lament that without encouraging violence.  One can indeed condemn violence as an inappropriate solution to the problem; if Sen. Cornyn's comments can be faulted, it's only for failing to condemn violence more strongly than he did.  But in fairness, it probably never occurred to him that anyone would misconstrue his comments as being an endorsement of violence against judges.

Neither of you two are suckers.  But with due respect, I think you've both been suckered, badly, this time.  I urge you to think twice.  And read the whole speech — link here — which includes statements like this one:

This is not a blanket condemnation. I hope I have made it clear that I respect the men and women who wear the robe, but having been a judge myself I can state that part of the job of a judge is to criticize the reasoning and the justification for a particular judgment. I certainly did that daily as a state supreme court justice. And I might add that people felt free to criticize my decisions, my reasoning and justification for the judgments I would render. That is part of the give and take that goes into this. I make clear my respect generally for the Federal judiciary, including the U.S. Supreme Court.

Then tell me truthfully if you think the WaPo linkage of this speech to Tom DeLay's veiled threat of impeachment-type retaliation against the Schiavo judges is fair, or a cheap shot.  I think it's definitely the latter.

Best regards,

- Bill Dyer a/k/a Beldar


Regarding quoting out of context, here's what came immediately before the bit that the WaPo quoted:

I believe the increasing politicization of the judicial decisionmaking process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe. That is a national tragedy.

Does describing a "lack of respect for some of the people who wear the robe" as a "[n]ational tragedy" encourage violence against judges?

And here, from the very beginning of the speech:

Before I start, let me just say I have the greatest respect for our judiciary, the men and women who wear black robes — whether it is on a municipal court or a county court or a district court like I served on in San Antonio, Bexar County, TX, for 6 years, or those who work on appellate courts, whether State or Federal, like I did on the Texas Supreme Court for 7 years.

For 13 years of my professional life, I have worn a black robe, judging cases, first presiding over the jury trials, and coming to have a great deal of respect not just for those judges but for men and women who serve on juries and decide hard cases, cases which, perhaps, they would prefer not have to sit in judgment of, some involving even the death penalty.

I don't want anyone to misunderst[an]d what I am going to say as being a blanket criticism of either the judiciary or the U.S. Supreme Court, in particular. From my own experience, judges, although they have important jobs to do, are no different than you and me. What I mean is they are mere mortals, subject to the same flashes of mediocrity, sometimes making mistakes, and sometimes displaying flights of brilliance. These are not, as some people have suggested, high priests able to discern great truths that you and I are unable to figure out. They are generally very intelligent, with outstanding educational pedigrees, but none of us have agreed that judges, particularly Federal judges, can be or should be a law unto themselves.

Demagoguery? A call to violence?

Hardly. Actually a damn good speech. But read the whole thing for yourselves, please, before buying into anyone's characterization of it, including mine.


UPDATE (Tue Apr 5 @ 2:30pm): Argh. Jonah Goldberg's been suckered too. Doesn't anyone bother to read before blogging anymore? It took me all of ten seconds to find the speech on Cornyn's website and three minutes to read it start to finish. I expect better than this from these folks, frankly. You should too.


UPDATE (Tue Apr 5 @ 3:55pm): To his credit, Josh Marshall of  Talking Points Memo responded promptly and very politely to my emailed request that he post a link to Cornyn's actual speech, although without quoting any of the passages that his earlier posts and the WaPo article left out:

To me, the offending passage — suggesting a connection between judicial activism and violence against judges — speaks for itself, notwithstanding the fact that other passages say (what else do you expect?) that such violence cannot be justified.

But, no need to take my word for it. Read the context and decide for yourself.

My reading of the context is very different, obviously, but I thank Dr. Marshall for his intellectual honesty in posting the link to the speech so his readers can make up their own minds.

John Hawkins likewise faults Prof. Reynolds for over-reacting to the WaPo excerpt. If the WaPo excerpt were fair — if, as Prof. Althouse's post's title suggests, Sen. Cornyn was "stirring up hatred against judges" — I'd have had a similar reaction to theirs.

But contrary to Prof. Althouse's update, I don't believe that read in context, Sen. Cornyn's speech "legitim[ates] hostility toward judges," or that "portraying the judges as out-of-control power-wielders" is in any way an endorsement of violence against judges. Nor do I agree that "he's expressing understanding for people who snap and express hostility with violence" — certainly not understanding in the sense of condoning, much less endorsing, that violence. Perhaps Prof. Althouse will rethink after re-reading the speech and her post, and then sleeping on it. And in any event, I don't think it's fair for bloggers — left, right, or center — to quote selectively from the WaPo article without linking the actual speech and/or recognizing that it requires an intuitive leap to get from the text of the speech (even as excerpted in the WaPo article) to the conclusion that Sen. Cornyn was supporting or encouraging violence against judges. Such a leap might be arguable if Sen. Cornyn's career otherwise supported the notion that he's a rabble-rouser who speaks in code to encourage lawlessness. But that's simply not the case.

Jonah Goldberg was also prompt and kind in linking my post in response to my email, and K-Lo has now linked the full text of Sen. Cornyn's speech. My thanks to them both.

And Prof. Reynolds has also been kind enough to link this post and, much more importantly, Sen. Cornyn's speech in an update to his original post. Prof. Reynolds thinks the speech was rambling and asinine; I respectfully disagree. He asks: "[W]hy drag in the violence-against-judges thing — when, as Jonah [Goldberg] points out, there's no reason to associate any of these events with the kind of stuff that Cornyn is complaining about — at all?" Well, to begin with, Sen. Cornyn himself, even as quoted selectively in the WaPo article, questioned whether there's any cause-and-effect linkage; i.e., he was musing, speculating, wondering. Why was he wondering? I suspect it's because he identifies with judges who are wondering if there's any way to explain the increased violence. Should he have avoided speculating? Should he have forcefully condemned any possible tendencies for disrespect to translate into violence? Maybe. But that's a whole different kettle of fish than encouraging violence against judges, which is the way the speech has been painted.

Via Prof. Reynolds' update, I see also that Jon Henke has up a post with many links from the left and the right, and James Joyner has weighed in briefly as well.

I stress again: Truth is the antidote to confusion. Hyperlinks are your friend. Read the speech, and decide for yourself.


UPDATE (Tue Apr 5 @ 7:24pm): K-Lo has Sen. Cornyn's clarification on the Senate floor tonight:

Mr. President, I rise to follow up on some remarks that I made on the floor of the Senate on Monday. A full transcript of those remarks, which had to do with judges and recent decisions of the United States Supreme Court, are available on my official website for anyone who would care to read them.

As a former judge of 13 years, who has a number of close personal friends who still serve on the bench today, I am outraged by recent acts of courthouse violence. I certainly hope that people will not construe my remarks on Monday otherwise. Considered in context, I don’t think a reasonable listener or reader could.

As I said on Monday, there is no possible justification for courthouse violence. Indeed, I met with a federal judge in Texas just this past week, to make sure that we are doing everything we can to protect our judges and courthouse personnel against further acts of violence.

But let me be clear: I am not aware of any evidence whatsoever linking the recent acts of courthouse violence to the various controversial rulings that have captured the nation’s attention in recent years.

My point was, and is, simply this: We should all be concerned that the judiciary is losing the respect that it needs to serve the American people well. We should all want judges who will interpret the laws fairly – not impose their own personal political views on the nation. We should all want to fix our broken judicial confirmation process. And we should all be disturbed by overheated rhetoric about the judiciary, from both sides of the aisle. I regret it that my remarks have been taken out of context to create a wrong impression about my position, and possibly be construed to contribute to the problem rather than to a solution.

Our judiciary must not be politicized. Rhetoric about the judiciary and about judicial nominees must be toned down. And our broken judicial confirmation process must be fixed, once and for all.

Bravo to Sen. Cornyn and his staff for the prompt reaction. And bravo to my fellow bloggers, left and right (and now including Prof. Althouse), who've linked to the full transcript from yesterday.

Now it's back to trial prep for Beldar — another trial starting on Monday, should be a barrel o' monkeys!


UPDATE (Tue Apr 5 @ 10:04pm): One last bit that I can't resist, despite the risk of seeming picky or self-righteous. I have enormous respect for both Profs. Althouse and Reynolds, and give both of them credit for responsiveness and for being willing to look at additional context. But I just can't quite swallow Prof. Althouse's parting remarks, quoted approvingly (along with the text of Sen. Cornyn's clarification) by Prof. Reynolds:

Politicians know the spiciest part of a speech is the sound bite. Edit it out if you don't mean it.

Sure, that's great advice in general. But exactly what made the bit initially quoted by both of the good professors and others into a "sound bite"? This wasn't something said on the Capitol steps to a pack of reporters from the networks who could be expected to pick fifteen seconds for the nightly newscast. Rather, it was one paragraph out of a long speech given on a mostly-empty Senate floor and broadcast only on C-SPAN. And that paragraph was an aside, by no means the major topic on which Sen. Cornyn was speaking. There's no reason to believe that Sen. Cornyn himself intended, or expected, this paragraph to be "spicy." He's not much of a show-horse as politicians go, but heck, even he knows how to deliver a sound bite on cue — and the difference between a C-SPAN camera and one from CNN or ABC.

No ma'am and no sir, this became a "sound bite" only when yanked out of context by others, including the WaPo reporter, and then it became a big deal when that little bit of text was widely reprinted and broadcast without the surrounding context — including by folks who are generally a bit more skeptical and generally better than they were today in checking out the background facts and context. There's a big difference between a "sound bite" deliberately sculpted by a politician for mass rebroadcast and a "gotcha" (or attempted "gotcha") drummed up by others like this one was.

As for "editing it out if you don't mean it": Is this supposed to be a proscription against any speculation? Against musing in public? Because that's all Cornyn was doing. He didn't mean the misinterpretations some folks put on that paragraph, and he didn't say what he was mischaracterized as saying (i.e., even "hinting" at approval of violence against judges). Instead, in the very first section of the speech, Sen. Cornyn stressed his own respect for the judiciary in general, and pleaded for his comments not to be misunderstood. Immediately before the criticized language he referred to the decline in respect for the judiciary as a "national tragedy"; in the midst of the challenged language, he disclaimed a direct cause-and-effect relationship; and in the end of the challenged passage he had the "without any justification" language. Later in the speech, he repeated his sympathetic and empathetic remarks about the judiciary. And throughout, with the exception of this one paragraph, he talked about politics, not violence. But despite all this, obviously he was misunderstood — or misrepresented, intentionally or not — anyway.

Just how "gotcha-proof" can a politician make his speeches? Is he supposed to have someone holding up cue cards by his side, anticipating and dispelling every possible misinterpretation of what he's saying as he's saying it? And shouldn't that politician's past career — in Sen. Cornyn's case, as a judge and law enforcement official — confer at least some marginal protection against being misinterpreted as an advocate of violence? This whole thing smacks of the tempest in a teapot last fall over Dubya's "you probably can't win it" comment about the Global War on Terror. My immediate reaction to that was, "That can't be right — whatever else you think about Dubya, there ain't nobody who thinks he's a good enough actor to have concealed that so long if it was, in context, his real view!" And sure enough, the public didn't buy into that either; the quote disappeared as an issue by the time of the election, as Sen. Cornyn's quote will by the time of the first real Senate fight on judicial confirmations.

I guess these are rhetorical questions. I'm not fishing for mea culpas or abject apologies, and I'm certainly not suggesting bad faith on the part of those who posted without reading the whole speech. Indeed, I'm gratified that today's "blog swarm," to use Hugh Hewitt's term, is fizzling out; I view the whole episode as an example of the self-correcting tendencies of the blogosphere.

And there endeth the lesson, at least as far as longwinded Beldar is concerned. What you make of the lesson, if anything, gentle readers, is up to each of you.

Posted by Beldar at 02:14 PM in Law (2006 & earlier) | Permalink | Comments (45)

Saturday, April 02, 2005

Beldar on Berger: If he comes back, blame politicians, not the prosecutors

When I read of Sandy Berger's plea bargain, I wasn't immediately offended.

I started with my usual presumption that our federal prosecutors who negotiated and approved the deal knew well the legal thresholds that they would have had to meet to obtain a conviction for a more severe crime or a higher sentence. I presumed as well that they were intimately familiar — far more than I or the general public could be — with the specific facts disclosed through their investigation. In every criminal prosecution that pleads out (and for that matter, in every civil lawsuit that settles), the advocates are required to make very subjective predictions and judgment calls on the basis of factors largely hidden from public view — how will this witness and that witness hold up on cross? what emotional hooks in my case and my opponent's are likely to grab with the jury?

At the press conference announcing the deal, no one's throwing bricks back and forth, and therefore the prosecution's case as there described usually sounds a lot cleaner and more persuasive than what would actually have emerged from the messy smoke, heat, and occasional light of a trial. But I recognized — as I'm sure the prosecutors did — that Berger would have been certain to have had essentially unlimited resources and legal talent available for his defense, plus a sympathetic MSM and an artful PR campaign waged by (unfortunately) well-practiced spinners and sycophants.

I also was inclined to defer to the prosecutors' judgment about striking an appropriate balance between zeal to enforce our national security laws and realpolitik concerns: On the one hand, Berger was a career public servant of at least some merit, and we're not talking about selling nuclear secrets to Iran. On the other, Berger only had access to the documents that he stole and destroyed because he'd undertaken a public trust; and even if the only consequences of his betrayal were political ones, such betrayals (perhaps especially such betrayals for such venial purposes) ought to be conspicuously punished.

It's a conviction, I thought to myself — albeit only for a misdemeanor, without jail time, and with (in context) a trivial fine — but a final, definitive judgment of conviction that isn't subject to years of appeals. Berger is now an admitted criminal. There's been a symbolic stripping of his security clearance, which heaps justifiable shame on the man. His place in history will ultimately be as a joke punchline, I thought. Onward and upward, I thought, and attaboy to the prosecutors for wrapping this up.  And when I read the first reaction of my blogospheric friend and fellow lawyer John H. Hinderaker (a/k/a Hindrocket) over at Power Line, I thought he was being reflexively overcritical in writing that Berger had "got[ten] away with a criminal cover-up" through the plea.

But today I read the WaPo article on the plea bargain. And then I read Hindrocket's expanded analysis in which he persuasively explains why "[c]asual readers of the news will have no idea what to make of Sandy Berger's guilty plea," and why their impressions are likely to be badly at odds with the actual facts. My blood ran cold when I read these two sentences:

One aspect of Berger's sentence that seems almost humorous is the fact that his security clearance is suspended for three years. He wasn't going to need it during President Bush's second term, in any event, and he'll have it back in time for the new Democratic administration that, he hopes, will begin in 2009.

It's not a felony conviction. The buffoonish schtick — "he stuffed the documents into his pants and his socks, fer pete's sake, har har har!" — is what will stick in the public memory, not the federal criminal conviction for a confessed and indisputable breach of a public trust. And the groundwork has been laid for what suddenly seems to me to be a very likely PR campaign by the once-and-would-be-future Clintonista spinmeisters:

"That crazy Sandy, what a wonk! Yeah, he had that slap on the hand, but hey, he took his medicine like a mensch, Senators — and look at his career in context! Can you let this silly misstep from years ago, during the crazy post-9/11 hysteria, disqualify him from distinguished service in the Hillary Administration? Will you deny the public the benefit of his expertise and his insights for such a trivial matter? Why, that would be crass partisanship, Senators. The President and the public have forgiven him; indeed, the President pardoned him on her first day in office. Onward and upward, Senators!"

I'm still not willing to second-guess the prosecutors for approving the plea bargain. Their concerns ought not to have been, and presumably weren't, absolutely ensuring Berger's everlasting political destruction. And my objection to the result of the plea bargain is chiefly that it may fail to accomplish that destruction. As the WaPo story reports, the prosecutors did their job in requiring that Berger admit on the record to his intent, and in establishing that what Berger destroyed were non-identical copies that might have contained unique "marginalia" embarrassing to the Clinton Administration:

The terms of Berger's agreement required him to acknowledge to the Justice Department the circumstances of the episode. Rather than misplacing or unintentionally throwing away three of the five copies he took from the archives, as the former national security adviser earlier maintained, he shredded them with a pair of scissors late one evening at the downtown offices of his international consulting business.

The document, written by former National Security Council terrorism expert Richard A. Clarke, was an "after-action review" prepared in early 2000 detailing the administration's actions to thwart terrorist attacks during the millennium celebration. It contained considerable discussion about the administration's awareness of the rising threat of attacks on U.S. soil.

Archives officials have said previously that Berger had copies only, and that no original documents were lost. It remains unclear whether Berger knew that, or why he destroyed three versions of a document but left two other versions intact. Officials have said the five versions were largely similar, but contained slight variations as the after-action report moved around different agencies of the executive branch.

So if Sandy Berger indeed still has a future as a political appointee, that will be the fault of the politicians, not the prosecutors. I therefore can't quite join in Hindrocket's conclusion that the plea bargain itself is "a disgrace": Maybe it's light, but maybe it reflects prosecutorial judgments based on facts and subjective evaluations that neither Hindrocket or I have available to us — and it beats the hell out of an acquittal in any event!

But for what it's worth, if my nightmare scenario comes to pass — if the Senate is ever again asked to confirm Sandy Berger for any public post — I believe it would be wrong for the opposition to filibuster his nomination. Oh, no — he'll deserve an up-or-down vote on the merits, with every senator going on record! But as a matter of principle, that vote ought to be, must be, against confirmation. The Constitution requires the Senate either to consent, or to withhold consent. But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.

He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.

Bookmark this post for 2009 — just in case. You might want to email a link to it to your senators then.


UPDATE (Sat Apr 2 @ 8:45pm): Two more news stories leave me a bit confused. Per the NYT:

Some Republican leaders have speculated that he took the documents because he was trying to conceal material that could be damaging to the Clinton administration. But Noel L. Hillman, who leads the Justice Department's public integrity section, said after the hearing on Friday that the department's investigation had found no evidence that Mr. Berger had intended to hide anything from the Sept. 11 commission. Indeed, the commission had access to all the original reports on the 2000 threat assessment, Mr. Hillman pointed out.

And per a new WaPo article:

The Justice Department said yesterday there was no evidence that former national security adviser Samuel R. "Sandy" Berger was trying to conceal information when he illegally took copies of classified terrorism documents out of the National Archives in 2003....

Noel L. Hillman, chief of the Justice Department's public integrity section, said Berger "did not have an intent to hide any of the content of the documents" or conceal facts from the commission investigating the Sept. 11, 2001, attacks....

This leaves me wondering whether Mr. Hillman's comments may have been literally true but misleadingly spun. If, as the previous WaPo story indicates, what Berger took and destroyed were non-identical copies — themselves photocopies of a memorandum whose pristine version appears several times in the archives, but bearing, on those unique and irreplaceable versions, handwritten comments ("marginalia") that comprised various individuals' comments on and reactions to the text of the original memorandum — then there may literally have been "no evidence" left in existence to prove precisely what Berger destroyed. There would therefore be no "direct evidence" to directly prove what has been lost, shredded by Sandy Scissorshand. And his defense team would be able to argue that the prosecution was simply speculating when arguing that anything significant was on the non-identical copies. And that may have been what Mr. Hillman meant, in context, when he used the words "no evidence." I'd very much like to see his full statement, if anyone can find it online; it's not yet on the DoJ website's press release section.

However, if, as I suspect was true, the Archive's standing policy was to preserve (and to number and log) precisely one version of each "non-identical copy," then there might indeed be a compelling circumstantial inference that there was at least some marginalia on the documents that Berger destroyed. But whether trivial (like a doodle) or significant (like "Holy cow, President Clinton is letting Osama get away!") would still be a matter of speculation without direct evidence (that is, without the destroyed documents themselves).

But not all evidence is direct evidence, and circumstantial evidence can sometimes be incredibly probative. If there were no marginalia at all on what Berger destroyed, or if it was only trivial marginalia, then why did he destroy some but not all of the documents he'd stolen? Berger may be a geek, but he's also a deliberate thief and admitted spoliator of evidence, and whatever he did was not random. It was purposeful. Combine that with the subjective motive that can also be reasonably inferred to be possessed by someone in Sandy Berger's position, and a jury might, repeat might, have drawn an inference that he destroyed what he destroyed precisely because it was damaging (even if we'll never know how precisely how damaging).

I'm still not persuaded that the prosecutors screwed up. The distinctions I'm drawing in this post about non-identical copies, spoliation, direct versus circumstantial evidence, etc., are familiar to good trial lawyers. I have no reason to doubt that the prosecutors grasped those distinctions, and factored them into their judgment call on whether to go to trial or offer the plea bargain. I do wonder, however, whether this "no evidence" bit is being spun — hard and misleadingly — by a sympathetic MSM to make Berger look significantly better than he deserves.


UPDATE (Mon Apr 4 @ 6:05pm): The official DoJ press release doesn't clear up my confusion. Key paragraphs:

According to the facts admitted during his guilty plea, Berger was reviewing classified documents at the National Archives in July, September and October of 2003 in connection with requests for documents made by the National Commission Investigating Terrorist Attacks Upon the United States (the 9-11 Commission). On September 2, 2003, and again on October 2nd, Berger concealed and removed a total of five copies of classified documents from the Archives. The documents were different versions of a single document. Berger, who possessed a United States government security clearance and was aware of the laws and rules regarding classified documents, knew he was not authorized to remove the classified documents from the Archives.

Berger took the documents to his office in the District of Columbia, where he destroyed three of the copies. Soon after the October visit, the Archives discovered that documents were missing and, two days later, contacted Berger. Initially, Berger did not tell the Archives staff that he had taken the documents but later that night told Archives staff that he had “accidentally misfiled” two of them. The next day, he returned to Archives staff the two remaining copies of the five documents he had taken during the September and October visits. Each of the five copies of the document was produced to the 9-11 Commission in due course.

The only way I can make sense of the last sentence is to presume that the Archives — contrary to Berger's hope and expectation when he destroyed the three nonidentical copies — actually did have additional photocopies of those same versions with the same marginalia. If so, that would undercut my speculation that DoJ's Mr. Hillman was taken out of context on his "no evidence" statements. Perhaps Berger was stupid enough to think that destroying the three nonidentical copies would hide the facts of his crime, if not the details of the marginalia on those specific pages. But if so, then why didn't he destroy all five? Why return two?

My friends from both sides of the criminal defense bar tell me that it's a mistake to presume rational behavior from criminals. And I suppose it's possible that the confusion left about what Berger actually destroyed, and why, is a product of national security concerns; there may have been some deliberate ambiguity on the part of the prosecutors in describing the facts. In any event, the facts that have been described — and conceded by Berger as part of the plea bargain — ought to disqualify him from further public service, as a matter of political good sense if not as a solid and legally enforceable penalty.

Posted by Beldar at 12:02 PM in Global War on Terror, Law (2006 & earlier), Politics (2006 & earlier) | Permalink | Comments (25)