The End of the Line for the Sandy Berger Investigation

By giving up his law license, Berger avoids more questions.

By Byron York
http://www.nationalreview.com
May 18, 2007 4:00 PM


There’s been some confusion in the last few days about the latest development in the classified-documents-theft-and-destruction case of former Clinton national-security adviser Samuel Berger. When Berger announced that he had agreed to give up his law license, some readers wondered, perhaps hopefully, whether that meant the Justice Department was still pursuing the case — prosecutors still have the right to subject Berger to a polygraph examination, even after his guilty plea, $50,000 fine, agreement to perform community service, and three-year ban on handling classified material — or that perhaps Berger was under some sort of pressure from congressional investigators.

The answers are no and no. Berger’s voluntary disbarment has nothing to do with the Justice Department or Capitol Hill. It is entirely the result of Berger’s desire to head off an investigation by the District of Columbia Bar. By giving up his license voluntarily, before an investigation was set to begin, Berger effectively closed another probe into his activities.

Word of Berger’s action came Tuesday, when his lawyer, Lanny Breuer, released this statement from his client:


Three years ago, I pleaded guilty and accepted the penalties sought by the Department of Justice.

I recognized then that my law license would be affected, and I have decided to voluntarily relinquish my license. While I derived great satisfaction from years of practicing law, I have not done so for 15 years and do not envision returning to the profession.

I am very sorry for what I did, and deeply apologize.



Berger’s agreement stopped a process that was about to begin in the DC Bar. The Bar’s counsel, Wallace Shipp, tells National Review Online that the case is confidential — Shipp is not allowed to give out any information about it — but he did outline the process the Bar uses to investigate allegations of wrongdoing. An investigation begins when a complaint is filed, or when the Bar itself becomes aware of some allegations of misconduct a particular lawyer. “Generally, our investigations originate with a complaint,” Shipp says, “but we can begin our own investigation based upon what we read in the press — in other words, we read the paper.”

Once a complaint is received, the Bar Counsel starts an investigation. If the complaint is found to have merit, the matter goes to a hearing committee. If the committee finds that the complaint should go forward, it then sends it on to the DC Bar Board of Professional Responsibility. If, after investigation, the Board decides to recommend action — it could range from a verbal censure all the way to the ultimate punishment, disbarment — the case goes to the District of Columbia Court of Appeals. The court usually accepts the Board’s recommendation.

Once the process has begun, when the complaint first goes to the hearing committee, the process becomes public, and the Bar releases documents and evidence from the case. But Shipp says a lawyer can prevent that by agreeing to disbarment ahead of time. “If an attorney decides he wishes to consent to disbarment, rather than going through the process,” Shipp explains, “he can file an affidavit and a petition to consent to disbarment and avoid the whole process.”

And not just avoid the process; the lawyer also avoids public exposure of the process. “The benefit that attorneys realize out of that is that the entire process is then confidential,” says Shipp. “The only thing that is public is the Board’s report to the Court of Appeals saying, ‘You should accept this.’“

And that is apparently what Berger did. Shipp is not allowed to discuss the case, so all we have is the report sent from the DC Bar to the Court of Appeals recommending that the court accept Berger’s agreement to give up his license. It is a brief document, but it does say that Berger is “aware that there is currently pending an investigation into, or a proceeding involving, allegations of misconduct”; that he “acknowledges that the material facts upon which the allegations of misconduct are predicated are true”; and that he “knows that if disciplinary proceedings based on the alleged misconduct were brought, [he] could not successfully defend against them.”

And that, apparently, is the end of the Berger matter. Some Republicans on the House Committee on Oversight and Government Reform wanted to hear more from Berger about some of his still-unexplained actions — “We had more questions for him,” says one GOP aide. But Republicans are now in the minority, and there is no chance that Democratic chairman Henry Waxman will pursue the matter. For its part, the Justice Department, wracked by internal scandals, has shown no interest in further investigation. So now, with his decision to give up his law license, Berger has apparently shut off the last chance for anyone to learn more about the case.


Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.