Tuesday, April 05, 2005

Sandy Berger: Abuse of Trust & the Sentencing Guidelines

Like many, I am outraged over the utterly lenient plea bargain given to Sandy Berger. Not only did he steal classified documents regarding national security estimates, but he destroyed said documents & knowingly lied regarding his theft & destruction of said documents. Below, I compare Mr. Berger with Earl Edwin Pitts, the convicted FBI, turned Soviet, Spy. Mr. Pitts wanted a lighter sentence because he didn't believe he held a position of "special trust." This was of course rejected. However, what is truly interesting to me is the special position of trust that Sandy Berger held as a former National Security Advisor to the President of the United States. Shouldn't such an individual be held to a higher standard & subject to greater scrutiny & accountability than a mere FBI agent?

By agreeing to plead guilty to the charge of "unauthorized removal and retention of classified material" a misdemeanor, Berger will serve no jail time and only pay a $10,000 fine, in addition to surrendering his security clearance for three years (i.e. the rest of the Bush Administration). However, the crime carries a possible maximum sentence of a year in prison and up to a $100,000, fine in addition to permanent loss of the security clearance.

What justification for this "downward" departure from the maximum sentence exists? I have seen none to date, except for rumors that perhaps his plea bargain is part of an on-going investigation. In fact, it appears that due to Mr. Berger's "special" position of trust, he actually qualifies for an "upward" departure in the sentencing guidelines (which I readily admit probably don't apply to this misdemeanor; however, the analogy still applies).

While Mr. Berger is not a spy, he did take & destroy classified documents. Many of you probably remember the case of Mr. Pitts, the FBI agent who decided to work for the Soviet Union. Mr. Pitts disagreed with his sentence, which was "increased" due to his abuse of trust, under Section 3B1.3 of the Sentencing Guidelines. Citing numerous other espionage cases where the abuse of trust upward departure wasn't applied, and where the harm of the disclosure of confidential documents was greater than his own, he believed he should get a lighter sentence.

This section provides that sentencing courts may consider: (1) whether the defendant had special duties or "special access to information not available to other employees;" (2) "the defendant's level of supervision or 'degree of managerial discretion'"; and (3) whether an examination of the acts committed establishes that this defendant is "'more culpable' than others who hold similar positions and who may commit crimes."

The 4th Circuit rejected Mr. Pitt's appeal, finding that "The harm resulting from the actual offense conduct is irrelevant to a decision to depart based upon an extraordinary abuse of trust." 176 F. 3d 239 (4th Cir. 1999)

So...I leave it to you; and hopefully the judge who will decide whether the plea bargain is appropriate, to decide whether Mr. Berger held a position of "special trust," and if anything, should qualify for an enhanced sentence, or at least the maximum allowed by the charge.


Blogger Intern said...

There can be no analogy between the very small crime of Berger and Pitts' outright treason. Berger did not turn over secrets to our enemy or BETRAY our country.

I don't know how you can possibly compare the two: "analogy" means that there must be at least some basis for comparison, and most of your "analogies" simply aren't that.

I hope to God that you are not my judge, either in earth or in heaven. You have no sense of judgment! I have seen you, over and over and over again on various blogs, come up with ridiculous analogies that have no basis in reality. You stretch beyond the limits of stretching in your reasoning.

Damn, Lyle! It scares me to think that people like you are admitted to practice law in our country.

Oh, well. If your reasoning is impaired, at least your heart is in the right place and you are a righteous man trying your best to follow God's commandments. At least there's that.

8:07 AM  
Blogger scott_romer said...

Ditto to that message. Lyle - I see your posts all over the place. With your totally weak logical reasoning skill, how did you ever graduate from law school??? Your comments totally miss the point of most discussions you comment on.

6:49 PM  

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