Berger Case Still Roils Archives, Justice Dept.

Hertling said the department "stands by its investigation" and believes the guilty plea it negotiated with Berger on April 1, 2005, "was the best one possible in light of the available evidence." He also criticized the Archives staff for failing at the time to confront Berger, search him or contact security officials, saying this failure "had to be weighed against the evidence."

Brachfeld has similarly expressed frustration that Smith and others who suspected Berger of wrongdoing chose not to inform him of their suspicions until more than a week after Berger's last visit to the Archives. "If I had been notified, I would have put cameras in the room. I would have caught him leaving with documents on him. . . . We could have had FBI agents around the facility. . . . He would have been arrested," Brachfeld said.

Brachfeld pressed Justice Department officials on six occasions in 2004 to make a fuller statement to the commission about Berger's actions, to no avail. He also contacted Justice Department Inspector General Glenn A. Fine, who organized an April 2004 meeting between Brachfeld and Justice officials that convinced him that "these issues had to go before the 9/11 Commission," according to two people present.

But in a notification to the commission the following month, the department did not mention that Berger had cut up documents, that he reviewed uncatalogued originals or that Brachfeld worried that Berger's theft was greater.

In the Hertling letter, the department noted obstacles in its investigation. The FBI was not advised of the case until Oct. 15, 2003, almost two weeks after Smith concluded that Berger had stolen documents. By then, Archives General Counsel Gary Stern had called Berger and former Clinton lawyer Bruce Lindsey about it and obtained two documents from Berger, who surrendered them at home after first denying they were in his possession.

The letter also said that six months after beginning the probe and well after Berger testified to the commission, "the Department had not yet asked Mr. Berger any questions, as he had not yet agreed to an interview." Berger's lawyer, Lanny Breuer, said Berger first spoke to the FBI in March 2005 and was interviewed a second time in July of that year, after his April 1, 2005, guilty plea to unauthorized removal and retention of classified material.

Judge Deborah A. Robinson imposed a stiffer penalty in the case than the Justice Department sought, fining Berger a total of $56,905, canceling his security clearance, and requiring monthly reporting to a probation officer for two years. Breuer said Berger has also picked up trash in Virginia parks for 100 hours to fulfill a community service requirement, and he criticized the renewed attention to Berger's case.

"It never ceases to amaze me how the most trivial things can be politicized. It is the height of unfairness . . . for this poor guy, who clearly made a mistake," Breuer said.

Some of Brachfeld's colleagues have not been cheered by his new congressional support. An Archives lawyer, who Brachfeld said was one of those involved in the Berger case, this month sent Brachfeld an e-mail accusing him of poor judgment and stating that "I don't think it comes as a great surprise if I were to venture the opinion that senior management at this agency have serious problems with the manner in which your office conducted itself . . . during the Berger investigation."

On Friday, Archivist Allen Weinstein assured Brachfeld in writing, however, that this criticism did "not reflect either my views or the views of the overwhelming majority of NARA employees."