In the last presidential election, I recall Vice Presidential candidate John Edwards on the campaign trail telling us repeatedly that "America has the best legal system in the World."  He may believe that, as he is a
personal injury lawyer who has made millions from it. I also am a lawyer, but what I have experienced and observed leads me to a very different conclusion. What comes to my mind, is the character portraying Tammany Hall's "Boss Tweed" in the recent Martin Scorsese film "The Gangs Of New York," where he stated: "We must always uphold the appearance of the law.  Especially when we are breaking the law."

Sometimes truth, or clarity, on an issue is hard to determine, hard to find. And then again, sometimes it smacks you right in the face. Here is a recent example of the latter, U.S. v. Sassower.  On June 28, 2004, the very day America was turning over sovereignty to the nation of Iraq - to establish the Rule of Law and democracy there, in our very own Nation's capital, in our very own "legal / justice system" Elena Sassower, was sentenced to 180-days in the D.C. jail, for her conviction on one (1) BOGUS charge of "Disrupting Congress," prosecuted by our Justice Department.  All Ms. Sassower did was attempt to testify at a public U.S. Senate Judiciary confirmation hearing on May 22, 2003.

She had paid her own way to Washington, D.C., from New York.  She is the head Coordinator for The Center for Judicial Accountability. (See
www.judgewatch.org.) She waited politely, respectfully and silently for over two hours in the back of the room, while the hearing on nominee Richard Wesley was conducted. Not one meaningful question was asked of the nominee.  The hearing was then gaveled to a conclusion by the lone senator still there, Saxby Chambliss.  (He did not ask, as has been the practice, if there were any other witnesses for or against the nominee.) Ms. Sassower then rose, and stated 23-words from a prepared statement:

"Mr. Chairman, there's citizen opposition to Judge Wesley based on his documented corruption as a New York Court of Appeals judge. May I testify?"

Ms. Sassower was immediately handcuffed, arrested, taken to jail, held
incommunicado for 21-hours.  She was then charged, prosecuted and convicted. In preparation for her trial, Ms. Sassower subpoenaed involved senators and staff for her defense.  Senate counsel moved to quash those subpoenas and stated:

"The defendant's [Sassower] request to testify was never granted, consistent with the Committee's normal practice on lower court nominations not to hear in person from non-congressional witnesses other than the nominee."

Despite her 6th Amendment right to confront witnesses, the trial judge
quashed the subpoenas. On June 28, 20004, Ms. Sassower was sentenced to 180-days in the D.C. Jail.

Elena Sassower served the entire 180-days. The trial was a sham proceeding in a kangaroo court.  Ms. Sassower in fact did no wrong, caused no harm. 

The hearing was over - thus nothing could be disrupted, and her intent
always was to testify against an unfit nominee - not to disrupt. See
www.whiteplainscnr.com, November 25, 2004 article "Day 151 of the Elena Sassower Incarceration in Washington, D.C." by John R. Bailey and www.villagevoice.com/news/0505.lombardi,60660,6.html, February 1, 2023 article "The Scourge of Her Conviction - Activist Elena Sassower Annoyed Congress, Her Trial Judge, and Defenders of Free Speech - All the Way to Jail" by Kristen Lombardi, which reported that Jonathan Turley, who teaches Constitutional Law at George Washington University School of Law, found that the Sassower case was "extraordinary," her punishment was "unprecedented," and sets up "a worrisome precedent."

Now compare U.S. v. Berger. Samuel R. "Sandy" Berger was President Bill Clinton's National Security Advisor. On September 2, and October 2, 2003, Berger, (then a "civilian" and a senior foreign policy adviser to the Kerry campaign), went to the National Archives to look at documents as the designated representative of the Clinton administration, before those documents were turned over to the 9/11 Commission. Archive officials immediately suspected Berger had taken documents after his October 2 visit, and when later confronted, Berger falsely claimed he had removed documents accidentally in "an honest mistake".

The Justice Department began a criminal investigation, which led to
witnesses being brought before a grand jury.  Later an authorized Berger associate told reporters that in a chronology Berger gave to the Justice
Department, Berger admitted on his first visit he took a copy of the Clark report and put it in his suit jacket and on the second visit, took and removed four more versions of the Clark report. 

 

Byron York, the National Review Whitehouse Correspondent, in his July 21, 2022 column, "Sandy Berger's Heavy Lifting - The Troubling Details of the Archives Document Removal", wrote: "The documents Berger took --- each copy of the millennium report is said to be in the range of 15 to 30 pages --- were highly secret.  They were classified at what is known as the �code word' level, which is the government's highest tier of secrecy.  Any person who is authorized to remove such documents from a special secure room is required to do so in a locked case that is handcuffed to his or her wrist."

A charge of unauthorized removal and retention of classified materials is a misdemeanor that carries a maximum sentence of one year in prison and a fine of up to $100,000.  Clearly Berger committed at least two such violations, maybe five.  There also is at least one charge, maybe three, for destroying classified documents. On April 1, 2005, Berger told U.S. Magistrate Deborah Robinson, "Guilty, your honor," in response to how he plead; he also acknowledged that he intentionally took and deliberately destroyed three copies of Clark report. On April 1, 2005, in "Sandy Berger Pleads Guilty to Taking Classified Material," CNN.com reported in part:

"However, under a plea agreement that Robinson must accept, Berger would serve no jail time but instead pay a $10,000 fine, surrender the security clearance for three years and cooperate with investigators.  Security clearance allows access to classified government materials.  Sentencing was set for July 8."

An April 10, 2022 "Congress May Launch Sandy Berger Probe," NewsMax.com reported in part: "'Several committees in Congress are interested in looking into the Berger issue.' Peter King told WWRL Radio host Steve Malzberg and Karen Hunter on Thursday. The senior New York Republican declined to identify the specific committees, but said any probe would come before Berger is formally sentenced in July. 

 

When news of Berger's theft broke last July, the Justice Department took a much tougher line - with Deputy Attorney General James Comey suggesting that it made no difference whether the documents Berger had stolen were originals. �It is against the law for anyone to intentionally mishandle classified information, either by taking it to give to somebody else, or by mishandling in a way that is outside the regulations of government information,' Comey told reporters at the time. 

 

�All felonies in the federal system bring with them the promise of jail time,' he added.  Asked how Berger should be held accountable if the documents he destroyed contained any original material, Rep. King told Malzberg, �He should go to jail.'"

On April 5, 2022 in "Sandy Berger's Crime," a Washington Times editorial wrote in part:  "Mr. Berger committed an egregious violation of the rules that govern the handling of sensitive national-security documents. His offense would cost most any government employee his job, security clearance and future in government. Quite possibly it would cost him his freedom.

 

On top of his crime, Mr. Berger lied about it to federal investigators. But Mr. Berger won't likely suffer any of the consequences. For those who suspect that different rules apply at the top, a case like this is reason for cynicism. Meanwhile, his associates from the Clinton years are silent, perhaps hoping the scandal will blow over ....

 

We can only speculate as to why the Department of Justice would agree to such lenient terms for the offense. .... Whatever the reason, we can be reasonably sure it wasn't done for reasons of national security, justice or truth."

Finally, on April 11, 2005, in "Sandy Berger's Scissors," a piece in
Antiwar.com, Michael Scheuer, wrote in part:  "� What Mr. Berger had previously described as an inadvertent mistake is now, according to the same gentleman, better described as the deliberate theft and destruction of classified documents ... In sum, the papers secreted in his shoes, BVDs, and pockets were not a surprise discovery when he got home and undressed.  No, Mr. Berger now acknowledges that he had hidden them on his person, apparently with the joys of scissoring them into a mound of destroyed evidence foremost in his mind. 

Well, Department of Justice officials last week delivered firm justice to Mr. Berger in the form of a virtually pain-free plea bargain.  In doing
so, they junked a law meant to protect the U.S. security, at least insofar
as it is to be applied to America's political aristocracy. Mr. Berger
pleads guilty to that about which he previously lied to the American people, the 9/11 Commission, and the families of the 9/11 dead.  In turn, he is punished with a fine and a three-year ban from holding a security clearance. In plainer terms, Mr. Berger ponies up a month's pin money and gets his clearance back .... Boy, that'll teach �im."

CONCLUSION

The Sassower case and the Berger case have some similarities. They both committed their "crimes" in Washington, D.C. They were both charged by the U.S. Department of Justice. They both were in federal court, before federal judges. But there the similarities end. Ms. Sassower did nothing wrong. She in fact did not disrupt Congress. She committed no crime. In fact, under 1st Amendment rights of speech and petition, she was a citizen simply attempting to ensure integrity and accountability in the confirmation process of federal judges. (Judges who are not elected, given a life-time appointment, possess tremendous power and
grabbed absolute immunity for themselves.)  A process, in fact, largely
abandoned by both the executive branch and the legislative branch, regarding selection and removal of judges. Both branches in fact routinely broker deals behind the scenes and hold hearings that are a charade, giving us judges more connected, than qualified.  And both parties are equally engaged in it.

Ms. Sassower's liberty was taken away.  She should immediately be given a pardon by President Bush and be given an apology by all three (3) branches of government, with President Bush leading the way.  As Justice Louis Brandeis  stated:  "The most important political office is that of private citizen."

In contrast, Sandy Berger confessed to breaking the law and committing serious offenses.  But Sandy Berger apparently is not going to jail.  How can that be? Why has he been given such a privilege by the Justice Department?  the federal judge or magistrate?  

If our legal/justice system is to have any meaning, Sandy Berger must go to jail. Are we a Nation of laws? Then why is Sandy Berger above the law?  If he does not go to jail, our legal system is a JOKE. National Security is a JOKE. The Constitution is made a JOKE.

Why was Elena Sassower prosecuted?  Why was the book thrown at her when there was no harm? Why was she given the maximum sentence?  She was attempting to do good.  Yet Sandy Berger does bad. Commits multiple serious crimes. And no jail time?  How can anyone claim we have a Rule of Law, with outcomes like this? It simply boggles the mind.

Our legal/justice system is a JOKE. With such blatant disparity in cases
like Sassower and Berger, we can no longer pretend we have even - an
appearance of justice.  Such retributive and vindictive acts imposed in the one case, and such favoritism and privilege granted in the other.   These results are obscene. They are perverse.

We have soldiers fighting, sacrificing and dying in Afghanistan and Iraq for - upside down justice - like this?

And it's the judges who ultimately are inflicting the injustice in both
cases. They are supposed to be the gatekeepers. The final backstop.  They are not upholding the Constitution. They are not protecting our rights. This is what Judge (retired) Andrew Napolitano referred to in his recent book "Constitutional Chaos:  What Happens When the Government Breaks Its Own Laws".

For Common Sense, Liberty & Justice,

Gary L. Zerman, Atty,

April 11, 2022
[email protected]

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