SockGate: What Berger was trying to cover up

Grand Jury Steps Up Inquiry Into Possible Halliburton Ties to Iran

The DNC spin machine has gone into hyperdrive trying to deflect public attention from Clinton's security chief Sandy Berger's multiple felony violations of security laws by repeatedly calling attention to the so-called "curious timing" of the leak. The timing is indeed curious, but perfectly understandable and even desireable when viewed from the perspective of Berger himself. Viewed together the totality of the evidence suggests that Berger had the most to gain by the leak of the information at this time.

Following the search of his home and office earlier this year Berger found himself boxed in, unable to dispute clear proof that he had removed highly classified material from a secure reading room and had even lost or disposed of some of it. As an attorney and National Security Advisor under Clinton, Berger must have been well aware that what he did was unlawful and inexcuseable. Faced with almost certain criminal prosecution Berger did what any powerful and well-connected Wash DC white collar criminal caught red-handed would do: he hired a top-tier DC white-collar defense attorney, in this case Lanny Breuer. Breuer in turn did what any top-tier Wash DC white collar defense attorney would do: he went on the offensive and tried to force a deal to persuade the Justice Department to dispose of the matter early, quietly, and without criminal sanctions.

Unfortunately for Berger, the Justice Department wasn't interested in rolling over. The fact that the investigation continued for over eight months without closure, indeed without even getting to the point of Berger's being formally interviewed by the FBI, is strong evidence that the Justice Department was pursuing the matter with the importance it deserved, with an eye toward eventually convening a grand jury and indicting Berger.

Faced with almost certain prosecution Berger's next best option was to "foul the pool" by leaking the investigation.

"Fouling the pool" means to release information into the public forum so that a defense attorney may make the claim that his client has been prejudged and that it is impossible to impanel an impartial jury. This is a particularly powerful tactic in politically-tinged cases involving highly-public figures such as Berger. In the past 72 hours Berger's leverage to work a deal has gone up immeasurably and likelihood of the Justice Department's winning a sustainable conviction against him has dropped dramatically.

A defendant who "fouls the pool" will be careful to control the release so that he can spin it to his best advantage in real time. He has virtually unrestricted power to control the release because the Justice Department is largely prohibited from commenting publically on the leak and countering the spin. By "fouling the pool" the defendant subtly prods the public to erroneously infer that the Justice Department is behind the leak and is being over-zealous. After erecting a Justice Department straw man to direct public outrage toward, the defendant pleads his relative innocence by stessing the least culpable interpetation of the evidence released.

The combination of these two tactics is typically devastating to the prosecution case and increases pressure on the Justice Department to conclude the matter on the defendant's terms.

It is possible that someone in the Bush administration leaked the information, but it isn't likely. At this point, Berger has far more to gain than the Bush administration does.