The Glenn Fine Factor at the DOJ
© Jack Cashill
he Kafkaesque career of a federal bureaucrat named Glenn Fine sheds some useful light on the machinery of government.
To examine that career is to understand why Bush Attorney General Alberto Gonzalez was hounded from office and Obama AG Eric Holder still molders in place. More significantly, it is to understand why a blameless Scooter Libby very nearly went to prison and the sock-stuffing bandit Sandy Berger never got close.
After ten years as Inspector General of the Department of Justice, Fine has just stepped down. The conservative Washington Examiner links Fine’s departure to a recent U.S. Commission on Civil Rights report that detailed “corruption, racism, lying under oath, and altering official FBI documents on the part of the Justice Department.”
As the internal watchdog for the DOJ, Fine and his staff a staff of four hundred criminal investigators, auditors and lawyers were supposed to prevent that sort of thing from happening. They apparently did not.
The mainstream media have largely chosen not to notice. They remember Fine most fondly for his inquisition into the dog-bites-man firing of seven Republican U.S. Attorneys by Gonzalez.
That case, for no reason anyone can quite remember, made headlines. “Gonzales Faces Inquiry Into Veracity of His Testimony,” blasted the New York Times. The allegedly non-partisan Fine won praise from the Times and Democrats like Vermont Senator Patrick Leahy, who “welcomed Mr. Fine’s decision to investigate.”
For the record, President Clinton appointed Fine Inspector General in the waning days of his administration. Although Fine served at the pleasure of the president, George Bush followed tradition and left him in place.
For a variety of reasons, personal and ideological, Democrats like Fine are more inclined to linger in the bureaucracy than Republicans. Consequently, during the Bush years, the DOJ was riddled with Clinton-era holdovers. As the House Committee on Government Oversight and Reform report on Sandy Berger made clear, not all of them did their jobs in good faith.
If the House report had a hero, it was the Inspector General of the National Archives, Paul Brachfeld. Brachfeld began his work for the federal government in the Carter administration and is testament to the potential for integrity in a career bureaucrat.
Beginning with the third of Berger’s four visits to the Archives in September 2003, when Berger was first caught in the act of stealing documents, Brachfeld tried to alert the Justice Department to the scope and seriousness of the theft.
On January 14, 2004, the day Berger first testified before the 9/11 Commission, Brachfeld met with DOJ trial attorney Howard Sklamberg. Concerned that Berger had obstructed the Commission’s work, Brachfeld wanted assurance that the Commission knew of Berger’s crime and its ramifications.
On March 22, two days before Berger’s continued public testimony, senior attorneys John Dion and Bruce Swartz got back to Brachfeld. They informed him that the DOJ was not going to notify the 9/11 Commission of the Berger investigation before his appearance. “Justice Department’s first obligation,” Dion told Brachfeld, “was to conduct its criminal investigation in the proper way.”
Given his experience with the DOJ, Brachfeld was not quite sure what “proper” meant. Despite his fear of crossing Dion, Brachfeld called Fine on April 6 and again expressed his concern that the 9/11 Commission remained unaware of Berger’s actions.
Fine organized a meeting for April 9. As Brachfeld reported to those gathered, “Berger knowingly removed documents and therefore, may have purposely impeded the 9/11 investigation.” Some of those documents, Brachfeld added, might have been “original.”
The House report singled out Bruce Swartz, Dion’s boss, as the one attorney most adamantly protective of Berger. Swartz refused to admit that Berger could have stolen documents in his first two visits despite Brachfeld’s insistence that he had the means and the motive.
Throughout April and May of 2004, Brachfeld continued to pester DOJ to follow up with its commitment to notify the 9/11 Commission. On May 26, Brachfeld learned through Fine that “relevant information” about Berger had been passed to the 9/11 Commission, but Brachfeld had no more confidence in Justice’s idea of “relevant information” than he had in its idea of a “proper” investigation.
Not until July 19, 2004, did word leak to the press of the Berger investigation. This was just three days before the 9/11 Commission released its final report, too late for any significant amendment. At the time, of course, the Democrats blamed the Republicans for the leak.
In the real world, however, the timing allowed the Democrats to keep the story away from the 9-11 Commission, lose it in the larger coverage of the Democrat convention, distance Kerry from Berger before the campaign got rolling, and finally blame Bush for denying his alleged involvement.
Brachfeld ignored the election and pressed the DOJ into the fall of 2004 for more information. At a November 5 meeting, Dion and Swartz conceded that they had not informed the 9/11 Commission of Berger’s access to original files.
At a November 23 follow-up meeting with all the relevant DOJ attorneys, Brachfeld asked if Justice would go back and examine the question of why the 9/11 Commission had been left in the dark. Swartz loudly expressed his indignation that Brachfeld would question his integrity.
On April 1, 2005--18 months into an investigation that could just as well have been done in a week--the DOJ issued a press release outlining the Berger case. “Berger concealed and removed a total of five copies of classified documents from the Archives,” read the release. “The documents were different versions of a single document.”
The press release continued, “Each of the five copies of the document was produced to the 9-11 Commission in due course.” Credit was given to Dion and Sklamberg among others for their fine work.
The DOJ recommended a $10,000 fine and a three-year loss of security clearance for Berger. To put this in perspective, the NFL fined Baltimore Ravens’ linebacker Jameel McClain $40,000 for his helmet to helmet hit on Steelers’ tight end Heath Miller last Sunday.
The DOJ press conference floored Brachfeld. He was shocked at the claim that the “investigation found no evidence of Berger trying to hide anything from the 9/11 commission” or that “the Commission had access to all documents it requested.” He knew both claims to be conspicuously false.
Dion and Swartz, when interviewed by the House Committee, offered little but excuses in the way of explanation. As the House report concluded, “The lack of interest in Berger’s first two visits is disturbing.” The pair also declined to submit Berger to a polygraph exam as required by his Plea Agreement.
If these DOJ attorneys were “unacceptably incurious” across the board, one could write off their sloth to bureaucratic malaise. But at the same time Dion and Swartz were cosseting Sandy Berger, they were eagerly campaigning to out the rascal who blew CIA agent Valerie Plame’s imagined cover.
Swartz, Sklamberg, Dion, and Fine were all held over from the Clinton administration. Although Dion has no obvious record of federal contributions, Sklamberg, Fine and Swartz have only contributed to Democrat candidates in federal races. Fine contributed to both the DNC and the Clinton campaign in 1992.
On news of Fine’s retirement last week, Senator Leahy said, “I particularly applaud [Fine’s] work to shed light on improper political influence in hiring and prosecutions which helped bring the Department through a particularly dark chapter in its history.”
The “dark chapter” refers to the time Gonzalez removed seven politically-appointed Republicans from office. Yes, the place is that sick.
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