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On July 19, 2004, it was revealed that the U.S. Justice Department was investigating Berger for unlawfully mishandling classified documents in October 2003, by removing them from a National Archives reading room prior to testifying before the 9/11 Commission. The documents were five classified copies of a single report commissioned from Richard Clarke, covering internal assessments of the Clinton administration's handling of the unsuccessful 2000 millennium attack plots.
When initially questioned by reporters, Berger claimed that the removal of the top-secret documents in his attache-case and handwritten notes in his jacket and pants pockets was accidental. He later, in a guilty plea, admitted to deliberately removing the copies and cutting three up with scissors.[13] Two of the copies were recovered by DOJ investigators and returned to the archives.