As the media would like us to believe, he has been tried and convicted. But I don't recall any court appearances related to stealing classified documents, which is the crime in question here.
The concealment of classified documents in ones pants and the removal from the archives is strictly prohibited under law, regardless of careless intent.
According to Wiki - "Berger eventually pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material on April 1, 2005."
The sentencing judge raised the fine to $50K, added 2 years of probabtion, 100 hours of community service (tho' I bet that wasn't picking up roadside trash)and the 3-year clearance loss was left in place.
So my point remains. Unless something else is found (no pun - a new legal infraction), Berger has walked.