secrecy

The Watergate ‘Road Map’ and the Coming Mueller Report

By Stephen Bates, Jack Goldsmith, Benjamin Wittes
Friday, September 14, 2018, 12:21 PM

According to countless media accounts and President Trump’s own lawyers, Special Counsel Robert Mueller is writing some kind of report on allegations of presidential obstruction of justice. Exactly what sort of report this may be is unclear. But to the extent that Mueller is contemplating a referral to Congress of possible impeachment material, he has two historical models of such documents to draw on. One, the so-called Starr Report, is famous and publicly available. The other is a document most people have never heard of: the “Road Map” that Watergate Special Prosecutor Leon Jaworski sent to Congress in 1974 and that informed its impeachment proceedings, which were already underway.

The Road Map was very different from the Starr Report. Where Starr wrote a lengthy narrative, the Road Map was reportedly spare. Where Starr evaluated the legal relevance of the evidence he referred, the Road Map apparently contained no analysis and drew no conclusions. And where the Starr Report was in bookstores worldwide and today is just a Google search away, the Road Map is largely forgotten.

There’s a reason for that: The Road Map remains under seal at the National Archives. Kenneth Starr couldn’t read it. You can’t read it. And, remarkably for a document that may be the best model available for his current project, Mueller can’t read it either.

The three of us filed a petition on Thursday to the U.S. District Court for the District of Columbia that seeks to rectify this problem. Represented by attorneys at Protect Democracy, we asked the court to unseal the Road Map. We did so because the document is of significant historical interest and significant contemporary interest. As we will explain in this post, which is drawn from declarations that we and others filed in the matter, the Road Map is one of the few significant pieces of Watergate history that remains unavailable to the public. The document is also keenly relevant to current discussions of how Mueller should proceed. It is possible that it is even relevant to discussions taking place within the Mueller investigation itself.

It is time for Jaworski’s Road Map to see the light of day.

The Road Map grew out of intensive discussions within the Special Prosecutor’s Office about how to proceed against President Richard Nixon for alleged crimes uncovered by the special prosecutor’s investigation of the Watergate scandal. The Watergate Special Prosecution Force had obtained important evidence through the grand jury that the House Judiciary Committee had not obtained. Some members of the Special Prosecutor’s Office wanted to indict the president for obstruction of justice and related crimes. Others in the office argued that the special prosecutor should draft a presentment charging Nixon with crimes, including obstruction of justice. According to this plan, the grand jury would approve the presentment and the presiding federal district court judge, John Sirica, would transmit it to the House of Representatives for its consideration in deliberations about possible impeachment proceedings against the president.

Jaworski opposed both courses of action. He doubted that a sitting president could be indicted for obstruction of justice. These doubts were informed by his belief that his office should defer to ongoing deliberations in the House Judiciary Committee about whether to impeach the president. And he opposed the idea of sending a grand jury presentment to the House for multiple reasons: He believed that the special prosecutor should not be seen to prejudge issues under consideration by the House, he feared that Judge Sirica would not transmit such a presentment and he wanted to protect the fair-trial rights of the presidential aides he would soon indict.

It seemed possible, therefore, that prosecutors possessed the evidence but not the constitutional authority to use it, whereas the House possessed the constitutional authority but not the evidence.

Jaworski concluded that the best course of action would be for the grand jury, through Judge Sirica, to provide the House with some of the evidence it had collected about Nixon’s alleged crimes and let the House decide whether and how the evidence implicated impeachable offenses. The evidence consisted of 800 pages of documents and 13 tape recordings of Nixon’s Oval Office conversations. To assist the House in understanding the evidence, the Special Prosecutor’s Office included a 55-page “Road Map” to the evidence. The Road Map did not contain legal analysis or draw legal conclusions. Each page had a sentence or two of factual statements followed by references to the underlying documents and tapes. As Philip Lacovara, who served as counsel to Jaworski and argued U.S. v. Nixon before the Supreme Court, described the history in a declaration filed with our petition:

we were aware that the House Judiciary Committee, which has jurisdiction over possible impeachments, was conducting an inquiry into whether President Nixon had committed “high crimes and misdemeanors” and thus was liable to impeachment. Accordingly, the Special Prosecutor concluded that ... the salient information about the President’s own conduct would be transmitted, in an organized form, to the House Judiciary Committee, if that could be done lawfully. I concluded that this course was permissible under Rule 6(e) of the Federal Rules of Criminal Procedure. The Watergate Task Force team then prepared the Road Map.

It was understood that it would be prudent to seek judicial approval for this course before actually releasing the Road Map to the House Judiciary Committee. Accordingly, we sought approval from Chief Judge John J. Sirica, who was supervising all grand jury matters at the time. I presented the arguments supporting release of the material, which both Chief Judge Sirica and the en banc D.C. Circuit approved (one judge dissenting). See In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F. Supp. 1219 (D.D.C. 1974), aff’d sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974). The Road Map was then transmitted to the House Judiciary Committee. I understand that House members and staff used the Road Map in determining whether to prepare Articles of Impeachment, which the Committee eventually did.

Judge Sirica stated in his decision permitting the transmission of the document to the House Judiciary Committee that the Road Map contained “no accusatory conclusions[,] ... no recommendations, advice or statements that infringe on the prerogatives of other branches of government ... [and] no moral or social judgments.”

James Doyle described the Road Map in his book on the Watergate investigation, “Not Above the Law.” Doyle, who served as special assistant to the Watergate special prosecutors, wrote of the Road Map:

It was a simple document, fifty-five pages long, with only a sentence or two on each of the pages. Each page was a reference to a piece of evidence—sentences from one of the tape recordings, quotations from grand jury testimony ... .

This is how the road map worked. One page might say, “On March 16, 1973, E. Howard Hunt demanded $120,000.” Then it would list page references to grand jury testimony from witnesses who saw Hunt’s blackmail note and references to the tapes where Hunt’s demand was discussed. The grand jury transcripts and the tape transcripts would be included ... .

The strength of the document was its simplicity. An inexorable logic marched through its pages. The conclusion that the President of the United States took part in a criminal conspiracy became inescapable.

Judge Sirica later wrote that the evidence and the Road Map saved the House impeachment inquiry months of time. Yet remarkably, given the plethora of Watergate literature and documents that have emerged over the years, the document has remained under seal. Even now, 13 years after the identity of Deep Throat was publicly confirmed, the Road Map remains under lock and key.

The material within it has come out by one means or another. Indeed, what is interesting about the Road Map is almost certainly not the specific information it contains. In July 1974, the House Judiciary Committee published extensive records of its impeachment proceedings. Included among the thousands of pages of documents were the Statements of Information that the committee’s impeachment inquiry staff presented at the impeachment hearings from May to July 1974, setting forth the evidence relating to the Watergate break-in and cover-up. The impeachment inquiry staff presented factual statements, with citations to the evidence, while abstaining from conclusions so that each Judiciary Committee member could draw his or her own conclusion. Significantly, too, the published Statements of Information quote the grand jury testimony of many witnesses, citing the evidence provided by the Watergate grand jury as the source. They also reprint pages from the grand jury transcripts.  Individuals whose excerpted grand jury testimony appears in these published materials include John Dean, Fred LaRue, Jeb Magruder, L. Patrick Gray, John Ehrlichman, H.R. Haldeman, Richard Kleindienst, E. Howard Hunt, Egil Krogh, Ronald Ziegler, Henry Petersen and Charles Colson.

Later, in January 1975, former special prosecutor Jaworski and his successor, Henry Ruth, testified before the House Judiciary Committee about the obligation of the Special Prosecutor’s Office to produce a final report. Both men emphasized that the significant evidence concerning Richard Nixon was already public. “We do not have 10 more smoking guns lying around our office,” said Ruth. In other words, don’t expect any breaking Watergate news should the court release this document in response to our petition.

Indeed, Lacovara makes clear in his declaration that he “was surprised to learn that that the Road Map was not released years ago.” And Richard Ben-Veniste, who served as chief of the Watergate Task Force within the special prosecutor’s staff, makes clear in a declaration that there is almost certainly no new substantive Watergate story to break by releasing the Road Map:

the public record of Watergate ... includes, but is not limited to, the articles of impeachment, the Watergate Special Prosecution Force’s report, the House Judiciary Committee’s report, transcripts and materials relating to the House Judiciary Committee’s impeachment hearings, the Senate Select Committee on Presidential Campaign Activities’ report, published transcripts of compendiums of the White House tapes, and the records of the public trials of President Nixon’s co-conspirators. It is, of course, normal and commonplace that the content of grand jury material becomes public information by reason of its use in subsequent public trials and related proceedings. All of these documents revealed material that we, at one point, treated as grand jury material subject to Rule 6(e). Based on my first-hand recollection of the structure and content of the Road Map, I can confirm that those publications viewed in their totality contained most, if not all, of the information that was referenced in the Road Map.

The primary significance of the document, rather, lies in its role as a kind of model or template for subsequent impeachment referrals, a model that, ironically, has never been available for study and emulation. The Watergate grand jury’s transmittal of evidence led to the provision of the now-defunct independent counsel law requiring that independent counsels file impeachment referrals when they develop evidence “that may constitute grounds for an impeachment.” (See 28 U.S.C. § 595(c).) Congress appears to have given very little thought to the question of how to enshrine in law a requirement for a Road Map-like referral, leaving open the possibility that independent counsels would take different approaches to referring impeachment material to the legislature. Most members of Congress voting on the law, of course, had never seen the Road Map. But the Road Map was clearly what legislators were thinking about when they wrote this provision, under which Independent Counsel Kenneth Starr referred impeachment material to Congress in 1998.

Starr’s staff never got to consult the Road Map. But that wasn’t for lack of trying. One of us (Bates) believed that the Road Map might constitute a model worthy of consideration as Starr’s staff—on which he served—contemplated its own impeachment referral. Although the Road Map was not necessary to the Office of Independent Counsel as a legal precedent—under Section 595(c), the office could send a report to Congress without a judge’s approval—he was interested in it as a historical precedent for how Starr might proceed. When he asked to see the document, however, an archivist at the National Archives told him in 1997 that he could not see the Road Map because it was still under the seal imposed by Judge Sirica.

Starr eventually took a very different approach—as did Congress. The Starr Report, which Bates helped draft, contained a detailed narrative and legal conclusions. And Congress made the entire document public. Without getting into the merits of the report’s format and Congress’s release of it, it is safe to say that this approach generated a great deal of criticism.

The result is that as Mueller reportedly contemplates writing a “report” on possible presidential obstruction of justice, there are two models available to him to the extent that he is contemplating an impeachment referral of some kind: One of those, the Starr Report, is well-understood and regarded by many commentators in a negative light. The other, the Road Map, remains secret more than 40 years after its transmission to Congress. Few people have even heard of it.

Special Counsel Mueller is investigating “(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).”

There is a lively public debate about the appropriate framework for Mueller to report any findings to Congress of potentially unlawful conduct by the president. In the midst of this debate, there is broad agreement about the potential relevance of the Road Map to Mueller and the decision by Acting Attorney General Rod Rosenstein about whether and how to disclose the fruits of the investigation to the public, as well as to the larger public understanding of and debate about the appropriateness of whatever is disclosed. As Lacovara puts it, “disclosure of the Road Map is likely to contribute to a public understanding of the options available to Special Counsel Robert Mueller in his current investigation of conduct during the 2016 presidential campaign.”

As Jaworski’s deliberations with his staff before settling on the Road Map indicate, an investigation of the president by an executive-branch official, and the possibility of disclosing the fruits of that investigation to Congress, raise difficult and sensitive issues of executive power, separation of powers, and individual rights. Because there are few judicial precedents that expressly govern those issues, the past practices of government actors can inform both legal meanings and proper government practice.

The Road Map is one of only two main precedents in this area. If Mueller decides to send a report to Congress, perhaps through Rosenstein, the Road Map would be a vital touchstone for the public and Congress to assess his actions. It would help the public judge the legality of his actions under the special counsel regulations and the legitimacy of his actions based on a comparison with the Road Map and the Starr Report. If Mueller or Rosenstein decides to issue a report on something akin to the Road Map model, it would be important to compare the level of factual detail that they include in any transmission to Congress with the level of detail in the Road Map.

Even if Special Counsel Mueller does not send a report to Congress, the Road Map would be an important point of comparison in judging the validity of Mueller’s failure to issue a report. It would also have broader relevance to journalists and scholars who wish to put the Mueller investigation and any Mueller report in historical context.

The Road Map might also have substantive legal relevance. The question of whether the president can violate a federal obstruction-of-justice statute in the discharge of his duties as chief executive is highly contested. Many of President Trump’s actions that his critics say constitute obstruction of justice had parallels in the Nixon presidency. For example, Trump has been accused of obstructing justice, or contributing to such obstruction, in his firing of James Comey as FBI director and in his many statements that the Mueller investigation should end. Similarly, President Nixon fired Special Prosecutor Archibald Cox because he did not approve of some of the steps Cox took in the Watergate investigation. And Nixon stated publicly, in his Jan. 30, 1974, State of the Union address, that “I believe the time has come to bring that investigation and the other investigations of this matter to an end.” The House of Representatives, in its first article of impeachment, charged Nixon with obstruction of justice based in part on his “interfering” with the conduct of those investigations by various federal agencies, including the FBI. This charge does not necessarily involve a conclusion that the president violated a federal criminal law. It is nonetheless potentially highly relevant to Mueller’s thinking about obstruction of justice, and thus to the public’s analysis of any decision based on that thinking, whether Special Prosecutor Jaworski cited the Nixon actions listed above in the Road Map as potentially relevant evidence—and especially if he did so.

It is also reasonable to expect that Mueller might want to consult the Road Map, as Starr’s staff hoped to consult it in 1997 and 1998. In seeking judicial authorization to transmit grand jury evidence to the House of Representatives, the special counsel may find it helpful to consider the approach of the Road Map. Indeed, the value of the Road Map as precedent may be much greater for Mueller today than it was for the Office of Independent Counsel in 1997 and 1998. The OIC under Section 595(c), after all, could transmit grand jury material to the House directly. By contrast, Special Counsel Mueller, like Special Prosecutor Jaworski, cannot do so without judicial authorization. The Road Map thus may represent important legal as well as historical precedent for Mueller. Based on the experience of Starr’s staff, it is reasonable to expect the National Archives to decline to provide access to the Road Map to the special counsel’s staff without an order from the court unsealing the document.

This leaves the question of whether the court has the power to unseal the document. As Protect Democracy argues on our behalf in this memorandum of law in support of the petition, we believe it does. The arguments for continued secrecy under Rule 6(e) are weak, in our view. Almost all of the substantive information in the document has become public. Almost all of the relevant figures are dead. One of the few living individuals whose conduct the Road Map presumably describes, John Dean, filed a declaration stating that, “To the extent the Road Map refers to my activities relating to the events associated with Watergate, I have no personal objection to disclosure of such information. My privacy interest is not burdened here.” Dean went on to say that, “To the best of my knowledge, nearly everyone else who may be implicated by the substance of the Road Map is deceased. The few who are still living would have no reason to object to disclosure of the Road Map given the passage of time, their own disclosures of their roles in Watergate, and the simple fact that the Watergate story is well known.”

In short, the time has come to release what may be the last great Watergate document still kept from the public.

Our complete filings before the court are available here:

Petition:

 

 

 

Memorandum of Points and Authorities:  

 

 

 

Declaration of Stephen Bates:

 

 

 

Declaration of Richard Ben-Veniste:

 

 

 

Declaration of John W. Dean III:

 

 

 

Declaration of Jack L. Goldsmith:

 

 

 

Declaration of Philip Allen Lacovara:

 

 

 

Declaration of Benjamin Wittes:

 

 

 

 

 

 

 

 

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