Federal Law Enforcement
The Watergate Road Map: What It Says and What It Suggests for Mueller
In neat script near the top of the document, someone has written, “Filed under seal, March 1, 1974.” Above that, red typed letters read, “Unsealed October 11, 2018 by Chief Judge Beryl A. Howell, United States District Court for the District of Columbia, Order No. 11-mc-44 (BAH).
The Jaworski “Road Map,” the last great still-secret Watergate document, became public Wednesday when the National Archives released it under Judge Howell’s ruling from earlier this month. It sees the light of day for the first time in four and a half decades at a remarkable moment, one in which a different special prosecutor is considering the conduct of a different president and reportedly contemplating—as Watergate Special Prosecutor Leon Jaworski once did—writing a report on the subject.
The document’s release owes a great deal to the legal team at Protect Democracy, which represented Stephen Bates and the two of us in seeking its unsealing.
So what does the document say?
The history contained in the Road Map is itself fascinating. But we are not Watergate historians and will leave the evaluation of its substantive contents to others. Our interest in the document is primarily contemporary, only secondarily that of Watergate buffs. Our interest in the Road Map lies in current events: What does it have to teach us about how Robert Mueller should behave as he thinks about reporting on the material his investigation has gathered?
The first striking thing about the “Road Map” is that it is not written in the voice of Jaworski at all. Unlike the Starr Report, which was a report by the prosecutors who investigated President Bill Clinton, this report is a court document, a “Report and Recommendation” from the grand jury itself combined with a document entitled “Material in the Grand Jury’s Possession Having a Material Bearing on Matters Within the Primary Jurisdiction of the United States House of Representatives Committee on the Judiciary Relating to Questions of Impeachment.” The report is signed not by Jaworski but by “Foreman, June 5, 1972 Grand Jury.”
The document, in other words, is crafted not as a prosecutor’s report on his findings but as an action by the same citizens who handed up an indictment against the Watergate conspirators. It is even, in its very first sentence, crafted as something akin to an extension of that indictment. The grand jury declares at the outset that it has “heard evidence that has led it to return the indictment being submitted herewith. It has also heard evidence that it regards as having a material bearing on matters that are within the primary jurisdiction of the House of Representatives Committee on the Judiciary in its present investigation to determine whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon, President of the United States.”
This harnessing of the moral and legal power of the grand jury is not a surprise. It has long been known that the Road Map was a grand jury document. It is nonetheless striking, partly because it is profoundly different from the Starr Report, which was very much the action of Starr and his team. It also appears to be not just a conceit, though the Road Map was certainly written by Jaworski’s staff. The grand jury in the Watergate case was extremely active, and some of its members wanted to proceed criminally against Nixon. Jaworski had to persuade the grand jurors to name the president as an unindicted co-conspirator instead. So the referral of the Road Map grew out of actions in which the grand jurors were active participants.
The second striking feature of the document is its spareness. All descriptions of the document over the years have stressed this point. For example, James Doyle, Jaworski’s press secretary, described it in his book on the Watergate investigation as “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 page of evidence—sentences from one of the tape recordings, quotations from grand jury testimony.” Doyle wrote that, “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.”
The Road Map itself amply supports Doyle’s description. It contains slightly more than a page of explanation of its contents, a title page with a table of contents, and then 53 pages—each of which contains a very brief declaratory sentence or two of factual claims and then a list of grand jury exhibits supporting the claims. The 53 points of evidence are divided into four segments:
- Material bearing on a $75,000 payment to E. Howard Hunt and related events;
- Material bearing on the president’s “investigation”;
- Material bearing on events up to and including March 17, 1973; and
- The president’s public statements and material before the grand jury related thereto.
Some of the evidence pages merely direct committee members to pieces of grand jury evidence. For example, the entry on Page 11 reads in its entirety:
6. At or about 12:30 p.m. on March 12, 1973, H.R. Haldeman had a telephone conversation with John Mitchell.
6.1 H.R. Haldeman’s telephone log for March 21, 1973, furnished by the White House counsel to FBI, February 13, 1974.
6.2 Grand Jury Testimony of H.R. Haldeman, January 30, 1974, pp. 4-16.
Item 4.1, Grand Jury Testimony of John Dean, February 14, 1974, p. 16
Other pages note public statements and their interactions with evidence the grand jury collected—for example the evidence on Page 52, which reads:
44. On May 22, 1973, the President said in a public statement that “[n]either did I know until the time of my own investigation [March 21, 1973], of any efforts to provide [the Watergate defendants] with funds.” On August 15, 1973, the President said in a public statement that he was told on March 21, 1973, that money had been raised for payments to the defendants for attorney fees and family support and not to “procure silence from the recipients.”
44.1 Accompanying Statement by the President, May 22, 1973.
44.2 Statement by the President, May 22, 1973, p. 6.
44.3 Statement by the President, August 15, 1973, p. 2.
44.4 Transcript of news conference by President, August 22, 1973, 1973 Cong. Quarterly, August 25, 1973, p. 2334
Item 5.1, tape recording and transcript of a meeting on the morning of March 21, 1973, Tr. 17, 18, 58, 61.
The dearth of descriptive richness is by design. Jaworski wrote in his memoir, “The Right and the Power,” that the decision to send the report to the House Judiciary Committee was “without legal precedent, but it seemed to be legally proper—if we prepared the information properly.” Pushing back against those members of his staff who wanted to designate inculpatory evidence against Nixon as such, Jaworski decided that the better course of action would be to simply spell out “facts of the cover-up story” as they appeared in the special prosecutor’s investigation and “let the Committee members reach their own conclusions.”
As Jaworski later wrote, in its final form, the Road Map had “no comments, no interpretations, and not a word or phrase of accusatory nature. The ‘road map’ was simply that—a series of guideposts if the House Judiciary Committee wished to follow them.”
This brings us to the third striking feature of the document: It is almost entirely non-argumentative. In this regards it is a world away from the Starr Report, which laid out a lengthy narrative and then included a set of legal interpretations arguing that the facts reported might be grounds for impeachment. The Road Map entirely lacks a thesis. It does not include any hypotheses about what might constitute an impeachable offense. It does not argue that Nixon committed any impeachable offense. It actually does not even argue that he committed any crimes. It simply makes a series of factual claims, each written in a spare and clinical fashion, each supported with citations to material the special prosecutor’s office provided to Congress.
The grand jury’s only thesis, such as it is, was “that the evidence referred to above [should] be transmitted forthwith to the House Judiciary Committee for such use as it considers appropriate.” How should the House Judiciary Committee use this material? The Road Map makes no recommendation on this score: “It is the belief of the Grand Jury that it should presently defer to the House of Representatives and allow the House to determine what action may be warranted at this time by this evidence.”
Indeed, the report makes only one recommendation to Congress: “this evidence should be received, considered, and utilized with due regard for avoiding any unnecessary interference with the ability of the Court to conduct fair trials of persons under criminal indictment.”
Are there lessons in the Road Map for the Mueller investigation? Without knowing precisely what sort of report Mueller is working on and what his plans are, it’s hard to know for sure. But to the extent that Mueller is working, or comes to be working, on a communication to Congress, a few lessons stand out.
First, less really is more. The document is powerful because it is so spare; because it is trying to inform, not to persuade; because it utterly lacks rhetorical excess. Starr took a different path. The merits of his decision are complicated. The results are less so. His approach worked less well, partly because it sought to do more.
That also made him vulnerable to the charge of being a rogue or overzealous prosecutor after President Clinton for political purposes. Doing less, rather than more, has helped insulate Mueller against similar charges. The insulation has not been total, but it has helped a lot. The Road Map is a fine example of how not to fan flames, in a politicized environment, that are apt to blow back on a prosecutor.
Second and relatedly, the Road Map is extremely careful not to do—or seem to do—Congress’s job for it. The power to impeach is a congressional function in which no executive-branch official plays a role—except as the object of the impeachment. More ambitious reporting styles, one way or another, have the effect of instructing Congress what it should do, what does and does not constitute an impeachable offense, how it should read complex patterns of evidence. By contrast, the Road Map simply gave Congress information to use as members saw fit and assiduously avoided instruction or didactic messaging as to how to put that information to use. This discipline as to the report’s role must have required steely restraint. It has aged extremely well. It is the work of an officer, or group of officers, who asked important questions: What is my role, and what does my role not include? How does my role interact with that of other actors? What duty do I have to facilitate the role of other constitutional actors—and how can I fulfill that duty without interfering in their roles? Mueller may not be writing an impeachment referral, but for someone in his position, these questions are always worth asking.
Finally, the Road Map teaches an important lesson about restraint. There is a tendency in the age of Donald Trump to assume that excess is needed to combat excess, that the proper response to gross norm violations involve the scrapping of other norms. Yet faced with Richard Nixon, Leon Jaworski wrote a meticulous 55-page document that contains not a word of excess. He transmitted it to Congress, where it did not leak. It is powerful partly because it is so by-the-book.
Kind of like Bob Mueller.