Long-Secret Watergate Filing Could Provide Mueller Road Map For Trump Evidence

Federal authorities released on Wednesday a long-secret grand jury “road map” of Watergate evidence that prompted President Richard Nixon’s 1974 resignation — and could provide a precedent for the current investigation of President Trump by a special counsel.

The National Archives released the documents following recent litigation before a federal judge by scholars who successfully argued that the grand jury’s 1974 work is too important to remain secret, especially in view of current investigation of the Trump Administration by Special Counsel Robert S. Mueller III, a former FBI director shown in a file photo.

The road map is here. It consists of a two-page summary with 53 numbered statements. The statements are supported by 97 documents, such as interviews and tapes.

District Judge Beryl A. Howell, chief judge of the District of Columbia court, ordered release of the report prepared under the supervision of then-Independent Counsel Leon Jaworski and then-Chief Judge John J. Sirica.

The report is known as the “Sirica road map” because Sirica approved the report’s creation and transmission to lawmakers. The judge regarded such transmission as the best solution to the knotty but rare constitutional problem of what prosecutors should do with extensive grand jury evidence suggesting probable cause that a president committed serious crimes.

Such evidence is normally used to indict a suspect, who is then brought to a criminal trial. Courts have not tested whether a sitting president could be criminally tried and sentenced while in office outside of the impeachment process provided by the U.S. Constitution.

Jaworski, shown at right on a Time cover, and his predecessor, Archibald Cox, had developed evidence sufficient to indict more than 50 persons associated with the Nixon administration and/or the cover-up of the Watergate break-in during the 1972 presidential campaign. Washington, DC police arrested  operatives burglarizing the Democratic National Committee headquarters in the Watergate office complex in the city.

Federal prosecutors finessed the constitutional issue of whether a president can be indicted in office by passing their “Sirica road map” developed with grand jury information to the U.S. House Judiciary Committee. The committee used the materials to begin drafting articles of impeachment against Nixon that citing his administration’s actions in covering up Watergate-related crimes by additional crimes, such as obstructing justice.

Nixon resigned office after fellow Republicans advised him that he could no longer count on enough GOP support to thwart an impeachment vote in the House conviction in the U.S. Senate after a trial of charges brought by the House.

Mueller, a “special” counsel slightly different than the “independent” counsel during the Watergate or Kenneth Starr’s “Whitewater” probes of President Clinton and his administration during the 1990s, has functioned in somewhat similar fashion by amassing evidence much like the plea deals or other inducements to obtain evidence against Trump (shown in a Pentagon photo), his administration personnel and their allies.

Mueller’s probe began with a focus on suspected Russian interference into the 2016 presidential election but has expanded to cover a number of arguably related topics, including potential obstruction of justice in covering up evidence and otherwise seeking to thwart investigation.

A significant part of the Watergate materials became public via criminal trials and other proceedings in the 1970s but some material was restricted because of the traditional secrecy of grand jury materials.

Geoffrey Shepard, a California lawyer who once worked for Nixon, years ago sought release of the materials via litigation before U.S. District Judge Royce Lamberth in Washington, DC. But the case languished until a team of three legal experts filed a parallel action two months ago that led the Howell, the chief judge (shown at right), to assume control of the litigation and move for prompt release via the Archives.

The three scholars, as described in their pleadings and commentaries, were Brookings Institution senior fellow Benjamin Wittes; Jack Goldsmith, a Harvard University law professor who led the Justice Department’s Office of Legal Counsel under President George W. Bush; and Stephen Bates, a professor at the University of Nevada at Las Vegas, who co-wrote the Starr report with Justice Brett M. Kavanaugh years before Kavanaugh’s confirmation to the Supreme Court.     

Wittes, Goldsmith and Bates published reports about their litigation on the blog Lawfare, an influential DC site co-founded by Wittes, a former Washington Post editorial board member who last year called for Trump’s impeachment. The reports are excerpted below, as are such other commentaries as a Washington Post news story Wednesday by Spencer Hsu, U.S. archivists release Watergate report that could be possible ‘road map’ for Mueller.

President Richard Nixon in the White House Oval Office (Photo via Wikimedia and the National Record and Archives Administration).

New indictments of Americans stemming from the Mueller or other Justice Department probes have been rare recently. Prosecutors could be consolidating their evidence after a significant number of guilty pleas during recent months, including those of former Trump 2016 Campaign Manager Paul Manafort, right as shown in a mug shot, and former Trump personal attorney Michael Cohen. Also, the Justice Department’s policies discourage politically relevant indictments in the period before federal elections.

Many observers expect that Mueller’s team, which has proceeded without any proven leaks, will undertake more public allegations shortly after next week’s mid-term federal elections.

Some wonder also, however, whether the Trump administration will take steps to thwart any new indictments by removing the top two Justice Department officials, Attorney Gen. Jeff Sessions, left, and/or Deputy Attorney Gen. Rod Rosenstein. Their removal could enable new officials to fire Mueller to prevent the prosecutor and his his team from proceeding with their investigations after next week’s elections.

Updated commentaries on those and related possibilities will be added to the appendix of this column as the Mueller probe and the 2018 elections proceed.

More generally, considerable evidence has arisen that casts doubt on standard news and historical accounts of the presumed goals of the Watergate break-in and the unraveling of that cover-up. Among those critiques are the books Secret Agenda by Jim Hougan (1984), Silent Coup by Len Colodny and Robert Gettlin (1991),  republished in 2016 by Colodny, The Forty Years War by Colodny and Tom Shachtman with an introduction by Roger Morris (2009), The Strong Man by James Rosen (2009), White House Call Girl by Phil Stanford (2013), and Nixon’s Gamble by Ray Locker (2016). We shall explore the most timely of these updates, particularly insofar as they might be relevant to current issues.

For now, the relatively prompt release of the Sirica Road Map in response to the recent litigation raises expectations of what might happen next with the Mueller probe after next week’s federal elections.

Contact the author Andrew Kreig

Related News Coverage

Oct. 31

Lawfare, The Watergate Road Map Unsealed, Benjamin Wittes, Oct. 31, 2018. The National Archives [shown at right] has released the famed — and long mysterious — Watergate “Road Map,” which Special Prosecutor sent to Congress in 1974.

For background on the Road Map, and our litigation to get it released, see here and here. This only just happened, and I have not read the document yet. I’m sure that I will have things to say about it once I have had a chance to digest it, as, I suspect, will Stephen Bates and Jack Goldsmith.

For now, the document itself is [here]; redactions, on initial inspection, seem relatively minor. And here is a trove of related material also available from the National Archive.

Washington Post, U.S. archivists release Watergate report that could be possible ‘road map’ for Mueller, Spencer S. Hsu​, Oct. 31, 2018. One of the last great secrets of the legal case against Nixon is revealed under court order.

U.S. archivists on Wednesday revealed one of the last great secrets of the Watergate investigation — the backbone of a long-sealed report used by special prosecutor Leon Jaworski, below left, to send Congress evidence in the legal case against President Richard M. Nixon.

The release of the referral — delivered in 1974 as impeachment proceedings were being weighed — came after a former member of Nixon’s defense team and three prominent legal analysts filed separate lawsuits seeking its unsealing after more than four decades under grand jury secrecy rules. The legal analysts argued the report could offer a precedent and guide for special counsel Robert S. Mueller III as his office addresses its present-day challenge on whether, and if so, how to make public findings from its investigation into Russia’s interference in the 2016 election, including any that directly involve President Trump.

The legal specialists said they and Watergate veterans sought to have the Jaworski report made public because of the historical parallels they see to the current probe and the report’s potential to serve as a counterexample to independent counsel Kenneth W. Starr’s report before President Bill Clinton’s impeachment.The 453-page Starr report, written in 1998, deepened partisan divisions when its graphic detail and legal conclusions about Clinton’s affair with Monica Lewinsky were immediately made public by House Republicans, who suffered an electoral backlash.

By contrast, the reputation of Jaworski’s report has fared far better, even as its bare-bones form remained a mystery. The Jaworski report is known colloquially known as the “Sirica road map,” for then-Chief Judge John J. Sirica, right, of the U.S. District Court for the District of Columbia, who approved its creation and transmission to lawmakers.

“There were 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,” Jaworski wrote in his 1976 memoir, The Right and the Power: The Prosecution of Watergate.

The House Judiciary Committee recommended that Nixon be impeached in July 1974. He resigned before that recommendation moved ahead.

Sirica’s modern-day successor, Chief Judge Beryl A. Howell, of the U.S. District Court for the District of Columbia, on Oct. 11 ordered the disclosure of Jaworski’s report by the National Archives and Records Administration — with limited redactions — in response to petitions by California author and former Nixon deputy Watergate defense counsel Geoffrey Shepard and by Brookings Institution senior fellow Benjamin Wittes; Jack Goldsmith, a Harvard University law professor who led the Justice Department’s Office of Legal Counsel under President George W. Bush; and Stephen Bates, a professor at the University of Nevada at Las Vegas, who co-wrote the Starr report with Justice Brett M. Kavanaugh years before his rise to the Supreme Court.

In a statement, Deana Kim El-Mallawany, counsel for Protect Democracy, which represented the Wittes group, said: “The Road Map is a critical historical precedent for ensuring that the facts uncovered in Special Counsel Mueller’s investigation become public and serve as the basis for whatever accountability is necessary. Our democracy depends on it.”

While much of the report’s substance — including evidence of the Nixon campaign’s funding of the break-in at Democratic National Committee headquarters and the president’s role in the subsequent coverup — has long been public, its structure and potential to serve as a template for others remained under seal.

Bates said that as a Starr prosecutor in 1997 he learned that despite the potential for the “road map” to present a legal model for future investigations, such as Mueller’s, it was not publicly available when he asked the National Archives for a copy to study.

“It is one of the only precedents of a report that has had to go through that kind of process [under grand jury secrecy rules] to get to the House for consideration as grounds for impeachment,” Bates said in an interview. “If Mueller could say, ‘We have structured this report the way Leon Jaworski did in 1974, and Judge Sirica approved it,’ that might be persuasive in this case.”

Recent Mueller Witnesses?

Washington Post, Mueller probes timing of WikiLeaks release of Podesta emails, Robert Costa, Carol D. Leonnig, Rosalind S. Helderman and Manuel Roig-Franzia, Oct. 31, 2018 (print edition). The special counsel investigation is pressing witnesses about longtime Trump ally Roger Stone’s private interactions with senior campaign officials and whether he had knowledge of politically explosive Democratic emails that were released in October 2016, according to people familiar with the probe.

As part of his investigation into Russia’s interference in the 2016 campaign, special counsel Robert S. Mueller III, right, appears to be focused on the question of whether WikiLeaks coordinated its activities with Stone and the campaign, including the group’s timing, the people said. Stone and WikiLeaks have adamantly denied being in contact.

On Friday, Mueller’s team questioned Stephen K. Bannon, President Trump’s former chief strategist, about claims Stone is said to have made privately about WikiLeaks before the group released emails that prosecutors say were hacked by Russian operatives, according to people familiar with the session.

Politico, Analysis: Has Mueller Subpoenaed the President? Nelson W. Cunningham, Oct. 31, 2018. A careful reading of court filings suggests the special counsel hasn’t been quiet. Far from it.

These months before the midterm elections are tough ones for all of us Mueller-watchers. As we expected, he has gone quiet in deference to longstanding Justice Department policy that prosecutors should not take actions that might affect pending elections. Whatever he is doing, he is doing quietly and even further from the public eye than usual.

But thanks to some careful reporting by Politico, which I have analyzed from my perspective as a former prosecutor, we might have stumbled upon How Robert Mueller Is Spending His Midterms: secretly litigating against President Donald Trump for the right to throw him in the grand jury.

As a former prosecutor and Senate and White House aide, I predicted here last May that Mueller would promptly subpoena Trump and, like independent counsel Kenneth Starr back in 1998, bring a sitting president before his grand jury to round out and conclude his investigation. What Trump knew and when he knew it, and what exactly motivated his statements and actions, are central to Mueller’s inquiry on both Russian interference and obstruction of justice.

Nelson W. Cunningham has served as a federal prosecutor in the Southern District of New York under Rudy Giuliani, general counsel of the Senate Judiciary Committee under then-Chair Joe Biden, and general counsel of the White House Office of Administration under Bill Clinton.

Politico, Trump denies he’s already in a Mueller subpoena fight, Darren Samuelsohn, Oct. 31, 2018. The special counsel appears to be locked in a legal battle with a mysterious Russia probe target who is fighting a subpoena.

President Donald Trump and his lawyers pushed back in force Wednesday against a Politico op-ed suggesting the president is already locked in a secret subpoena battle with special counsel Robert Mueller.

“No,” the president, shaking his head, told reporters on the White House lawn as he prepared to fly to Fort Myers, Fla., for a midterm campaign rally.

Trump’s remarks echoed those of several current and former members of his personal legal team who swung back against a POLITICO opinion piece written by Nelson Cunningham, a former federal prosecutor who was attempting to decipher a mystery legal battle that appears to involve an attempt to fight a Mueller subpoena.

Cunningham’s op-ed suggested Mueller may have already issued a historic subpoena for the president because of the “unusual alacrity” with which the federal judges weighing the case have considered the issue.

“At every level, this matter has commanded the immediate and close attention of the judges involved — suggesting that no ordinary witness and no ordinary issue is involved,” wrote Cunningham, who worked under then-U.S. attorney Rudy Giuliani in the Southern District of New York and later served in the Clinton administration.

ABC News, Conspiracy theorist becomes key figure as Mueller builds case, Ali Dukakis, Oct. 31, 2018. Self-proclaimed conspiracy theorist Jerome Corsi [right] returned to Washington, D.C., again this week for more closed-door meetings with special counsel Robert Mueller’s investigators, and on Friday is scheduled to make a second appearance before the federal grand jury probing Russia interference in the 2016 U.S. presidential election, ABC News has learned.

Reached by ABC News on Wednesday, Corsi’s lawyer, David Gray, declined to comment on the matter.

Corsi, who until recently served as the Washington, D.C., bureau chief for the controversial far-right media outlet Infowars, is one of at least 11 individuals associated with political operative Roger Stone — a longtime and close ally of President Donald Trump — who have been contacted by the special counsel.

Much remains unknown about Mueller’s interest in Stone. But in recent weeks, Corsi has emerged as a central figure of interest to Mueller as he builds his case, sources confirm to ABC News. Corsi, who Stone told ABC News he has known for years, has frequently appeared with Stone on-air for Infowars, where Stone currently serves as a contributor.

Mueller’s interest in Corsi is believed to stem from his alleged early discussions about efforts to unearth then-candidate Hillary Clinton’s emails. The special counsel has evidence that suggests Corsi may have had advance knowledge that the email account of Clinton’s campaign manager, John Podesta, had been hacked and that WikiLeaks had obtained a trove of damning emails from it, two sources with direct knowledge of the matter told ABC News.

Oct. 15

Lawfare, Jaworski Road Map to be Mostly Unsealed, Stephen Bates, Jack Goldsmith, Benjamin Wittes, Oct. 15, 2018. The significance of the document is both historical and contemporary. The historical significance is obvious. Watergate has a spawned a huge literature. Jaworski’s referral is described in that literature, but it has remained under wraps longer even than the identity of Deep Throat.

The contemporary significance is subtler. Mueller is today, according to many press accounts, writing some kind of report — at least on allegations of presidential obstruction of justice, maybe on other matters too. There exist only a few possible models for such a report. In some ways, the Road Map is the one that history has treated most kindly, but it has done so, ironically, without ever seeing it; the documents remains sealed by the National Archives because of grand-jury secrecy rules. We argued that it was time for it to see the light of day.

We actually were not the first to do so. Geoffrey Shepard, a California lawyer who worked for Nixon, sought the Road Map’s release some time back — along with other material — but the matter languished before Judge Royce Lamberth. A few days after we filed our petition, however, the Shepard matter came back to life. The case was transferred to Chief Judge Howell on Sept. 20. Our case, which was also assigned initially to Judge Lamberth, was transferred to Chief Judge Howell the same day. A couple of weeks later, on Oct. 4, the government filed a status report in Shepard.:

On June 22, 2017, the National Archives and Records Administration (“NARA”) delivered to Judge Lamberth’s chambers an ex parte, in camera submission, in accordance with the court’s Memorandum and Order of May 23, 2017. That submission consisted of (a) the declaration of Martha Murphy, NARA’s Chief of the Special Access and FOIA Branch, addressing the first Watergate grand jury’s report and recommendation (the “Roadmap”); (b) an index of the Roadmap, plus an illustration of how the Roadmap appeared, both attached to the Murphy declaration, and (c) a box containing a copy of the entire Roadmap, as it was transmitted to the House of Representatives.

The Murphy declaration explained that a majority of the Roadmap had already been made public by the House Judiciary Committee, and thus no longer constituted secret grand jury information. With respect to the non-public portions of the Roadmap, which contain secret grand jury information, NARA was awaiting Judge Lamberth’s ex parte review and decision before it proceeded to conduct an archival review to determine which portions could now be opened to the public. That remains the status to date. Similarly, given the pendency of the ex parte review, the government has not conferred with any individuals who may be affected by a potential disclosure.

Judge Howell did not waste time. Her order, which followed this status report by only a week, directs that “NARA shall promptly begin the process of reviewing and releasing the 2-page summary, 53 statements, and 81 documents described in its ex parte, in camera submission that are included in the House Judiciary Committee Report or that have otherwise been made publicly available.

She also ordered “that the Department of Justice shall file, on November 9, 2018, and every 30 days thereafter, a status report informing the Court of the status of NARA’s review process” and that the department “shall, by October 22, 2018, review the 16 remaining documents in the Road Map that NARA has not been able to locate publicly, and shall contact any individuals whose privacy might be implicated by the release of those 16 documents to ascertain their views regarding whether those 16 documents may be released.”

Sept. 15

Lawfare, The Watergate ‘Road Map’ and the Coming Mueller Report, Stephen Bates, Jack Goldsmith, Benjamin Wittes, Sept. 14, 2018. 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.

2017

Aug. 29

MSNBC, Comey friend Benjamin Wittes calls for impeaching Trump, Chris Hayes, Aug. 29, 2017. Reporter Benjamin Wittes, shown above in a Brookings Institution photo, went from covering the story to being the story earlier this year, when he revealed that his friend, former FBI Director James Comey, had been trying to maintain distance from Trump amid the Russia inquiry before the president.