Morning Canary – The Road Map to Nixon

Canary. Photo by 4028mdk09.

On Friday, September 14, Lawfare’s Stephen Bates, Jack Goldsmith and Benjamin Wittes reported that on the day before the three of them “filed a petition … to the U.S. District Court for the District of Columbia” and asked the court to unseal what is known as the “Road Map,” “one of the few significant pieces of Watergate history that remains unavailable to the public.”

The Road Map, they explain, is what then Special Prosecutor Leon Jaworski and his office wrote as the referral for impeachment he filed to the House, who had already started impeachment proceedings. As speculation continues about whether or not Special Counsel Robert Mueller will write a report of his findings and how that would be released, to Congress or to the public, Bates, Goldsmith, and Wittes said Mueller only has “two historical models of such documents to draw on: One, the so-called Starr Report,” which is a “lengthy narrative” that “evaluated the legal relevance of the evidence he referred” and is publicly available and Jaworski’s Road Map “was reportedly spare.”

Jaworski concluded that the best course of action would be for the grand jury, through Judge Sirica, to provide the House [of Representatives] 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.

Lawfare; Sept 14 2018

The Road Map has remained locked away in the National Archives for 44 years and remains sealed due to grand-jury ‘secrecy rules.” It’s not that the Road Map is a secret, per se. NPR reports that Leon Jaworski “told an interviewer in 1977 that preparing the road map amounted to one of the most critical moments of his probe,” and that they had, “succeeded … to get the courts to permit the grand jury report to go to the House Judiciary Committee,” which aided them in their own investigation which, Jaworski said, they were “way behind. It hadn’t gotten off the ground.”

The Justice Department held that the president could not be indicted, however. Accountability required impeachment, which must begin in Congress — in the House Judiciary Committee — and Jaworski’s office set down a plan for how, legally, to transmit their work to members of Congress.

NPR; Oct 15 2018

Bates wrote in September they believe the road map is a significant piece of history that not only has historical relevance, but is “also keenly relevant to current discussions of how Mueller should proceed,” and argued, “it was time for it to see the light of day.”

Stephen Bates has been down this road before, though not by filing a formal petition. He worked on the Ken Starr investigation in 1997 and at the time was “looking for precedent” how a referral could be sent to Congress. In an interview with NPR, Bates recalls (as well as mentions in the September Lawfare article it wasn’t from lack of trying), “the National Archives let me see a lot of stuff from the Watergate special prosecutor that was very interesting…but when I asked to see the road map that was sent up to the House by Leon Jaworski, they said no.”

On Oct 11, Politico reported, in a separate request made by Geoffrey Shepard, “a California lawyer who serve as a member of Nixon’s defense team” who has been trying since 2011 to have information about the Nixon grand jury’s activities unsealed, “Chief U.S. District Court Judge Beryl Howell granted a request Thursday to unseal a large chunk of the so-called road map that a federal grand jury in Washington sent to the House Judiciary Committee in early 1974.”

In her order Thursday, Howell said the National Archives informed her that the “road map … consists of a two-page summary statement, followed by 53 individually numbered statements,” as well as 97 supporting documents.

Archivists said 81 of the documents had been made public elsewhere, chiefly in a House Judiciary Committee report. Howell’s order instructs the Archives to release those, but also to review the two-page summary and the 53-point list for disclosure.

The judge also went further, ordering officials to contact the individuals mentioned in the 16 remaining documents and determine whether they would object to disclosure. She told Justice Department lawyers to report back to her by Oct. 22 on their findings.

Politico; Oct 11 2018

Shepard’s response to Judge Howell’s order was that it was “breathtaking” saying, “the details she gave about the road map had never been officially confirmed,” and that progress is being made by ordering “further efforts by the Department of Justice,” Politico reported Shepard told them last Thursday.

Political speculates that “what may have spurred action on Shepard’s 7-year-old petition” may have been “a similar request filed last month” by Lawfare’s Bates, Goldsmith and Wittes.

While Bates, Goldsmith and Wittes have their own motivation about why they want the road map unsealed, Shepard’s motivation, as one of Nixon’s lawyers, wants to see “what Jaworski’s team told the grand jury. He suspects that some of the claims were not accurate.”

Larry Schwartztol, the lawyer with the non-profit Protect Democracy, who represented Bates, Goldsmith, Witte in their petition, says he believes the road map is relevant “to the intrinsic, ongoing interest in Watergate” and that “that alone would be sufficient to justify releasing” the materials, however, he adds, “but there’s real urgency in this instance to getting the road map onto the public record.”

John Dean, “one of the few living individuals whose conduct the Road Map presumably describes,” writes Lawfare, “filed a declaration” saying he had no objection to the information being made public.

With most of the significant information already made public and only a matter of time before most, if not all, the remaining pieces come to light, there is another significant battle going on over a broader issue: whether or not judges have any authority to release historical grand jury materials.

Politico reported, “The Justice Department has argued they do not, but Lamberth, Howell, and other courts across the country have ruled that judges have that power. A three-judge panel of the D.C. Circuit Court of Appeals heard vigorous arguments on that issue last month. No decision has yet been issued.”

That case involves a request for a 1956 grand jury investigation involving the disappearance of Jesus Galindez, a Columbia University lecturer and political activist. The petitioner in that request is an author who believes Galindez “was kidnapped from New York, taken to the Dominican Republic and murdered,” along with allegations of belief that either the CIA was involved in a cover up or in the murder itself.

On that three-judge court sits Judges Douglas Ginsburg, Sri Srinivsasan, and Greg Katsas; a Reagan appointee, an Obama appointee, and a Trump appointee, respectively.

On A Side Note (Opinion)

You have to read Lawfare’s Sept 14 piece, it’s long, but really informative, I can’t begin to do it justice here. You can find their follow up piece, here.

The NPR and Politico’s two pieces are worth a quick glance as well just to pick up any extra pertinent details to file away for when any of the documents are made public and to be up-to-date on the undercurrent cases that seem to be swirling as well. I’ll run any updates I run across and or when they publish the road map to Nixon. Stay tuned.

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