On Oct 16 TNB brought readers The Road Map to Nixon, a story about the cases involved in getting released the final piece of the Nixon investigation – the final report of the grand jury called the “Road Map” – that have been locked and sealed away for 44 years due to the grand jury ‘secrecy rules,” and how Special Prosecutor Leon Jaworski was able to submit that report to Congress.
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.”
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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.”
TNB; Oct 16 2018
It wasn’t that the Road Map itself was a secret, but the contents the report contained were. It’s a legal battle being fought now, testing if judges have the right to release grand jury inquiry findings. But what is still at question, how does that report get released, and to whom? Can it be made public? If our Constitution charges that impeachment proceedings of a sitting president have to begin in the House, specifically to the House Judiciary Committee, but grand jury findings are secret how are those findings released to aid Congress in its own investigation if they find themselves charged with such an incident, as was the case in the Nixon investigation?
Leon Jaworski was the second prosecutor assigned to the Nixon scandal investigation and was appointed after Nixon, in what is infamously dubbed the “Saturday Night Massacre,” on October 20, 1973, systematically goes through his Attorney General, Deputy Attorney General to finally his third most senior in line in the AG office looking for someone to fire Archibald Cox, the first special prosecutor appointed to investigate Nixon, after he discovered there were secret recordings. Law professor and attorney Leon Jaworski was then appointed as Special Prosecutor.
According to an NPR report, 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 2015
Judge Howell’s order instructed the U.S. Archives to release what is known as the “road map,” to make public what amounted to “a two-page summary statement, followed by 53 individually numbered statements, as well as their 97 supporting documents” was released, Lawfare’s Jack Goldsmith and Benjamin Wittes reported Wednesday.
For more on Lawfare’s Goldsmith and Wittes litigation and the Road Map see their stories, here and here.
In a series of posts, Wittes informs readers the National Archive’s release had just happened and presented the rolled-out pdf files specifically titled, “Grand Jury Report and Recommendation Concerning Transmission of Evidence to the House of Representatives,” otherwise known as, the “Road Map.” Archives, they write, has in addition, released “a trove of related material.”
Watergate Road Map
The Road Map is officially titled “Grand Jury Report and Recommendation Concerning Transmission of Evidence to the House of Representatives” and was delivered to the United States District Court for the District of Columbia under seal on March 1, 1974. Chief Judge John Sirica then provided it to the House Judiciary Committee. The Road Map, along with related documents that analyze the evidence collected by the Special Prosecutor, is located in three boxes in Record Group 460: Records of the Watergate Special Prosecution Force; Special Prosecutor’s Office Files; Records Relating to Richard M. Nixon.
The Road Map consists of a two-page summary, a set of 53 numbered statements of fact, and 97 supporting documents corresponding to each statement of fact. Many of the numbered statements and 90 of the supporting documents were published in the multi-volume 1974 “Statement of Information,” hearings before the House Judiciary Committee or have been located elsewhere in the public domain. Redactions in this October 31, 2018, release indicate the statements or supporting documents that could not be confirmed as existing in the public domain and which therefore remain grand jury information protected by Federal Rule of Criminal Procedure 6(e).
(Following this introduction release onto the public domain portal of the National Archives is a Catalog Series of all documents. The Road Map is Series #: 6037108. After the publication, they have “clarified that Road Map documents listed as File #5 were released to the public for the first time on Oct. 31. All other material, including 5Aand 5B, were previously available in the Archives’ research room but has only just been digitized.”)
Stephen Bates explained in September, that while the Road Map is a significant part of history that has a historical relevance, but that it is “also keenly relevant to current discussions of how Special Prosecutor Robert Mueller should proceed.” Bates worked on the Ken Starr investigation in 1997, and at that time, he was “looking for precedent” how a referral could be sent to Congress. Archives, he said, “let me see a lot of stuff … but when I asked to see the Road Map … they said no.”
What Goldsmith and Witte then report after reading, is that the first thing that struck them 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 State House of Representatives Committee on the Judiciary Relating to Questions of Impeachment.” It is signed by “Foreman, June 5, 1972 Grand Jury.”
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.
Lawfare; Oct 31 2018
Jaworski’s Road Map, the Washington Post reports, “is known colloquially as the “Sirica’s road map,” for then-Chief Judge John J. Sirica, who approved the creation and it’s transmission to lawmakers.” District Court for the District of Columbia Judge Beryl Howell is Sirica’s “modern-day successor” who has made, what may in the future be considered precedence, the decision to release that grand jury report.
In Jaworski’s 1976 memoir, “The Right and the Power: The Prosecution of Watergate,” he writes, “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.”
On A Side Note (Opinion)
I just wanted to bring you up-to-date on the status of this one. I recommend taking a few minutes and popping over to Lawfare’s reporting and reading their entire analysis so far.
The Watergate Road Map Unsealed
The Watergate Road Map: What It Says and What It Suggests for Mueller
Or to the National Archives – Watergate Road Map
It’s sort of a pretty big deal, in my opinion, historically speaking. You could just feel the excitement of these three legal analysts jumping off the pages as they give us their first update analysis of their treasure. Right now, everyone is still pouring over the Road Map and the all the other “trove of related materials,” so I image we well be getting plenty of historical analysis separate from more updates for the possible ‘map’ for Mueller.