Criminal Justice & the Rule of Law

Road Map to Impeachment Proceedings? What Watergate Can Teach Us About Unsealing the Mueller Report

Stephen Bates
Wednesday, April 3, 2019, 1:05 PM

At 11:00 a.m. on March 1, 1974, lawyers and reporters gathered in Judge John Sirica’s courtroom in Washington. The Watergate special prosecutor’s office had issued its usual bland announcement: A “proceeding” would take place. In court, Special Prosecutor Leon Jaworski said that the grand jury had materials to submit to the judge: an indictment and a sealed report. The grand jury foreman, a Library of Congress trade analyst named Vladimir Pregelj, handed Judge Sirica two sealed envelopes.

The House Judiciary Committee, 1974 (Source: Wikimedia Commons/U.S. House of Representatives Photography Office)

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At 11:00 a.m. on March 1, 1974, lawyers and reporters gathered in Judge John Sirica’s courtroom in Washington. The Watergate special prosecutor’s office had issued its usual bland announcement: A “proceeding” would take place. In court, Special Prosecutor Leon Jaworski said that the grand jury had materials to submit to the judge: an indictment and a sealed report. The grand jury foreman, a Library of Congress trade analyst named Vladimir Pregelj, handed Judge Sirica two sealed envelopes. The judge opened them—“the sound of Judge Sirica’s letter-opener slitting the end of a manila envelope ... took on the clarity of a tap dripping in a quiet house at midnight,” wrote Linda Charlton in the New York Times—and skimmed the contents. “[T]his is the material made reference to in the document you just read,” said one of Jaworski’s prosecutors, Richard Ben-Veniste. He set an overstuffed brown briefcase in front of the court reporter. Judge Sirica said that it “will be held in the custody of this court in a safe place until further order of the court,” the grand jury filed out and court adjourned.

The briefcase contained transcripts of testimony, subpoenaed documents, White House tapes and other items of grand jury evidence, along with an index called the Road Map. The House Committee on the Judiciary was weighing the impeachment of Richard Nixon, and committee members had requested the prosecutors’ evidence, even demanded it. Yet getting the materials from the prosecutors and the grand jurors to the House members and staff working on impeachment—which meant moving the briefcase less than a mile, from the federal courthouse in Judiciary Square to the House Judiciary Committee offices on Capitol Hill—raised thorny, unprecedented legal issues. It required a court order. It nearly required an act of Congress.

When I was working for Independent Counsel Kenneth W. Starr in the 1990s, I asked the National Archives for a copy of the Road Map. The archivist said no. It was still under judicial seal. After I left the independent counsel’s office, I continued the quest. I tried the Jaworski papers at Baylor University and the Sirica papers at the Library of Congress, in hopes that a stray copy might have ended up in public files. No luck. Along the way, though, I found materials that shed new light on law, politics and personalities, as they played out in the Watergate endgame. These materials included internal memos from the special prosecutor’s office, Judge Sirica’s notes and a transcript of a closed hearing. They helped contextualize the Road Map, which at long last became public in late 2018.

Now, revisiting the events of 1974 provides context for the Mueller report, another document compiled by a team of special prosecutors that presumably details misconduct on the part of a sitting president. The process for getting the Watergate prosecutors’ evidence to Capitol Hill was rife with conflict—over institutional prerogatives, understandings of law and duty, and much else. With the many senators and House members demanding the instant delivery of Mueller’s report and underlying evidence to Congress, history may be repeating itself.

* * * *

Some members of the House of Representatives raised the possibility of impeaching President Nixon in spring 1973, after several administration officials and White House aides resigned over their involvement in Watergate. In 1973—as now—the Democratic leadership discouraged impeachment talk. Not until October, following the Saturday Night Massacre (more on that shortly), did Speaker of the House Carl Albert authorize a preliminary impeachment inquiry.

To oversee the investigation, the Judiciary Committee hired John Doar, a former head of the Justice Department’s Civil Rights Division, who had worked closely with Attorney General Robert F. Kennedy. According to “High Crimes and Misdemeanors” (1978), by journalist Howard Fields, Doar seemed driven less by a sense of urgency than by a passion for exhaustiveness. He directed the staff to record each fact about the Nixon scandals on a three-by-five card, to be filed chronologically and cross-referenced. Some Democrats suspected that Doar, with his scrimshaw approach, was trying to delay impeachment until closer to the 1976 election, in hopes of boosting a presidential candidacy of Sen. Edward M. Kennedy. Meanwhile, Nixon and his defenders were pushing for a speedy impeachment vote before the Judiciary Committee understood the full scope of the scandal. “One year of Watergate is enough,” Nixon said in his 1974 State of the Union address.

As the impeachment inquiry struggled to gain traction, the Watergate Special Prosecution Force investigation was well along. Attorney General Elliot Richardson created the office on May 25, 1973, and swore in Archibald Cox, his former professor at Harvard Law School, as its chief. Five months later, Special Prosecutor Cox subpoenaed recordings from Nixon’s secret taping system. Nixon ordered Cox to withdraw the subpoenas and accept transcripts instead; Cox refused. On October 20, Nixon ordered Richardson to fire Cox. Richardson resigned rather than obey. (The conventional view, which Richardson himself promoted, was that he acted out of Yankee rectitude, but a member of Cox’s staff suspected that Yankee tribalism was at work too. In “Breach of Faith” (1975), Theodore H. White quotes James Doyle, press liaison for the special prosecutor’s office: “[I]f Elliot fired Archie, it meant that he could never walk down Beacon Street or across Harvard Yard again and hold his head high when he met friends.”)

Deputy Attorney General William Ruckelshaus likewise refused to fire Cox and resigned. The third-in-command, Solicitor General Robert Bork, heeded the president’s order and fired Cox. The Saturday Night Massacre, as it soon came to be called, provoked so great an uproar that Nixon complied with the tapes subpoena and agreed to appoint a new special prosecutor. On Nov. 1, 1973, Bork appointed Leon Jaworski, a Texas lawyer and the former president of the American Bar Association.

A draft of Nixon’s directive had ordered Richardson to fire Cox and the staff. According to his memoir, “Inner Circles” (1992), Alexander M. Haig Jr., the Army general serving as White House chief of staff, insisted on toning down the letter, and somehow, inadvertently, the provision for ousting the staff got dropped. Shortly after Jaworski started work, Haig tried to make up for the oversight by urging him, in a friendly way, to get rid of Cox’s prosecutors—anti-Nixon fanatics, according to Haig—and bring in his own people.

Several of those working for the Watergate Special Prosecution Force went on to write memoirs, including “The Right and the Power” (1976) and “Confession and Avoidance” (1979), by Jaworski; “Stonewall” (1977), by Richard Ben-Veniste and George Frampton Jr., as well as Ben-Veniste’s “The Emperor’s New Clothes” (2009); and “Not Above the Law” (1977), by James Doyle. Reading between the lines, one gets the impression that Jaworski didn’t like being told what to do; at times he responded to pressure by digging in. Haig, by suggesting that he get rid of the Cox lawyers, may have unwittingly guaranteed their job security.

Despite rejecting his advice about the staff, Jaworski respected Haig. They conferred privately, in person and by phone. Jaworski seemed to think of himself as a judicious problem-solver, cautious and methodical, intent on protecting institutions and pursuing the public interest, rather than a win-at-all-costs advocate. Haig claimed to have a similar perspective. “I’m not trying to save the President, Leon,” he said, according to Jaworski’s “The Right and the Power.” “I’m trying to save the presidency.”

At times, Jaworski’s relations with Haig may have been friendlier than his relations with subordinates. Many members of the staff never warmed to Jaworski. Cox had enjoyed debating issues and options at length, according to James Doyle, whereas Jaworski wanted to explore alternatives, make a decision and move on. The Jaworski-Haig relationship also alarmed some of the staff prosecutors; they wondered what commitments Jaworski was making without consulting them. Jaworski seemed to keep other matters to himself, too. As misgivings mounted over Jaworski’s actions and objectives, the distrust reached the point that for some on the staff, according to Doyle, “Leon Jaworski had become as big a problem as Richard Nixon.”

Doyle devotes a page and a half of his book to office speculation over Jaworski’s occasional late-afternoon absences. “Shortly before 5:00 p.m. he would suddenly put on his overcoat and walk out, carrying his black attaché case,” he writes. “He would inform his secretary that he would be back shortly, and he always was.” Was he secretly rendezvousing with Haig? With defense lawyers? Some members of the staff talked of trying to tail him, but they figured he’d catch them.

Later, after Watergate was over and Jaworski had returned to Texas, Doyle asked him about it. Jaworski replied that sometimes when he knew he’d be working late, he liked to take a walk to clear his mind. He carried an empty briefcase so that he could claim to be in a rush if somebody on the street wanted to talk. When Doyle told him of the staff’s suspicions, Jaworski said he found it all “somewhat saddening.”

* * * *

Under Cox, the Watergate prosecutors had amassed evidence that, they believed, proved beyond a reasonable doubt that Nixon had committed felonies. Several prosecutors wanted to indict the president. So did the grand jurors. Apparently when alone, with no prosecutor in the room, the grand jurors took a straw poll on whether Nixon ought to be indicted. All who participated raised their hands, and many raised both hands. But the Justice Department, in an opinion from the Office of Legal Counsel and in a court filing by Solicitor General Bork, took the position that a sitting president cannot be indicted.

According to the regulations establishing it, Special Prosecutor Jaworski’s office was subject to “the administrative regulations and policies of the Department of Justice,” but “the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General’s statutory accountability.” Jaworski evidently didn’t consider himself bound by the Justice Department’s position on presidential indictability. A report from the Watergate office, released in 1975, summarizes “an intense debate among members of the Special Prosecutor’s staff” over whether a president could be indicted; it makes no mention of the Justice Department’s stance on the issue. In any event, Jaworski concluded that the Supreme Court would not allow indictment of a president for obstruction of justice and related crimes when the House was already considering whether the same actions warranted impeachment.

(Whereas Jaworski was required to comply with Justice Department “administrative regulations and policies,” the current regulations require Mueller or any other special counsel to follow a longer and seemingly more comprehensive list—the department’s “rules, regulations, procedures, practices and policies.”)

Some Watergate prosecutors considered it vital to publicly disclose the president’s criminal culpability. “[T]he American people have a right to know the prima facie, felonious evidence against their President,” wrote Deputy Special Prosecutor Henry Ruth. (These memos are now in the National Archives.) One possibility was to name Nixon an unindicted co-conspirator. Jaworski rejected this approach too. He considered it unfair to accuse the president of a felony when he lacked any recourse for clearing his name—to “brand him indelibly without an opportunity to defend himself,” he said. In short, the president couldn’t be named an unindicted co-conspirator because he deserved a trial, and he couldn’t be put on trial because he was president. (Ultimately the prosecutors got the grand jury to name Nixon as an unindicted co-conspirator secretly, with the status to be announced later, as part of proceedings in the trial of Watergate defendants.)

Another option was to transmit the evidence to the House Judiciary Committee’s impeachment inquiry. The committee wanted the evidence. In fact, Chairman Peter Rodino was blaming the special prosecutor for the committee’s lack of progress. “If we start from scratch, it could go on from now to God knows when,” Rodino told reporters.

Jaworski recognized that Congress needed the evidence. The committee, he said later, was having “real difficulty in doing its work. Way behind. It hadn’t gotten off the ground.” But he didn’t want his office dragged into a partisan tussle, and he worried that Congress would prejudice the planned Watergate trial by releasing the evidence publicly. Doar, the Judiciary Committee investigator, told Jaworski that impeachment of the president was far more important than prosecutions of underlings. Several of the prosecutors made the same point. But Jaworski maintained that they must protect the trials. “If we are to participate in jeopardizing the fairness of their trials,” he said in a memo, “we have no business even indicting these individuals.” He rejected the argument that the office was duty-bound to help the House no matter what, although he did acknowledge the risk of “sitting down between the chairs” and leaving Nixon unpunished, if the House had constitutional authority to act against the president but no evidence, and the prosecutors had evidence but no constitutional authority.

Ultimately, Jaworski decided to try to transmit grand jury evidence to the House, with several precautions that he hoped would protect the trial and his office. To reduce the appearance of partisanship, he decided to have the evidence formally transmitted by the grand jury rather than by the prosecutors, which had the added advantage of giving the grand jurors a role that might defuse their eagerness to indict the president.

Jaworski also wanted the House to formally request the materials, either by a petition addressed to Judge Sirica or by a statute, and to adopt secrecy provisions to guard against publicity that might taint the criminal trial. The Judiciary Committee did adopt secrecy rules, but it wouldn’t formally seek Judge Sirica’s help. Members of the leadership maintained that the Constitution gives the House the exclusive power to impeach a president; asking the courts for help, via statute or formal request, would be an admission of weakness. The approach seemed fussy and counterproductive to Jaworski, he says in “The Right and the Power,” but in a sense the two offices’ positions were mirror images of each other: Jaworski wanted to protect law from politics, and the House wanted to protect politics from law.

The final obstacle to transmitting the evidence was Federal Rule of Criminal Procedure 6(e), which prohibits government lawyers from disclosing matters that occur before a grand jury, with very few exceptions. Knowingly violating Rule 6(e) isn’t just a blunder; it’s a crime, prosecuted as criminal contempt. After prosecutors researched the issue, Jaworski concluded that they could present a reasonable argument for a 6(e) exception to Judge Sirica.

But if the evidence did reach the House, would the members understand it? Some prosecutors thought not. They argued for giving the House an explanatory report of some kind, perhaps a narrative detailing the evidence, or an outline of factual and legal conclusions, or a statement declaring that the grand jury would have indicted Nixon if he weren’t president. Though he agreed that the House would face “a formidable task” in making sense of the evidence, Jaworski resisted the idea of a report. The evidence spoke for itself, he said, and Judge Sirica would never approve an accusatory report. (He and the judge evidently had discussed it.) Finally, prosecutors drafted a neutrally worded index to the evidence that they called the Road Map, and Jaworski agreed to include it.

After the handoff in court on Friday, March 1, 1974, Judge Sirica put the envelopes and briefcase in a safe. Prosecutors and defense lawyers returned to the courthouse twice the following week, for a closed hearing and then a public hearing. The question, Judge Sirica told the lawyers in the closed hearing, was what to do with the briefcase, in light of Rule 6(e): “whether or not I should send this over to the Committee or expunge it from the record.”

In filings, the prosecutors urged Judge Sirica to send it as soon as possible: The grand jurors had recommended transfer of the material “strongly and unanimously,” House secrecy rules mitigated the risk of prejudicial pretrial publicity, and any delay in handing over the evidence would “needlessly impede the House in the discharge of its critically important function.” Based on his separation-of-powers theory, Rodino refused to file a motion seeking the materials, but he did weigh in by letter to Judge Sirica. The House needed the materials, he said, in order to perform “its most awesome constitutional responsibility.”

Nixon’s lawyer, James St. Clair, didn’t oppose transmittal of the evidence—“[t]o my surprise,” Judge Sirica writes in “To Set the Record Straight” (1979)—but some of the Watergate defendants did object. Under Rule 6(e), a grand jury has no power to issue a report, said John J. Wilson (“[m]y old friend,” writes Sirica), who represented H. R. Haldeman. “[A] presentment, if you want to call it as such, hasn’t been allowed in the District of Columbia since you and I were boys,” Wilson told the judge, and “[y]ou have no power to send it to the Judiciary Committee.”

Two weeks later, on March 18, Judge Sirica ruled that the materials could be turned over to the House, notwithstanding Rule 6(e). In a written opinion, he recounted case law on both sides of the issue. The factual, nonaccusatory nature of the Road Map, he said, distinguished it from grand jury reports that judges had rejected. He also stressed that the evidence would be released solely to the House, not to the public at large; that the Judiciary Committee had implemented secrecy provisions; and that the individual whose rights were most directly affected, Nixon, did not object. The D.C. Circuit declined to intervene.

At 9:30 a.m. on March 26, Judiciary Committee Special Counsel Doar and the special counsel to the minority, Albert E. Jenner Jr., entered Judge Sirica’s chambers. There they spent about two hours inventorying the grand jury materials, according to a typed, all-caps note in the Sirica papers in the Library of Congress. When they finished, four Federal Protective Service security officers from the courthouse accompanied Doar and Jenner from the chambers to the street, and then, emblematically, the Capitol Police took over. The House lawyers returned by car to their offices, with Doar in the backseat, briefcase on his lap, according to a thorough account by William Greider in the Washington Post headlined “Famous Brown Satchel Finds Its Way Up to Capitol Hill.” The typed note in the Sirica papers concludes: “AS FAR AS THE COURT IS CONCERNED, THE TRANSACTION IS NOW COMPLETE.”

Starting in May, the Judiciary Committee met in secret for 10 weeks to examine and evaluate the evidence. Members and staff drafted five articles of impeachment. At the end of July, the committee adopted three of them. On August 9, before the House of Representatives had a chance to vote on the articles, Nixon resigned.

Jaworski and Judge Sirica believed that the contents of the briefcase played a critical role in bringing the Nixon presidency to an end. So did a member of the Judiciary Committee. “We were empowered to act,” Barbara Jordan later said, “but we were never going to .... Without Jaworski, we would never have got to the matter, not even to the beginnings of impeachment.”

Even after the president’s resignation, the Jaworski office’s Road Map, which helped the House make sense of the grand jury evidence, remained unavailable to the public, still under the seal imposed by Judge Sirica. Although the memoirs by Jaworski and his staff reveal a lot about the evidence against the president, the Watergate Special Prosecution Force kept its official secrets. In a report issued in 1975, the office said that it would not disclose any information about unindicted wrongdoing, including on the part of Nixon. For the office “to make public the evidence it gathered concerning the former President and others who were not charged with criminal offenses,” the prosecutors wrote, “would be to add another abuse of power to those that led to creation of a Special Prosecutor’s office.”

In 2018, Benjamin Wittes, Jack Goldsmith and I, represented by lawyers from Protect Democracy, filed a petition in federal district court in Washington seeking to make the Road Map public. We argued that the passage of time had virtually eliminated the privacy concerns, that the document had great historical value, and that it might prove to have additional value as a template for Mueller or other special counsels who want to turn over evidence and an explanation of it to Congress. Judge Beryl Howell ordered the Road Map released, and the National Archives posted it (and related materials) online.

* * * *

Watergate holds plenty of lessons. Three, I think, are especially relevant today.

First is the weight of law and tradition against public disclosure of grand jury evidence. Sen. Chris Coons recently told NPR that “Leon Jaworski, the special prosecutor during Watergate, in the interest of transparency, directed the full release of the Watergate investigation.” It wasn’t so simple. Moving the briefcase from Judiciary Square to Capitol Hill required extensive legal research by Jaworski’s staff, the adoption of special confidentiality rules by the House Judiciary Committee and a court order from Judge Sirica. Jaworski wanted an act of Congress, too, or at least a formal motion, but Congress wouldn’t oblige. Even after all that, the materials reached only House members; the public didn’t get to see the Road Map for decades. The Watergate precedent could make it easier to disclose the Mueller report and some of the grand jury evidence this time, but it still won’t be easy. Rule 6(e) is a substantial hurdle.

Some of the president’s opponents may hope the Mueller report will say that Trump probably committed obstruction of justice, but the evidence falls a hairsbreadth short of the beyond-a-reasonable-doubt trial standard, which is why Mueller’s office declined to make a prosecutorial recommendation. That might happen, in these norm-fractured times, but the Road Map summarizes evidence without reaching any legal conclusions. The Watergate prosecutor’s office maintained that the public revelation of unindicted wrongdoing ordinarily constitutes an abuse of power.

Second, Congress still insists on its constitutional primacy while expecting others to do its legwork. The House in 1974 took the position that it wouldn’t ask the courts for help; instead it demanded the evidence amassed by the special prosecutor, who in turn was using the courts. It’s a constitutional muddle: The legislative branch expects the executive branch, backed by the judicial branch, to provide evidence for the possible impeachment of the chief executive. Yet Congress, in demanding evidence covered by Rule 6(e), won’t acknowledge the primacy of the judiciary in ruling on requests for access to grand jury material.

At least the House instigated a Watergate impeachment inquiry on its own. By contrast, the House in 2019 has been waiting on Mueller before giving serious thought to an impeachment inquiry. (Admittedly, the Democratic majority is new.) When Congress outsources the work of an impeachment investigation, and when the Justice Department holds that an incumbent president can’t be indicted, the result is a system in which the executive branch can investigate but cannot prosecute, whereas the legislative branch can impeach but, at least for now, will not investigate. Whatever the Framers intended, surely it can’t be this.

Finally, the Watergate memoirs and memos illustrate the sort of disputes and distrust that can arise in a high-stakes, history-is-watching investigation of a president. Even if their trust in him never wavered, Mueller’s prosecutors probably disagreed with him at times and on important matters—including, possibly, the decision not to subpoena President Trump to testify, or the decision not to determine whether the president’s actions constitute obstruction of justice. We’re not likely to see the full Mueller report and underlying evidence, and what we do see probably won’t explain everything. Mueller, Attorney General William Barr and others may fill in some gaps in congressional testimony. As for what went on inside the Mueller office, maybe, as with the Watergate prosecutors, there will be a shelf-load of memoirs from the team in a few years. Even if the prosecutors remain tight-lipped, the National Archives someday will make public memos, drafts and other materials that shed light on the internal workings of the office. As with the Watergate Road Map, this story may take decades to be fully told.

Stephen Bates is an Associate Professor in the Hank Greenspun School of Journalism and Media Studies at the University of Nevada, Las Vegas. A graduate of Harvard Law School, he is the author of “An Aristocracy of Critics: Luce, Hutchins, Niebuhr, and the Committee That Redefined Freedom of the Press” (Yale, Oct. 2020).

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