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In the text, near the top of the document, someone wrote: "Filed under seal, March 1, 1974." The red typewritten letters also read as follows: "On October 11, 2018, unsealed, from Chief Justice Beryl A. Howell, US District District Court of Columbia, Order No. 11-mc-44 (BAH).
Jaworski's "road map", Watergate's last big secret document, was released Wednesday when the National Archives released it under Justice Howell's decision earlier this month. It was born for the first time in forty-five years at a remarkable time: a different special prosecutor examines the conduct of a different president and would have envisioned – as Watergate Attorney Leon Jaworski has already done – to write a report on the subject.
The publication of this document owes much to the Protect Democracy legal team, which represented Stephen Bates and the two of us in the search for his loosening.
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So, what does the document say?
The story contained in the road map itself is fascinating. But we are not historians of Watergate and will leave the evaluation of its content to others. Our interest in the document is mainly contemporary, secondarily that of Watergate enthusiasts. Our interest in the roadmap lies in the news: what should we learn from the behavior that Robert Mueller should have when he plans to report on the information gathered by his investigation?
The first striking feature of the "road map" is that it is not written at all in Jaworski's voice. Unlike the Starr report, which was a report of prosecutors who investigated President Bill Clinton, this report is a judicial document, a "report and recommendation" of the Grand Jury itself, associated with a document entitled "Material Held by the Grand Jury Important information on matters falling within the jurisdiction of the US House of Representatives Committee on the Judicial System in Indictment. "Report not signed by Jaworski but by" Foreman, June 5 1972, Grand Jury. "
In other words, the document is designed not as a report of the prosecutor on its findings, but as an action by the same citizens who delivered an indictment against Watergate's conspirators. It is even, in its very first sentence, conceived as an extension of this indictment. The Grand Jury immediately declares to have "heard the testimony which led him to return the indictment filed herewith." He also heard testimony that he considered that, as part of his current investigation, the issues falling within the main competence of the House Committee of Representatives on the Judiciary were to determine whether there were sufficient grounds for the House of Representatives to exercise its constitutional power. to remove Richard M. Nixon, President of the United States ".
This exploitation of the moral and legal power of the grand jury is not a surprise. It has long been known that the road map is a grand jury document. It is no less striking, in part because it is profoundly different from the Starr report, which was largely the action of Starr and his team. This does not seem to be a pretext either, although the roadmap was certainly written by Jaworski's staff. The grand jury in the Watergate case was extremely active and some of its members wanted to bring criminal proceedings against Nixon. Jaworski had to persuade the grand jurors to name the president as a co-conspirator not charged. The reference to the roadmap therefore derives from actions in which the grand jurors are active participants.
The second striking feature of the document is its visibility. All descriptions of the document over the years have emphasized this point. For example, James Doyle, Jaworski's press officer, described it in his book on the Watergate Inquiry as "a mere fifty-five page document, with only a sentence or two on each page. Each page referred to a page of evidence – sentences from one of the recordings, quotes from grand jury testimony. Doyle wrote, "The strength of the document is its simplicity. An inexorable logic has traveled its pages. The conclusion that the President of the United States took part in a criminal conspiracy has become inevitable. "
The road map itself amply corroborates Doyle's description. It contains a little more than one page explanation of its content, a title page with a table of contents, then 53 pages – each containing a very short declaratory sentence or two statements of fact, then a list of the grand jury the claims. The 53 pieces of evidence are divided into four segments:
- Documents relating to a payment of $ 75,000 to E. Howard Hunt and related events;
- Material relating to the "investigation" of the president;
- Matter relating to events up to and including March 17, 1973; and
- The public statements of the president and the documents presented to the grand jury relate to them.
Some of the pages of evidence simply direct committee members to grand jury evidence. For example, the entry on page 11 reads in its entirety:
6. Around 12.30 pm On March 12, 1973, H.R. Haldeman had a telephone conversation with John Mitchell.
__________________________________________________________________________________________
6.1 Telephone diary of H.R. Haldeman for March 21, 1973, provided by the FBI attorney at the White House, February 13, 1974.
6.2 Testimony of H.Rald Haldeman before the Grand Jury, January 30, 1974, p. 4-16.
Item 4.1, Testimony of John Dean in the Grand Jury, February 14, 1974, p. 16
Other pages deal with public statements and their interactions with the evidence gathered by the grand jury, such as the evidence on page 52, which reads as follows:
44. On 22 May 1973, the President stated in a public statement that "[n]or did I know until the moment of my own investigation [March 21, 1973], of any effort to provide [the Watergate defendants] with funds. On August 15, 1973, the President stated in a public statement that he had been informed on March 21, 1973 that funds had been collected to pay the defendants legal fees and support from their family and not to "get the silence of the recipients. "
__________________________________________________________________________________________
44.1 Declaration of Accompanying the President, May 22, 1973.
44.2 Statement of the President, 22 May 1973, p. 6
44.3 Statement by the President, August 15, 1973, p. 2
44.4 Transcript of the President's Press Conference, August 22, 1973, 1973 Cong. Quarterly, August 25, 1973, p. 2334
Item 5.1, tape recording and transcript of a meeting held on the morning of March 21, 1973, Tr. 17, 18, 58, 61.
The shortage of descriptive wealth is inherent. Jaworski wrote in his memoir, "The Right and the Power," that the decision to send the report to the Judiciary Committee of the House was "unprecedented legal, but it seemed legally appropriate – if we prepared the information correctly ". against staff members who wanted to designate inculpatory evidence against Nixon as such, Jaworski decided that the best thing to do would be simply to specify "the facts of the camouflage story" as they appeared in the investigation. prosecutor and let the members draw their own conclusions. "
As Jaworski later wrote, in its final form, the roadmap included "no commentary, no interpretation, and not a word or phrase of an accusatory nature. The "road map" was just that: a series of guidelines if the Judiciary Committee of the House wanted to follow them. "
This brings us to the third striking feature of the document: it is almost entirely non-argumentative. In this respect, the Starr Report is not within the reach of all, as it sets out a long narrative and then includes a body of legal interpretations arguing that the reported facts could be grounds for impeachment. The roadmap is totally lacking in theory. It does not include any assumptions about what could constitute an attributable offense. He does not argue that Nixon committed an imprescriptible offense. In fact, he does not even say that he's committed a crime. It is simply a series of factual complaints, each written in a sober and clinical manner, each accompanied by quotes of material provided by the Special Prosecutor's Office in Congress.
The only grand jury argument, as it stands, is "that the above-mentioned evidence [should] be forwarded immediately to the Judiciary Committee of the House for the use he deems appropriate. How should the Judiciary Committee of the House use this material? The roadmap does not make any recommendation on this subject: "The Grand Jury is convinced that it should now go back to the House of Representatives and allow the House to determine what action could be justified in this regard. stage by this evidence. "
In fact, the report makes only one recommendation to Congress: "This evidence should be received, reviewed and used in a manner that avoids unnecessary interference with the Court's ability to conduct fair trials of those charged".
Are there any lessons in the roadmap for the Mueller inquiry? Without knowing exactly what type of Mueller report works and what are his plans, it is difficult to know for sure. But to the extent that Mueller works, or begins to work, on a communication in Congress, some lessons emerge.
First, less is really more. The document is powerful because it is so spared. because he's trying to inform, not persuading; because he's totally lacking rhetorical excess. Starr took a different path. The merits of his decision are complicated. The results are less so. Her approach worked less well, in part because she was looking to do more.
It also made him vulnerable to the accusation of being a rogue or overzealous prosecutor after President Clinton for political purposes. Doing less, rather than more, has helped isolate Mueller against similar charges. The insulation was not total, but it helped a lot. The roadmap is a good example of how not to fan the flames in a politicized environment that could wreak havoc on a prosecutor.
Secondly, the Roadmap is extremely careful not to do – or seems to do – the work of Congress for that. The power of impeachment is a function of the Congress in which no member of the executive power plays a role, if it is as the object of the dismissal. More ambitious reporting styles, in one way or another, have the effect of telling Congress what to do, whether or not it is an impenetrable crime, how it should interpret complex patterns of evidence. On the other hand, the roadmap simply gave the Congress the information to be used as it was appropriate for the members, and diligently avoided instructions or didactic messages on how to use them. This discipline as to the role of the report must have required a solid restraint. He has aged extremely well. This is the job of an officer, or group of officers, who asked important questions: What is my role and what does my role do 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 discharge this duty without interfering with their roles? Mueller may not be writing a referral for impeachment, but for someone in his position, these questions are always worth asking.
Finally, the roadmap gives an important lesson on contention. At the time of Donald Trump, one tends to think that an excess is necessary to fight against the excesses, that the appropriate reaction to the gross violations of norms implies the suppression of other norms. Yet, faced with Richard Nixon, Leon Jaworski wrote a meticulous 55-page document that does not contain a word of excesses. He passed it on to Congress, where he did not sink. It's powerful in part because it's so much by the book.
A bit like Bob Mueller.
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