The Watergate Road Map

Ken AshfordCourts/Law, Crime, History, L'Affaire Russe, Trump & AdministrationLeave a Comment

The Jaworski “Road Map,” the last great still-secret Watergate documentbecame public Wednesday when the National Archives released it under Judge Howell’s ruling from earlier this month. It sees the light of day for the first time in four and a half decades at a remarkable moment, one in which a different special prosecutor is considering the conduct of a different president and reportedly contemplating—as Watergate Special Prosecutor Leon Jaworski once did—writing a report on the subject.

The Jaworski Road Map was essentially a referral by the grand jury, to Congress, in the Watergate scandal.  It was delivered in 1974 as impeachment proceedings were being weighed. It dodged the legally thorny question of whether or not a sitting President could be indicted.  Essentially, the grand jury presented its findings the House Judiciary Committee and left it for that committee to decide what to do. 

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

But what of the document itself?  Because grand jury work product is kept secret forever, we know little. “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.”  But beyond that, the document has been shrouded in mystery. James Doyle, Jaworski’s press secretary, described it in his book on the Watergate investigation as “a simple document, fifty-five pages long, with only a sentence or two on each of the pages. Each page was a reference to a page of evidence—sentences from one of the tape recordings, quotations from grand jury testimony.” Doyle wrote that, “The strength of the document was its simplicity. An inexorable logic marched through its pages. The conclusion that the President of the United States took part in a criminal conspiracy became inescapable.”

But now it has been unsealed.  The Road Map actually consists of a two-page summary, a set of 53 numbered statements of fact, and 97 supporting documents corresponding to each statement of fact.

The 53 points of evidence are divided into four segments:

  1. Material bearing on a $75,000 payment to E. Howard Hunt and related events;
  2. Material bearing on the president’s “investigation”;
  3. Material bearing on events up to and including March 17, 1973; and
  4. The president’s public statements and material before the grand jury related thereto.

Here is the Statement of Facts, the heart of the Road Map.

The document is crafted not as a prosecutor’s report on his findings but as an action by the same citizens who handed up an indictment against the Watergate conspirators. It is even, in its very first sentence, crafted as something akin to an extension of that indictment. 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.”

And as Jaworski and Doyle later wrote, it is indeed very simple. 

The grand jury’s only thesis, such as it is, was “that the evidence referred to above [should] be transmitted forthwith to the House Judiciary Committee for such use as it considers appropriate.” How should the House Judiciary Committee use this material? The Road Map makes no recommendation on this score: “It is the belief of the Grand Jury that it should presently defer to the House of Representatives and allow the House to determine what action may be warranted at this time by this evidence.”

Indeed, the report makes only one recommendation to Congress: “this evidence should be received, considered, and utilized with due regard for avoiding any unnecessary interference with the ability of the Court to conduct fair trials of persons under criminal indictment.”

Are there lessons in the Road Map for the Mueller investigation? Without knowing precisely what sort of report Mueller is working on and what his plans are, it’s hard to know for sure. But to the extent that Mueller is working, or comes to be working, on a communication to Congress, a few lessons stand out.

First, less really is more. The document is powerful because it is so spare; because it is trying to inform, not to persuade; because it utterly lacks rhetorical excess. Starr took a different path. The merits of his decision are complicated. The results are less so. His approach worked less well, partly because it sought to do more.

That also made him vulnerable to the charge of being a rogue or overzealous prosecutor after President Clinton for political purposes. Doing less, rather than more, has helped insulate Mueller against similar charges. The insulation has not been total, but it has helped a lot. The Road Map is a fine example of how not to fan flames, in a politicized environment, that are apt to blow back on a prosecutor.

Second and relatedly, the Road Map is extremely careful not to do—or seem to do—Congress’s job for it. The power to impeach is a congressional function in which no executive-branch official plays a role—except as the object of the impeachment. More ambitious reporting styles, one way or another, have the effect of instructing Congress what it should do, what does and does not constitute an impeachable offense, how it should read complex patterns of evidence. By contrast, the Road Map simply gave Congress information to use as members saw fit and assiduously avoided instruction or didactic messaging as to how to put that information to use. This discipline as to the report’s role must have required steely restraint. It has aged extremely well. It is the work of an officer, or group of officers, who asked important questions: What is my role, and what does my role 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 fulfill that duty without interfering in their roles? Mueller may not be writing an impeachment referral, but for someone in his position, these questions are always worth asking.

Finally, the Road Map teaches an important lesson about restraint. There is a tendency in the age of Donald Trump to assume that excess is needed to combat excess, that the proper response to gross norm violations involve the scrapping of other norms. Yet faced with Richard Nixon, Leon Jaworski wrote a meticulous 55-page document that contains not a word of excess. He transmitted it to Congress, where it did not leak. It is powerful partly because it is so by-the-book.  Mueller is that way, too.