The secret Watergate Grand Jury Indictments
by digby
Some long-sought documents on Watergate have just been released. How very interesting they are:
U.S. archivists on Wednesday revealed one of the last great secrets of the Watergate investigation — the backbone of a long-sealed report used by prosecutor Leon Jaworski to send Congress the evidence in the legal case against President Richard M. Nixon.
The release of the referral — delivered in 1974 as impeachment proceedings were being weighed — came after a former member of Nixon’s defense team and three prominent legal analysts filed separate lawsuits seeking its unsealing after more than four decades under grand jury secrecy rules. The legal analysts argued the report could offer a precedent and guide for special counsel Robert S. Mueller III as his office addresses its present-day challenge on whether, and if so, how to make public findings from its investigation into Russia’s interference in the 2016 election, including any that directly involve President Trump.
The legal specialists said they and Watergate veterans sought to have the Jaworski report made public because of the historical parallels they see to the current probe and the report’s potential to serve as a counterexample to the independent counsel Ken Starr’s report before President Bill Clinton’s impeachment.
The 453-page Starr report, written in 1998, deepened partisan divisions when its graphic detail and legal conclusions about Clinton’s affair with Monica Lewinsky were immediately made public by House Republicans, who suffered an electoral backlash.
By contrast, the reputation of Jaworski’s report has fared far better, even as its bare-bones form remained a mystery. The Jaworski report is known colloquially known as the “Sirica road map,” for then-Chief U.S. District Judge John J. Sirica, who approved its creation and transmission to lawmakers.
“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,” the late Jaworski wrote in his 1976 memoir, “The Right and the Power: The Prosecution of Watergate.”
[…]
The road map consists of a two-page summary, followed by 53 numbered statements, supported by 97 documents including interviews and tapes, according to information that the National Archives turned over to Howell.While much of the report’s substance — including evidence of the Nixon campaign’s funding of the break-in at Democratic National Committee headquarters and the president’s role in the subsequent coverup — has long been public, its structure and potential to serve as a template for others remained under seal…
“It is one of the only precedents of a report that has had to go through that kind of process [under grand jury secrecy rules] to get to the House for consideration as grounds for impeachment,” Bates said in an interview. “If Mueller could say, ‘We have structured this report the way Leon Jaworski did in 1974, and Judge Sirica approved it,’ that might be persuasive in this case.”
[…]
Other veterans of past White House investigations differed on the road map’s lessons.Paul Rosenzweig, who served on Starr’s team, said the document is important for historians, but that Justice Department regulations issued since then provide for Mueller to report to his supervisor, currently Deputy Attorney General Rod J. Rosenstein.
Nick Akerman, who served as an assistant prosecutor on Jaworski’s team, said however it could provide a model for Mueller, particularly should his team decide the president engaged in wrongdoing but that department regulations do not allow them to seek an indictment or make a case for impeachment.
“It’s absolutely an approach he could take — simply giving them the facts, without coming to a conclusion,” Akerman said.
This piece at Lawfare goes into detail about what’s in the documents and it’s fascinating. It draws very clear differences between Jaworski’s report and that bodice-ripping romance novel they called the Starr Report. They are different as night and day … They conclude:
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.
Kind of like Bob Mueller.
Ken Starr’s operation was a full-blown partisan hit team. And it showed. Mueller won’t make that mistake.
They’ll say he was anyway but maybe it won’t matter if his case is this buttoned up.
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