WASHINGTON (CN) – Three legal scholars urged a federal judge Friday to unseal the Watergate “Road Map,” a secret report sent to Congress in 1974 containing evidence about President Richard Nixon’s misconduct.
Filed in Washington by Lawfare editor in chief Benjamin Wittes, Harvard Law School professor Jack Goldsmith and University of Nevada law professor Stephan Bates, the petition comes as debate mounts about how and when special counsel Robert Mueller will end his investigation of Russian election meddling.
Unlike the law governing the investigation of President Bill Clinton, which required independent counsel Kenneth Starr to report grounds for impeachment to the House, Mueller’s path forward is less clear.
Mueller could write a report for his supervisor, Deputy Attorney General Rod Rosenstein, but there is no guarantee that such a report would reach Congress.
President Donald Trump’s lawyer, Rudy Giuliani, has also suggested that the White House could assert executive privilege over portions of any eventual report Mueller produces.
For Wittes, Bates and Goldsmith, the options available to Mueller are more analogous to those faced by Watergate special prosecutor Leon Jaworski. They say the 55-page document known as the Road Map could offer Mueller a path to follow as his investigation presses forward.
“In the silence left by Congress, Special Counsel Mueller’s Office, like the Watergate Special Prosecutor’s Office, must navigate difficult questions of separation of powers, individual rights, and executive power, in deciding what type of report, if any, to provide Congress,” the 92-page petition says.
While the Road Map is said to contain grand jury testimony and tape recordings, its utility for the Mueller probe is uncertain because it remains under seal at the National Archives and Records Administration.
Wittes, Bates and Goldsmith credit the report’s transmission to the House Judiciary Committee as a turning point in the Watergate investigation, saying it culminated with the committee adopting articles of impeachment against Nixon, though he resigned before the committee could vote.
The Road Map could also fill in details of how the committee decided to draft those articles.
“Precisely what information the House drew upon at that critical turning point in Watergate history remains unknown,” the petition says.
Wittes, Bates and Goldsmith say the Rod Map would not only fill in that piece of the Watergate story, but it would also shed light on “a current debate of extraordinary national importance.”
The Road Map offered no recommendation about the appropriate course of action concerning President Nixon’s involvement in the Watergate scandal, nor did it charge Nixon with crimes.
Reluctant to indict a sitting president, Jaworski eventually settled on advising the grand jury that it could charge Nixon’s aides with obstruction of justice and name the president as an unindicted co-conspirator.
At the same time, Jaworski sought permission from the federal court in Washington, D.C., to send the prosecution team’s conclusions to the House Judiciary Committee. Chief U.S. District Judge John Sirica agreed that the report should be disclosed to the committee, and the D.C. Circuit upheld his decision.
Though the rule governing grand jury secrecy isn’t clear about whether the court can disclose grand jury records in other circumstances, Wittes, Bates and Goldsmith say the D.C. Circuit’s affirmation of Sirica’s decision set a precedent that allows the court to use discretion beyond the rule’s confines.
Noting its relevance to special counsel Robert Mueller’s investigation, the trio say the interest in disclosure outweighs the need for secrecy, and that the court should exercise its discretion to disclose the Road Map.
“Not only does the Road Map carry immense historical significance in understanding the Watergate investigation, it provides a key precedent for assessing the appropriate framework for Special Counsel Mueller to report to Congress any findings of potentially unlawful conduct by President Trump,” the 92-page filing says.
The filing notes that the Road Map was the product of “intensive discussions” about how to hold Nixon accountable for crimes uncovered during the investigation, while the question of whether a sitting president can be indicted had no clear answer.
“The Special Prosecutor’s Office faced an unprecedented question of how to transmit evidence of the President’s unlawful conduct to House of Representatives, a separate branch of government with the authority to impeach but insufficient evidence to move forward with its investigation,” the filing says.
Unsealing the Road Map, the trio claim, would help inform Mueller’s contemplation of how to send information to Congress.