Legal Experts Urge Release of Watergate Report to Offer Mueller a Road Map

WASHINGTON — A question has loomed over Washington: What will special counsel Robert Mueller do when he wraps up his investigation into whether the Trump campaign conspired with Russia and whether President Donald Trump obstructed justice?

The leading theory is that Mueller will write a report for his supervisor at the Justice Department. That could lead to a new fight: Trump’s lawyer, Rudy Giuliani, has suggested that the White House may then invoke executive privilege and order the Justice Department to keep portions of such a report confidential from Congress.

But there is historical precedent for another model. Echoing a move by the Watergate prosecutor in March 1974, the grand jury with which Mueller has been working could try to send a report about the evidence it has gathered directly to the House Judiciary Committee. And Friday, seeking to draw more attention to that option, three prominent legal analysts asked a court to lift a veil of secrecy that has long kept that Watergate-era report hidden.

Specifically, the petition asks a judge to unseal a report that Leon Jaworski, the Watergate prosecutor, used to send Congress the evidence he had gathered about President Richard M. Nixon’s misconduct. Known as the “Road Map,” it was a 55-page index describing evidence and citing underlying testimony and tapes, but without any legal analysis or recommendations about whether Nixon committed an impeachable offense. While the Judiciary Committee had access to the Road Map, it has remained sealed from public view.

“This petition presents an extraordinarily compelling interest in disclosure arrayed against a vanishingly small countervailing interest,” the court filing said, noting that the Watergate players are mostly dead and that much of the evidence is already public. It added: “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 petition was filed by Benjamin Wittes, a Brookings Institution senior fellow and the editor-in-chief of Lawfare, an online publication that specializes in national security legal policy issues; Jack Goldsmith, a Harvard Law School professor and senior Justice Department official in the George W. Bush administration; and Stephen Bates, a University of Nevada, Las Vegas, law professor who, as a federal prosecutor working for Ken Starr, the independent counsel who investigated President Bill Clinton, co-wrote the report to Congress recommending that Clinton be impeached. The three are represented by Protect Democracy, a government watchdog group.

It is uncertain how a Road Map-style grand jury report would play out in the Trump-Russia case. Justice Department rules permit Mueller’s supervisor to veto any unwarranted “investigative or prosecutorial step,” but it is not clear whether asking a grand jury to send a report to Congress qualifies as such. Mueller’s supervisor is Rod J. Rosenstein, the deputy attorney general, but that could change if Trump fires him or Jeff Sessions, the attorney general, who is recused from the Russia investigation, leaving Rosenstein as the acting attorney general for that matter.

The option of a grand jury report could also have implications if Trump were to force the Justice Department to shut down Mueller’s investigation. It is not clear what would happen if the grand jury members, on their own initiative, were to ask the judge presiding over their panel to transmit to Congress all the evidence they had gathered — without the executive branch’s request or approval.

Unlike Jaworski in 1974 and Mueller today, Starr was operating under a law — enacted after Watergate, and since lapsed — that clearly gave him the authority to send a report directly to Congress.

In his 1976 memoir, “The Right and the Power: The Prosecution of Watergate," Jaworski, who died in 1982, portrayed the Road Map as his “master plan.” He called it an unprecedented but legally proper solution to a difficult problem: harnessing a grand jury’s power to issue a report as a way to get around his apparent lack of power to send information to Congress directly. A federal judge overseeing the grand jury and a federal appeals court approved the move.

In a declaration accompanying the petition filed Friday, Bates said that when he was working for Starr more than two decades later, he asked the National Archives for a copy of the Road Map report to study as a model, but was told that it was still secret. He said he had recently tried again to obtain it under the Freedom of Information Act, but was rebuffed for the same reason.

The Starr report — which Bates wrote with Brett M. Kavanaugh, whom Trump has nominated to the Supreme Court — contained extensive legal analysis and explicitly concluded that Clinton should be impeached, along with lurid detail about Clinton’s affair with Monica Lewinsky. The Watergate Road Map report is said to have been far more terse and understated.

“The final product contained the information we sought to transmit, with references to particular tapes and testimony of particular witnesses, and that’s all," Jaworski wrote. “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.”

In another declaration, Goldsmith noted the incongruity that the Watergate-era document has a better historical reputation than the Starr report and yet is unavailable for public scrutiny. He argued that making it public would help inform discussion of any effort by Mueller to send information to Congress, a task that could require navigating “difficult and sensitive issues of executive power, separation of powers and individual rights.”

The petition was also accompanied by three declarations from Watergate-era figures who argued that it was time to make the Road Map public: two Watergate prosecutors, Richard Ben-Veniste and Philip A. Lacovara, and John Dean, the White House counsel for Nixon.