Highly secretive documents finally released Wednesday, including a draft of a would-be criminal indictment against former President Richard Nixon, could provide guidance for Special Counsel Robert Mueller’s investigation into President Trump, according to the group of legal analysts that sued to unearth the materials.
Stephen Bates, who worked for independent counsel Ken Starr, and legal bloggers Jack Goldsmith and Benjamin Wittes won their battle to force the National Archives to unseal the so-called “Watergate Roadmap” and its related documents last month in the U.S. District Court for the District of Columbia, as they argued that the materials had significant political implications today that overrode any government interest in keeping them secret.
“As Mueller reportedly contemplates writing a ‘report’ on possible presidential obstruction of justice, there are two models available to him to the extent that he is contemplating an impeachment referral of some kind,” the three analysts wrote on their blog Lawfare in September. “One of those, the Starr Report [that led to the impeachment of former President Bill Clinton], is well-understood and regarded by many commentators in a negative light. The other, the Road Map, remains secret more than 40 years after its transmission to Congress. Few people have even heard of it.”
The salacious Starr report, released in September 1998, became a political football and wrecking ball upon its release, with critics charging that it was an overtly political document. The beginning of the report contained something of a disclaimer, noting that “many of the details” contained inside “reveal highly personal information; many are sexually explicit. This is unfortunate, but it is essential.”
“The document is … keenly relevant to current discussions of how Mueller should proceed.”
The legal analysts argued that the Watergate Road Map could offer insight into the ongoing legal debate as to whether a president constitutionally could be charged with obstruction of justice at all, as well as whether it would be appropriate within the special counsel statutes for Mueller to issue a public or confidential report on his findings — should he issue a report at all.
It remains unclear which course Mueller may take once he concludes his investigation into Russian meddling in the 2016 presidential election and related issues. The Watergate Road Map, now released in its entirety, could counsel his team to reveal its findings confidentially to Congress.
“The document is… keenly relevant to current discussions of how Mueller should proceed,” Bates, Goldsmith, and Wittes added. “It is possible that it is even relevant to discussions taking place within the Mueller investigation itself.”
The records in the Watergate Road Map initially were provided to Congress under seal 45 years ago, on the order of federal appellate Judge John Sirica, after special prosecutor Leon Jaworski argued he theoretically had enough evidence for criminal charges again Nixon, even though the Constitution seemingly did not permit a sitting president to face a criminal indictment.
Interestingly, unlike the Starr report, which was written from the prosecutor’s perspective, the Watergate Road Map released Wednesday is not written in Jaworski’s voice. Instead, it is a court document, like the indictment.
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Sirica authorized the documents’ confidential release to Congress in March 1974, after Congress already had initiated impeachment proceedings. Nixon ultimately resigned on Aug. 8, 1974, facing almost-certain impeachment and removal.
The draft indictment against Nixon contained charges of bribery, conspiracy, obstruction of justice and obstruction of a criminal probe — and seven Nixon aides who were charged later were similarly hit with obstruction counts.
The indictment, which included in the top-right corner a handwritten notation that it was a “draft,” read: “[F]rom on or about March 21, 1973…Richard M. Nixon unlawfully, willfully and knowingly did combine, conspire, confederate and agree together and with co-conspirators… to commit bribery… obstruct justice… and obstruct a criminal investigation.”
However, prominent legal analysts, including Harvard professor emeritus Alan Dershowitz, as well as the Justice Department’s Office of Legal Counsel, have long argued that a sitting president cannot be indicted — even if he commits a crime.
“The grand jury was able to discern that Nixon himself was a criminal, and the only reason that they did not indict him is because there was a question of whether or not a sitting president could be indicted,” University of Virginia Miller Center historian Ken Hughes said in an interview.
Speaking to Fox News’ “The Ingraham Angle” exclusively on Monday, President Trump voiced his continued frustration with Mueller’s probe, which he has long called a partisan “witch hunt” led by Democratic lawyers upset that he had won the 2016 presidential election. However, he also indicated that he might offer some cooperation as the investigation appears to wind down.
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“It’s ridiculous that I have to do anything, because I didn’t do anything, but yes, we will probably do something, yes we will respond to questions,” Trump told host Laura Ingraham.