Judge orders partial release of Watergate ‘road map’

A federal judge has ordered the partial release of a Watergate report that fueled an impeachment drive against President Richard Nixon and could serve as a precedent for a similar effort aimed at President Donald Trump.

Chief U.S. District Court Judge Beryl Howell granted a request Thursday to unseal a large chunk of the so-called road map that a federal grand jury in Washington sent to the House Judiciary Committee in early 1974.

The transmission to Congress more than four decades ago included a bare-bones summary of evidence from various witnesses, as well as supporting documents contained in a bulging olive-colored briefcase that prosecutors gave Judge John Sirica. The information detailed what the grand jury discovered about the Watergate break-in and Nixon’s involvement in subsequent efforts to cover it up.

Howell acted at the request of Geoffrey Shepard, a California lawyer who served as a member of Nixon’s defense during the legal showdown over Watergate. In 2011, when others moved to unseal Nixon’s grand jury testimony, Shepard asked that other information about the grand jury’s activities be made public.

Howell’s predecessor, Judge Royce Lamberth, rejected Shepard’s motion for the underlying transcripts of grand jury action, but said efforts should be made to release the “road map.”

In her order Thursday, Howell said the National Archives informed her that the “road map … consists of a two-page summary statement, followed by 53 individually numbered statements,” as well as 97 supporting documents.

Archivists said 81 of the documents had been made public elsewhere, chiefly in a House Judiciary Committee report. Howell’s order instructs the Archives to release those, but also to review the two-page summary and the 53-point list for disclosure.

The judge also went further, ordering officials to contact the individuals mentioned in the 16 remaining documents and determine whether they would object to disclosure. She told Justice Department lawyers to report back to her by Oct. 22 on their findings.

Howell’s order says the National Archives did not object to release of the already-public documents or to “corresponding portions of the report.”

Shepard described the judge’s order as a breakthrough, saying that the details she gave about the road map had never been officially confirmed before. He also welcomed the judge’s ruling to set in motion a process that could lead to disclosure of some or all of the records.

“We’re clearly making progress because the judge has asked for further efforts by the Department of Justice,” Shepard told POLITICO on Thursday.

What may have spurred action on Shepard’s seven-year-old petition is a similar request filed last month by three scholars urging the court to make the road map public. However, that request was narrower than Shepard’s and sought only the summaries and not the underlying materials.

Those making the new request — Stephen Bates, a University of Nevada journalism professor and former Whitewater investigation prosecutor; Jack Goldsmith, a Harvard law professor; and Lawfare editor Benjamin Wittes — said they were acting to spur discussion about the mechanism Watergate special prosecutor Leon Jaworski used and how it could be used by Mueller.

“The primary significance of the document … lies in its role as a kind of model or template for subsequent impeachment referrals, a model that, ironically, has never been available for study and emulation,” they wrote last month. “If Mueller decides to send a report to Congress, perhaps through [Deputy Attorney General Rod] Rosenstein, the Road Map would be a vital touchstone for the public and Congress to assess his actions.”

Earlier this week, Justice Department lawyers asked for two weeks more to respond to the new request for the road map, but Howell gave them only until Friday to file a response.

People familiar with the road-map transmission have said it also included audio recordings, although Howell made no mention of that in her public orders.

Shepard said he welcomed the moves towards transparency, although as a former Nixon lawyer he is intent on seeing what Jaworski’s team told the grand jury. He suspects that some of the claims were not accurate. It’s not clear whether transcripts of that part of the grand jury activity even exist.

“The central focus of my request is to know what prosecutors told the grand jury to convince them to adopt the road map as their own and to name Richard Nixon as a co-conspirator in the Watergate cover-up,” Shepard said.

The dispute over the Watergate-era records and the discussion about their relevance to the Mueller investigation come as a federal appeals court in Washington is considering a broader question about whether judges have the authority to release historical grand jury materials. The Justice Department has argued they do not, but Lamberth, Howell and other courts across the country have ruled that judges have that power.

A three-judge panel of the D.C. Circuit Court of Appeals heard vigorous arguments on that issue last month. No decision has yet been issued.

A ruling for the government in that case could limit Mueller’s ability to send Congress a report about Trump’s actions, but it’s possible a formal request from a congressional committee could overcome that hurdle. Such a request is unlikely at the moment, but if Democrats take control of the House in the upcoming midterm elections, a request for Mueller’s grand jury evidence could be forthcoming.

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