IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE: PETITION OF BENJAMIN WITTES, JACK GOLDSMITH & STEPHEN BATES ) ) ) ) ) Misc. Case No. ____________ DECLARATION OF PHILIP ALLEN LACOVARA l. DECLARATION OF. PHILIPALLEN LACOYARA LIPhilip A'llenLaoovara, herein};r declare'es follows: 1 basic been asked to provide this: Declaration'in support ?Of'a petition te unseal and release the so-?called ?Road Map? erepare'd by the Watergate Special Preschtoris Office. discuss Delete the Road Map and In}i rOle'in' its preparation and its. submission Ito?the Judiciary Committee of the House: of Representatives. As dismasedinore fully I served as the Counsel tethe- Watergate Special Prosecutor at the. time. PERSONAL AND PROFESSIONAL BACKGROUND POI-more'than ?fty years-3 I have Work-ed as a lawyer in _.government. service, private practice international 'cOr'pOrations: and academic. institutiens. Since 1-967-1have befill a Member of the New York Bar, and since 1974 I have been amember of 'theBar efthe United States. District Court for the. Distri ct Ol?Cclumbia (among other federal courts, including the-Supreme Court of the United States [1970]). 'My-memb'ership in the-?Bar of the DistriCt. of Columbia derives from my 1974 adrhissiOn to. the Bar "Of-the District Court, Sines 2003, I also have been an enrolled. Solicitor entitled .to yractice law in England. received my undergradUate degree from ,GeOrgetown University in 1.963. Aiier-g?radirating from Columbia LawSchOOl in 196.6, I became the senior law-clerk to United States Circuit lodge Harold. Leventhal of the United States Court'oprpeals' for the District: of Columbia Circui-t. Over the 'folloWin?g decades liserved On- or chaired veri?es committees. of that court.- Apart from my service in the Watergate Special .Pr'osecutcr?s Of?ce, some of my other roles in public service have included: Special Assistant to theneS'elieitor General Thurgood Marshall (1967?), Assistant to Solicitor General Erwin Griswold Special C'otlnsel' to the- York City Pciice?Commi'ssioner (NY PD) Deputy solicitor General of'the a, 10. United States supervising all Federal criminal and. national security cases in the Supreme Court (-1 932-1 9TB), chairman of the Beard ?of Trustees of the Public Defender Service of theDistrict. of Columbia, and the 'designee of President Ronald Reagan (in the Judicial Nomination Commissionfor the Di strict of Columbia, As an Assistant to the Solicitor General and-then later as Deputy- Solicitor General,-I. regularly presented to the; supreme Court the position of the j'Executive Branch on isSues of law enforcement,.national security, and separation of powers, I have argued more than ?fteen cases before the Supreme Court. i have been actively involved with- The District oiiColimibia' Bar-for. decades. At varicostimes I have served. on the Bar?s Legal Ethics Committee (cliaiiperSon of Subcommittee on Code of' ProfeSSional conduct), as a member ofth'e Board ofGovemcirs of the Bar, as: general counsel to theBar, and in' 1988-1989315. President ofThe District of Columbia Bar. Untii 201 I chaired 'the'Bar?s Leadership DevelopmentCommittee. Iii-private practice, have been. a partner in the Washington and New York offices of two international law ?rms, Hughes Hubbard. LLP (Where 1' was thelmana'gin?g p'arm'eir'of the 'Wa?shington office) .and MayerBrown: LLP. In the corporate world, I worked as VicefPresider-ltend Senior Counsel for Legal Policy-"at General. Electric. Co. and then "as Managing Director, General Counsel, and member of the Management Committee of Morgan Stanley 85 Co. have taught. Vari'ou s' oeurses- on cens'titu'tional law, p'resi'd entialpo?wer, and'federal juristlietion and procedure. at the university level. For example, I held positions as Adjunct Professor, Department of Poiitical' Science, .I?Iunt'er College elf-the Cit-3pr University of New York (teaching 1various courses on presidential international law of armed con?ict, 11. 1.2. 13. Adjunct Professor at Georgetown. University Law Center (federal courts and. the federal. system), Adjunct Lecturer .Coliumbia Law School (issues in modern lecturer at- .Tohn Jay College, City University o'f'New York (civil liberties under the Constitution). 1 also have delivered formal lectures at Yale Law school?(the AnderSon? Lecture), =Colun1bi'a- Law School (the l-rl'arold Leventhal Memorial Lecture), United States Military Academy (west other universities. I have written frequently on issues of presidential power, control of terrorism, and the international, later .of armed con?ict, and-other similar subjects. I havel'published articles on. various topicsof'publie law in Columbia Law- Review, Yale-Law Journal, Harvard Journal of International Law, Arizona Law Review, Delaware Law Review, Minnesota Law Review. IntersAmerECaa Law Re'vie'ia, Sr. Law'Reiniew, Law Problems, New York Times, Washington PoshlosA ngefes Times, NatfoaaI'Lm-v Journal, and others. II am a Life Member ofithe American Law- Insti't'ute (ALI). l'Worked with i?rofessor Herbert 'Wechsler-on. the drafting of the ALI Model. Penal Code, "which has been adopted-as the basis for the criminal law ?of most States, I also have. been involved in various other ALI projects dealing With criminal law and, procedure. OFFICE In .1973 and 1974, lserved- as Counsel .to the. Special Prosecutor inthe Watergate Special Prosecuto?s Of?ce {officiallyr termied the ?Watergate Special Prosecution Force? in Department of Justice regulations). A's; counsel to the Special Prosecutor, I was the principal legal adviser. to Special. Prosecutor Archibald Cox- and his successor, Leon_Jaworski.. This included evaluation'of'all constitutional-arid other legal issuesthatarosez in the course of the investigation of the Watergate Cover-Up, including Presiid'ent Nixon?s role in. the cover-up, .14. is. 6-. and, in the course of the other matters that had been to the: Special Prosecutor, Together with my staff, I. also functioned as" the general counsel for. the Office, advising on, issues of federal oriminalilaw and-procedure. We were responsible for briefing and, in many cases,- arguingmoti'ons and appeals relating to the work of the Of?ce. instha't capacity, I argued amongo'ther cases Uiti'red States 12. Miami-,- 418 US. 683 (1974) (the ?Nixon i?hpes Crisis?), before the. Supreme Court, Age-discussed below, i also-was responsible for advising on the-propriety of developing the ?Road Map? and fer arguing in. court that the information that it contained could pimped},r be: released to the House Judiciary Committee. THE ROAD MAP The Read- Map is a'docUm'eut that, as- host] recall, consists of a narrative of the facts- that'the Special Prosecutor?s Of?ce had unhovered relating tothe complicity of President'Nixon in the Watergate Coven-Up and in other Violations of'law. that were within the jurisdiction of the- Of?ceftolinvesti gate (including the abuses by the White House various campaign- Violati'ons, etc). The. Road Map was drafted by the staff oi?the Office-and stunmal'ized tentative ?ndings. It was based on a variety o'l"'seurces" of information, including decuin'entary evidence 'and'iintervi'ewS obtained eutside' the greed juryr process'as well as information presented to the grand jury. It. is my recollection that thei'Road Map, also ineluded. evidential-?3' exhibits, some (but not all),of which-wouldlbe characterized as grand jury materials or as referring to matters occurring before the grand-jury. It may be pertinent to understand'the origin of the Road Map. President Nixon was a focus, of the Special Prosecutor?s investigation,-although not?the-omy focus. Even before the Supreme. decision in the NEWETHPES Case forced the President to. release. the ?Smoking gun?? tape, which precipitated his resignation, there was substantial evidence that the 177. 1:8. President .had violated various, criminal. statutes. At the time (and. to this day), there was no authoritative judicial. ruling on the critical question whether .an-incumbent- president may be indicted while in office.- Based'on extensive research an'd'anal-ys'is by mystaff'an?dby me, we. Concluded that a president has "no special 'imr'nun'ity' i??om indictment while in of?ce. Netrertheless, .it was certain that indicting the President would Complicate the proceedings. against the other subjects of the i-nvestigati'oH and delay prosecution of charges against them. At the time, we were aware that the House JudiCiary- Committee: which has jurisdiction over- possible impeachments, Was. conducting- an inquiry into whether. President Nixon had Committed ?high crimes and misdemeanors.? and thus was liable "to. impeachment. Accordingly, the Special ProseCuto'r' concluded that (as we later informed the Supreme Court during thefbrie?ng of the Nikon- Tapes could identify President Nixon as annatnd?eted coaconspirator in the indictment charginghis aides with-criminal culpability; but the salient information about the President-?s own cenduct would be transmitted, in an organized form, .to the Heuse Judiciary Committee, if that Could hedone lawfully. concluded that this- course was permissible. under Rule ?fe) of the Federal Rules of Criminal. Procedure. The watergate Task cree. team. then prepared the Road Map. It was understood that it would be prudent to seek. judicial approval for this course. befOre. actually releasing. the Road Map to? the H'ou'Se Judiciary Committee. Accordingly: from Chief Judge John J. Sir-icai. who was Supervising-all grand jury mattersat the time. I preScn'ted the arguments supporting release of the materiall which both ChiefJudge Sir-tea and the an bane DIC. Circuit. approved (one judge dissenting). See..In re Report d2 Recommendation of?June 1.9 72 Grand Jury Concerning Transmission-of Evidence to Home ofR-epresentatives, 37.0.14?. Supp. 1219 (D.D.C. 19-74), a??d 'snb nom. Holdemon Sitters, 501 19-. 20, F.2d 714 (D..C. Cir. 1974.). The Road Map was. then transmitted. to the House Judiciary Committee- I understand that-Honse- members and staff-115w the Road Map in determining whether to prepare-Articles of Impeachment, which the Committee eventually did. RELEVANCE OF THE ROAD MAP T0 CURRENT PUBLIC. CONCERN I was s'urpri'Sed to l'earnthat that the Road Map was not. released years-ago. It was thersubject of .a highly publicized-judicial litigation more. than forty?four years ago. The Road Map-"was part of congressional proceedings leading to the approval of Articles of Impeachincnt adopted by the House Judiciary "Conunittee. It was Nwr-idelj,r discussed. in the published memoirs of various participants in-the. Watergate investigation. 'Many. historians and scholars have extensively examined the Watergate affair;- including? the Cover-Up and the ensuing investigations by the-Special Prosecutor?s Of?ce. and tth'ouse-Judiciary Committee. Indeed, Some ?retrisitmist? authors (as. I would term them). have sought to. "argue that the of. President the use of the grandljurylwas abusive and unfair. in my View, a full Vetting of this crucial period of American history would beweli served by thorough public access. to all. of the material's generated by the Special Prosecutoris O'tiice, including-the Road Map. 'Inthis spirit, years ago I submitted- to the-Natirinal Aris'hi'ites,4 without restriction, all my Watergate-related tiles, including con?dential internal memoran'da and personal diaries and calendars. I. know that historians (and critics) have drawn on these materials in. evaluating the --ent?ire Watergate affair; 'In addition. an. accurate and complete. understanding of the Road Map may contribute. "."substantially to an informed discussion. of matters of V'italh'contemporar-y imponanca. Speci?cally, disclosure of the ReadMap is likely to contribute to a public understanding- of the options available to Special Counsel Robert Mueller in his current investigation of conduct during the 2016 presidential campaign. 22. have written several articles about Special Counsel Robert Mueller?s investigation and the issues that arise out of it. For example, my ?op-eds? in the Washington Post have addressed issues of the presidential pardon power, possible obstruction of justice by the President, the President?s resistance to providing testimony to the Special Counsel and the grand jury, and the alleged immunity of an incumbent president from indictment while in office.] I have also been interviewed and quoted on these topics by multiple news outlets, including Politico} CNN, CNBC, BBC, etc., where I have discussed the limits of executive power. 1 See, Philip Allen Lacovara, I Miss Richard Nixon, Opinion, Wash. Post, Aug. 20, 2013, available at lung: grip.v.twillItQHtipnMx'th opinions riixuli 3.1"th HS allotlh?Lg-u-lu-l? it-N?IVTr-b- .Hc lithirlnt'tL-F; Philip Allen Lacovara, Don ?t Waitfor Tramp to Testi?, Mr. Mueller, Opinion, Wash. Post, June 17, 2018, available at imp: in L?Hl?l': opinions mocilor IHIX Hr: I7 ICE?aidi- slot-513% 111% 1 ii; Philip Allen Lacovara, Even Tramp Deserves a Good Lawyer, Opinion, Wash. Post, Mar. 28, 2018, available at Ci wet-Lanni- l.m?.ur fill}; ?1 :3 all? inkeMi?tnt; letm .L?lW-ltiHTHF-lth?; Philip Allen Lacovara, How the Pardon Power Could End Trump ?s Presidency, Opinion, Wash. Post, Aug. 29, 2017. available at littpn: km opinions ?ll?.7 Jul-34c!!? Flam} .bvlr- trivlt?fk'f Philip Allen Lacovara, Helped Prosecnte Watergate. Comey ?s Statement 1's Sn?ieient Evidence for an Obstruction ofJastice Case., Opinion, Wash. Post, June 7, 201?, available at izitpsz int opinion;liyt?incr- delegati- pmmegabit-conto; it; awn?:? .httn 2 Can the Sitting President ofthe United_ States Be Indicted? NPR, Aug._2, 2018 available l?liipx: .113 indict-ed. 3 Darren Samuelsohn, Russia Probe Lawyers Think Mueller oald lndiet Tramp, Politico, Feb. 2, 2013, available at article 2 lL?IE-gu -7- 23. Recently I was quoted extensively in the New York Times discussing how the Road Map relates to current investigations into possible presidential wrongdoing.4 24. The Road Map is highly relevant to the public?s understanding of the historical and legal frameworks that provide the backdrop for the Mueller investigation. Therefore, its continued secrecy deprives the public of information regarding a vital historical precedent. As the former Counsel to the Watergate Special Prosecutor, I believe that unsealing and releasing the Road Map would signi?cantly enrich the public?s understanding of a mechanism that a similarly situated investigator used to ensure that facts developed during a thorough criminal investigation were also available to another governmental institution with its own independent but related constitutional responsibilities. 25. I am familiar with the restrictions contained in Rule 6(e) and the policies underlying those restrictions. The primary goals of the restrictions, as I have understood them, are to protect the secrecy and integrity of pending criminal investigations, to protect witnesses against possible intimidation and reprisal, and to preserve the privacy of witnesses and persons investigated but not indicted. 26. Unsealing and releasing the Road Map (with or without the underlying evidence, including any grand jury testimony) would not con?ict with any of those goals. The Watergate investigations were completed four decades ago. The identity of all witnesses was disclosed, one way or another, many years ago. I assume that the actual grand jury testimony of many of the witnesses who also testi?ed at subsequent trials was provided to defense counsel. Most of the witnesses already have died; I think that this observation also may apply to the subjects of 4 Adam Liptak and Jim Rutenberg, Cohen Implicotes President Trump. Who! Do Prosecutors Do Now?, NY. Times, Aug. 21, 2018, available or . . . .3 L1.- . . . -3- 27. the grand jury proceedings. Moreover, as I have noted previously, the Road Map has been described extensively in various public proceedings and memoirs. Therefore, I am quite comfortable in concluding that retainng the Road Map under seal would not protect any of the interests underlying the general presumption of grand jury secrecy. By contrast, unsealing and releasing the Road Map would promote important public interests. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on August 29, 2018, in Baltimore, Maryland. Philip Allen Lacovara