EN RE: PETITION OF BENJAMIN WITTES, JACK GOLDSMITH ?5 STEPHEN BATES IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Misc. Case No. DECLARATION OF BENJAMIN WITTES 1., Benjamin Wittesl hereby declare as follows: 1. Lu i am editor-in-chief of Lorraine and a Senior Fellow in Governance Studies at the Brookings Institution. 1 write about issues reiated to American law and national security. I submit this declaration to support the above-captioned petition to unseal material relating to President Richard Nixon that Watergate Special Prosecutor Leon Jaworski transmitted to the House Judiciary Committee with authorization from the federal district court for the District of Columbia in 1974 (the ?Road Map?). I am a Senior Fellow in Governance Studies at the Brookings Institution, where i serve as the Research Director in Public Law. I am co-founder and editor?in?chief of Lanj?tre, a website devoted to the discussion of US. national security law and policy?. See 10. 11. have more than 20 years of experience studying these issues as a journalist, scholar, waiter. and public commentator. Relatedly, I am a legal analyst on Between 199?? and 2006. I served as an editorial writer for The Washington Post specializing in legal affairs. In that capacity, I wrote extensively about the Kenneth Starr investigation of Bill Clinton and the resulting impeachment of President Clinton. I also wrote extensively about national security legal matters. Prior to joining the editorial page staff of The Washington Paar. I covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legai Times. In that capacity, I wrote extensively about national security legal matters. I have authored five books, including Starr: A Reassessment, which examines Kenneth Starr's tenure as Independent Counsel in the investigation of President Clinton, and includes a discussion of the Road Map. Additionally, have served as editor for three books and written a number of reports on i33ues regarding national security. My writing has appeared in a wide range ofjournals and magazines including The Atlantic, Slate, The New Republic, The Wiisan Quarterly, The Weekly Standard, Policy; Review, and First Things. I am a frequent speaker on topics of detention. interrogation, national security, and investigations involving the presidency before academic. government, policy, and military audiences. The Lauj?are site in 2017 received more than 1 L4 million visits, constituting more than 15 million pageviews from 6.4 million unique visitors. This declaration is based on my signi?cant study and writing about the history of criminal investigations of presidents. and speci?cally the history of impeachment ls.) referrals to Congress related to presidential conduct. I have studied the accounts of the Road Map in both Leon Jaworshi?s and Jim Doyle?s memoirs.1 I have also conducted severe}. interviews with Stephen Bates, Associate Independent Counsel who helped draft the Starr Report. Lastly, I have done in-depth research on legislative history of the independent counsel law. 12. This declaration has several objectives. First. it provides an overview of my understanding of the Road Map. Second. it recounts the coatinned contemporary interest in the Road Map. Third. it articulates why releasing the Road Map is important to the public?s understanding of the investigation currently underway by Special Counsel Robert Mueller. OVERVIEW OF THE ROAD MAP 13. The SS-page Road Map drafted by Watergate Special Prosecutor Leon Jaworski provided factual information regarding the investigation into President Nixon?s involvement in the break?in and cover-up, with supporting documents but very limited legal conclusions. 14. As I noted in a Laujat'e article recently. Judge John Sirica stated in his decision that the Road Map contained ?no accusatory conclusionsL] . . . no recommendations, advice or statements that infringe on the prerogatives of other branches of government . . . [and] no morai or sociaijudgtnents.? Benjamin Wittes. et at. a How White House Threats Condition 's Realtor, Lawfare {July 21. 2017). I Leon Jaworski, The Right and the Power: The Prosecution of Watergate 102 (Reader's Digest Press. 1976); James Doyle. Not Above the Law: The Battles of Watergate Prosecutors Cox andr Jaworskt' A Behittd?tite~Seenes' Account (Morrow, 1977). LI.) 15. 16. My Lmderstanding of the Road Map is based in part on James Doyle?s boot: on the Watergate investigation. Nor Above the Law. Doyle served as Special Assistant to the Watergate Special Prosecutors. In his book. Doyle provides a description of what the Road Map consisted of: It was a simple document. fif r-five pages long. with only a sentence or two on each of the pages. Each page was a reference to a piece of evidence?sentences from one of the tape recordings. quotations from grand jury testimony . . . . This is how the road map worked. One page might say. ?On March 16., 1973., E. Howard Hunt demanded 3120.000.? Then it would list page references to grand jury testimony from witnesses who saw Hunt?s blackmail note and references to the tapes where Hunt?s demand was discussed. The grand jury transcripts and the tape transcripts would be included . . . . The strength of the doctunent was its simplicity. An inexorable logic marched through its pages. The conclusion that the President of the United States took part in a criminal conspiracy became inescapable. Doyle at 290. The Road Map became the template for the provision of law requiring independent counsels to ?le impeachment referrals when the independent counsel develops evidence that ?that may constitute grounds for an impeachment.? See 28 U.S.C. 595. It thus represented the only model even theoretically available to Independent Counsel Kenneth Starr when he referred impeachment material to Congress in 1998?though as Stephen Bates makes clear in his declaration in this matter, it was not in fact available to the Of?ce of Independent Counsel when sought. Congress appears to have given veryr little thought to the question of how to enshrine in law a requirement for a Road Map?like referral. leaving open the possibility that independent counsels would take very different approaches to referring impeachment material to the legislature. THE ROAD RELEVANCE TO CURRENT QUESTIONS OF URGENT PUBLIC CONCERN 17. I have written extensively regarding Robert Mueller?s current investigation of President Trump. Between 2017 and the present, 1 have written dozens of articles on the subject, which have been published on Lat-gfare. 2 The Att?antie,3 and Foreign Poiiey."' I have been interviewed on the topic regularly, including appearances on and and have been quoted in articles by the New York Times"r and the Washington Posts 18. In an article I recently co-wrote regarding ongoing investigation of President Trump, I argued that the sort of report Muller submits on the results of his investigation will be determined by how he ?imagines his role as special counsel.? Benjamin Wittes 3 See, e. g. Benjamin Wittes, An Oia? OLC Opinion on Whether tire President Can Be Subpoenaed, Lawfare (Aug. 12, 2013); Benjamin Wittes and Susan Hennessey, Seven Frequentiy Asked Muetier Indictment Questionsfor Which We Don 't Have the Answers, Lawfare (Oct. 28, 2017); Benjamin Wittes and Susan Hennessey, Robert ?s Show of Strength: A Quick and Dirty Anaiysis, Lawfare (Oct. 30, 2017). 3 See, e. g. Benjamin Wittes, The Most Damaging Thing That ?s Happened to Trump, The Atlantic (Aug. 22, 2018); Benjamin Wittes, The Fiat-v in Trump?s ()bstruetion-ofjustiee Defense, The Atlantic (June 4, 2018); Quinta Jurecic and Benjamin Wittes, Is America on the Verge of a Constitutionai Crisis?, The Atlantic (Mar. 17, 2018,). 4 See, e. g. Benjamin Wittes and Susan Hennessey, Congressionai Repubiieans Are PuIIing a Bait-and-Switeii in tire Trump-Russia Investigation, Foreign Policy (Dec. 22, 201?); Benjamin Wittes and Susan Hemiessey. Tire Unsafveci Mystery ofMienaeI 's Plea Deai, Foreign Policy (Dec. 8, 2017); Benjamin Wittes and Susan Hennessey, Congress Is Dropping the Bait on Trump ?5 Obstruction ofJustiee, Foreign Policy (Oct. 6, 201?). 5 See, e. g. Wines Interview: Mueiter Investigating ?Three or Four Kinds of Crimes, (Jan. 23, 2018); Is the Moving to a Constitutionai Crisis? (Mat. 19, 2018); Ben Wittes: "Robert CIearIy Has His Eye. on Issue ofCoIIusion (Mar. 1. 2018). 5 See e. g, Russia Probe: Is the White House Trying to Diseredit NPR (Juiy 24, 2017); ?White House Is Wrong' on Manafort Indictment, Legai Expert Says, NPR (Oct. 31, 2017); What a Grand Jury Means for the Russia Investigation, NPR (Aug. 4, 2017). 7 Peter Baker, Is Gaining Steam. Trump Worrvi NY. Times (Feb. 24, 2018). 3 David Nakarnura and Josh Dawsey, Trump Gears [In to Strip More Ciearanees?'otn Tied to Russia Investigation, Wash. Post (Aug. 2018). 19. 21. and Quinta Jurecic, Wih' We Ever Learn What Bob Mnet?fer Knows?, Lawfare (Mar. 21, 2018). As my co?author and i discuss in that article, Mueller could see himself as a traditional prosecutm' and follow an orthodox path where the public will only iearn about what he knows if indictments occur. Id. Alternatively, we argued, Mulier could also take the path that Watergate Special Prosecutorlaworski took, transmitting to Congress something akin to the Road Map. Such a document might include only "bare-bones factual information intended to point committee members to the relevant evidence so [members of Congress] could draw their own conclusions.? M. A third alternative available to Mueller would be the not-so-popular path that Kenneth Starr took in the President Cll?t?n investigation of ?grandiose..truth-reporting." Id. . In short, our article posits that whether to provide an elaborate narrative report, or a Road Map-style report, may represent a decisive fork in the road for Mueller. Given this potential dilemma, it is particularly striking that the Road Map in stark contrast to the Starr Report remains secret. There are, in effect, two models of independent prosecutors transmitting grand jury material to enable Congress?s consideration of potentially unlawful action by a president. One ofthose, the Starr report, is well?understood and generally regarded in a negative light- The other, Jaworksi?s Road Map, is widely understood to have represented an appropriate course, yet its details remain secret more than 40 years after its transmission to Congress. . In light of the Road Map?s high potential relevance to the public?s understanding of the historical and legal frameworks relating to the Mueller investigation, its continued secrecy deprives the public of information regarding a vital historical precedent. As an expert closely following and contributing to these contemporary debates in my capacities as a scholar, writer, and editor-in-chief of Lawfare I believe that releasing the Road Map would signi?cantly enrich the public?s understanding. 23. Based on my work on the independent counsel law?s history, on the Starr investigation and its impeachment referral, and on the ongoing Mueller investigation, I believe that the Road Map has signi?cant contemporary relevance to public and press understanding of the investigation of President Trump. If the many press accounts that Mueller is preparing ?a report? are accurate, the Road Map provides one foundational model of what sort of report he might be contemplating. It is a model very different from what many commentators and journalists appear to be expecting. Yet it is a model that history has treated kindly. It is also a model about which, because it remains under seal, our understanding is extremely limited. In my professional opinion, it is time for that to change. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on Septemberl; 2018. [-77 ?7 *7 ,1 in mmilttes If