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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
IN RE: PETITION OF
)
BENJAMIN WITTES, ET AL
) Misc. No. 18-00125 (BAH)
)
)
____________________________________)
THE GOVERNMENT’S RESPONSE TO PETITION FOR ORDER DIRECTING
RELEASE OF THE “ROADMAP” TRANSMITTED BY THE WATERGATE GRAND
JURY TO THE HOUSE JUDICIARY COMMITTEE IN 1974
INTRODUCTION
In this petition, Benjamin Wittes, Jack Goldsmith and Stephen Bates (“petitioners”)
request an order – pursuant to the Court’s “inherent authority” – requiring the National Archives
and Records Administration (“NARA”) to disclose the work of the first Watergate grand jury,
which was eventually sent as a report to the House Judiciary Committee in 1974. This is not the
first such petition for the so-called “Roadmap.” In 2011, another researcher sought its unsealing,
as part of a broad request for materials associated with each of the three Watergate grand juries.
See generally, In re Petition of Geoffrey Shepard, 800 F. Supp. 2d 37 (D.D.C. 2011). In
connection with that matter, the government provided the Court with a copy of the Roadmap in
camera and ex parte, together with an explanatory declaration from NARA’s Chief of the Special
Access and FOIA Branch. On September 20, 2018, the Shepard petition was transferred to this

Court, together with this related petition. On October 4, 2018, the government provided a status
report in the Shepard matter, and on October 11, 2018, this Court issued an order directing
NARA to process and release those portions of the Roadmap to which NARA had no objection
to releasing because they are otherwise publicly available through the House Judiciary
Committee report or elsewhere in the public domain. See In Re Petition for Order Directing

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Release of Transcripts of Testimony Before Watergate Grand Juries, Misc. No. 11-0044,
document #26 (Oct. 11, 2018).
For this reason, and the reasons that follow, this Court should (1) determine that this
petition is largely moot in light of the forthcoming release of the redacted Roadmap, and (2) with
regard to still secret grand jury information, hold the remainder of the petition in abeyance
pending the D.C. Circuit’s decision in the case of McKeever v. Sessions, D.C. Cir. No. 17-5149
(oral argument heard September 21, 2018).
ARGUMENT
I.

THE PETITION IS LARGELY MOOT
The petition at issue here seeks an order directing NARA to release the Roadmap. This

Court, in the Shepard matter, has already issued such an order. In Re Petition for Order
Directing Release of Transcripts of Testimony Before Watergate Grand Juries, Misc. No. 110044, document #26 (Oct. 11, 2018). The forthcoming release constitutes a majority of the
Roadmap and its supporting documents. As NARA has explained, the Roadmap consists of a
two-page summary statement, followed by 53 individually numbered statements (“Statements of
Information”), each of which provides citations to documents supporting that statement. In total,
there are 97 documents supporting the 53 Statements of Information. NARA was able to locate
duplicates of 81 of the documents included in the Roadmap that had been published or released
as part of NARA’s Watergate collection, or are available elsewhere in the public domain. Id.
With respect to the Statements of Information (as opposed to the supporting documents), the
number of still secret statements is even smaller, with only a few statements likely to be
redacted.

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The petition in this case is entirely subsumed within the Shepard petition. Indeed,
petitioners here have expressly disavowed any intention of seeking the grand jury documents
underlying the Statements of Information. See Petition at 2, n.1 (“This petition seeks only the
Road Map and not the accompanying records.”). In that respect, this petition is narrower than
the Shepard petition, and the forthcoming release in that case will therefore exceed in large part
what petitioners in this case have sought. Accordingly, to the extent an order has already issued
requiring the release of a majority of the Roadmap, this petition is largely moot.
II.

WITH RESPECT TO THOSE FEW STATEMENTS OF INFORMATION
THAT REMAIN PROTECTED BY CRIMINAL RULE 6(e), THE COURT
SHOULD HOLD THE PETITION IN ABEYANCE
As noted above, the vast majority of the Statements of Information will soon be

released. For those few statements that remain secret grand jury information, this Court should
defer ruling until the D.C. Circuit issues its decision in McKeever. That case addressed squarely
the contested issue of whether the district courts have inherent authority to order the disclosure
of protected grand jury information for reasons outside those articulated in Criminal Rule of
Procedure 6(e). The case has been argued and a decision will be forthcoming. 1 The government
has strong arguments favoring its view of Rule 6(e), and even if the D.C. Circuit rules otherwise,
petitioners – who will have already received most of the Roadmap and whose stated purposes for
filing the petition will have been realized through that release – will not be prejudiced by the
short delay. 2

Another appeal raising the same legal issue was recently argued in the Eleventh Circuit. See
Pitch v. United States, 11th Circuit No. 17-15016 (argued October 3, 2018).
1

The government’s request to hold in abeyance resolution of still-secret portions of the Roadmap
applies equally to the Shepard case. If the Court agrees to hold the remaining parts of this
petition in abeyance, it should also enter an order in Shepard holding in abeyance the
3

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A. The Government Has Strong Arguments that Rule 6(e) Comprehensively
Regulates Grand Jury Proceedings, and Courts May Not Invoke Inherent
Authority to Circumvent the Plain Text of the Rule
The D.C. Circuit will soon decide the McKeever case, in which it may find that district
courts lack inherent authority to order grand jury information disclosed outside the confines of
Rule 6(e), solely for the reason of historical or academic interest. Such a ruling would be
determinative of the issues here, and would obviate the need for the Court and the parties to
expend resources applying and weighing a nebulous, multi-factor test against the presumed
secrecy of the grand jury information at issue.
The government’s arguments are strong, particularly in this Circuit. The D.C. Circuit has
never permitted the release of secret grand jury information for reasons of historical interest
alone. To the contrary, the D.C. Circuit has explained that the Rule 6(e) “sets forth in precise
terms to whom, under what circumstances and on what conditions grand jury information may be
disclosed,” Fund for Constitutional Gov’t v. Nat. Archives & Records Serv., 656 F.2d 856, 868
(D.C. Cir. 1981), and that consequently a district court cannot authorize any such disclosure
“unless specifically permitted by one of the exceptions set forth in Rule 6(e)(3).” In re Sealed
Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986); see also In re Sealed Case, 250 F.3d 764, 769 (D.C.
Cir. 2001) (rejecting argument that “there is a place for implied exceptions to the Rule” because
“[t]he Rule on its face prohibits” a disclosure if “it does not except it from the general

government’s obligation under the Court’s October 11, 2018 Order to contact any affected
individuals and address the remaining grand jury information under the so-called “Craig”
factors.
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prohibition”). 3 The Supreme Court has likewise stressed that Rule 6(e) “is, on its face, an
affirmative limitation on the availability of court-ordered disclosure of grand jury materials,” and
that its list of exceptions reflect Congress’s “judgment that not every beneficial purpose, or even
every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy.”
United States v. Baggot, 463 U.S. 476, 479-80 (1983). Indeed, because Rule 6(e)’s disclosure
bar was enacted directly by Congress, this Circuit has held that Rule 6(e) qualifies as a “statute”
that “specifically exempt[s]” records from disclosure for purposes of Exemption 3 of the FOIA,
5 U.S.C. § 552(b)(3). See Fund for Constitutional Gov’t, 656 F.2d at 866-67. If petitioners had
filed a FOIA request for the still secret portions of the Roadmap, citing academic and historic
interest, that request would have been denied on the ground that Rule 6(e) exempts that
information from disclosure. Nothing in Rule 6(e) suggests that petitioners should obtain a
different result merely because they have applied directly to a district court.
Petitioners mistakenly suggest that the D.C. Circuit’s opinion in Haldeman v. Sirica, 501
F.2d 714 (D.C. Cir. 1974) (en banc) supports their contention that historical interest is sufficient
grounds on which to breach grand jury secrecy. In that case, which predated Congress’s direct
enactment of the operative language in Rule 6(e), the D.C. Circuit refused to block the disclosure
of the Roadmap to the Judiciary Committee of the House of Representatives in an investigation

3

In the D.C. Circuit’s lone (non-precedential) decision that squarely addressed the issue of
whether grand jury information may be disclosed purely for reasons of academic and historic
interest, now-Justice Ginsburg rejected the petition. See In re Petition of Newman, Petition for
Writ of Certiorari, No. 88-548, 1988 WL 1094826 (Sept. 29, 1988) (finding that “[s]ince a claim
of historical importance, without more, falls outside the scope of the Rule 6(e)(3) exceptions
permitting disclosure, the district court’s denial of Professor Newman’s petition to unseal . . .
was appropriate.”)
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related to Watergate. The circuit court’s per curiam order did not state the basis for its
conclusion that the disclosure was consistent with Rule 6(e), see id. at 715 (noting only the
Court’s “general agreement with [the district court’s] handling of these matters”), and the district
court’s opinion was similarly unclear about the justification for the disclosure, see In re Report &
Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to the
House of Representatives, 370 F. Supp. 1219, 1227-30 (D.D.C. 1974).
But the D.C. Circuit has subsequently treated Haldeman as standing only for the
proposition that an impeachment proceeding may qualify as a “judicial proceeding” for purposes
of Rule 6(e). See In re Sealed Motion, 880 F.2d 1367, 1379-80, 1380 n.16 (D.C. Cir. 1989) (per
curiam) (discussing broad interpretation of the term “judicial proceeding” now found in
6(e)(3)(E)(i)); see also In re Report, 370 F. Supp. at 1228-30 (discussing interpretation of the
term “judicial proceeding” and concluding that “it seems incredible that grand jury matters
should be lawfully available to disbarment committees and police disciplinary investigations and
yet be unavailable to the House of Representatives in . . . an impeachment investigation); In re
Madison Guar. Sav. & Loan Ass’n, No. 94-1 (D.C. Cir. Special Div. July 7, 1998) (per curiam)
(authorizing disclosure of grand jury materials to the House of Representatives for potential
impeachment proceedings under the judicial proceeding exception) (attached at Exhibit A); In re
Grand Jury Proceedings of Grand Jury No. 81-1 (Miami), 669 F. Supp. 1072, 1075-76 (S.D.
Fla.) (same), aff’d, 833 F.2d 1438 (11th Cir. 1987). Nothing in Haldeman supports a district
court’s broad invocation of “inherent authority” to circumvent the requirements of Rule 6(e).
Petitioners also incorrectly rely on Pittsburgh Plate Glass Co. v. United States, 360 U.S.
395, 399 (1959) to suggest that the Supreme Court has endorsed a district court’s “inherent

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authority to permit the release of grand jury material under appropriate circumstances,” including
for atextual reasons. Petition at 10, 12. The discretion referenced in Pittsburgh Plate Glass was
the discretion to make determinations within the text of a Rule 6(e)(3)(E) exception. Pittsburgh
Plate Glass Co., 360 U.S. at 398-99 (1959) (affirming the denial of a request for disclosure under
Rule 6(e) while observing that disclosure under that rule is “committed to the discretion of the
trial judge”). Indeed, the Court was clear that “any disclosure of grand jury minutes is covered
by [Rule 6(e)].” Id. at 398 (emphasis added). Pittsburgh Plate Glass, therefore, only supports
the government’s position, and is consistent with Supreme Court’s unbroken precedents
cautioning against the use of inherent authority to circumvent the federal rules. See Baggot, 463
U.S. at 479 (stating that Rule 6(e) operates as “an affirmative limitation on the availability of
court-ordered disclosure of grand jury materials”) (emphasis added); Carlisle v. United States,
517 U.S. 416, 426 (1996) (holding that inherent power “does not include the power to develop
rules that circumvent or conflict with the Federal Rules of Criminal Procedure”); accord Bank of
Nova Scotia v. United States, 487 U.S. 250, 254 (1988); United States v. Hall, 214 F.3d 175,
177-78 (D.C. Cir. 2000).
This jurisprudence comports with the Supreme Court’s admonitions that inherent judicial
power—that is, the power that inheres in federal courts by virtue of their status as courts—
generally extends only to “actions that protect and vindicate the judicial process and the judicial
institution itself.” Carlson v. United States, 837 F.3d 753, 771 (2016) (Sykes, J., dissenting); see,
e.g., United States v. Williams, 504 U.S. 36, 45-46 (1992) (inherent powers “deal strictly with the
courts’ power to control their own procedures,” including “improv[ing] the truth-finding process
of the trial” and “prevent[ing] parties from reaping benefit or incurring harm from violations of

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substantive or procedural rules . . . governing matters apart from the trial itself”). Even that
narrow power is further circumscribed in the context of the grand jury, over which the district
court exercises only “very limited” supervisory authority. Williams, 504 U.S. at 50, 47 (stating
that “the grand jury is an institution separate from the courts, over whose functioning the courts
do not preside”). 4
Given the strength of this authority, including the plain text of the rule and its history, this
Court should wait for the D.C. Circuit’s ruling with respect to those few items of information
that will remain redacted in the forthcoming release of the Roadmap.
B. Petitioners Will Not Be Prejudiced By a Short Delay
A short delay in adjudicating the remaining small portions of this petition will not
prejudice petitioners, despite their protestations of urgency. This is true for a number of reasons.
Petitioners rely on two justifications for wanting the Roadmap released, but only one
purports to be time sensitive. The first reason petitioners cite is the intrinsic historic value in the
substance of what the grand jury provided to the House of Representatives. But as petitioners
themselves note, to the extent the content of the Roadmap remains secret, it has been secret for
more than forty years. See Petition at 17. Another month or two more will make little difference
with respect to the substance of the redacted Statements of Information.
The real justification animating petitioners’ claim for urgency is their argument that
release of the Roadmap will allow them to offer their scholarship to inform the Special Counsel’s

The government’s arguments as to why inherent authority provides no basis for district courts
to order disclosure of grand jury information outside the contours of Rule 6(e), and specifically
for reasons of historic interest, are laid out in detail in McKeever, supra (document #1734234)
(filed June 4, 2018). Those arguments are not fully reproduced here, but are incorporated by
reference and preserved as if set forth in full.
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options with regard to any work product that he may or may not produce. See Petition at 19-20,
Wittes Decl., ¶19, Goldsmith Decl., ¶¶ 23-25. Similarly, petitioners argue that the Roadmap will
better position the public to evaluate the Special Counsel’s actions. See, e.g., Petition at 20;
Goldsmith Decl., ¶¶ 27-28. For these reasons, petitioners argue, time is of the essence.
Petitioners’ claim of exigency, while questionable to begin with, has largely been
overtaken by events. When the redacted Roadmap is released in connection with the Shepard
matter, it will satisfy all of petitioners’ stated purposes in seeking disclosure. Any perceived
urgency to this matter will necessarily dissipate, and no prejudice will result from holding in
abeyance resolution of the final few Statements pending a decision from the D.C. Circuit.
Any assertion of urgency as to those final few Statements that remain redacted is further
undermined by the fact that the Shepard disclosures will merely augment an already extensive
public record relating to the Roadmap. As petitioners themselves recognize, the majority of the
Roadmap was already in the public domain before this Court’s order in Shepard, including the
form that it took. Wittes Decl. at ¶ 15; Goldsmith Decl., ¶¶ 14-20, Indeed, Richard Ben-Veniste
and Philip Allen Lacovara, who have some degree of personal knowledge, have described
publicly the format and general content of the Roadmap. See, e.g., Ben-Veniste Decl., ¶¶ 9-11;
Lacovara Decl., ¶15. Mr. Ben-Veniste underscored the public nature of the Roadmap’s contents.
Citing the extensive public record of Watergate, Mr. Ben-Veniste attests that, “[b]ased on my
first-hand recollection of the structure and content of the Road Map, I can confirm that those
publications viewed in their totality contained most, if not all, of the information that was
referenced in the Road Map.” Ben-Veniste Decl., ¶ 14. Given the public nature of most of the
information in the Roadmap, therefore, as well as its well-known format and structure, scholars

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can already analyze the Watergate model, and can fully inform the public as to how any future
Special Counsel product might compare. They will not be prejudiced by a short delay with
respect to the limited, non-public portions pending the D.C. Circuit’s forthcoming decision. 5
CONCLUSION
For the foregoing reasons, the Court should determine that this matter is largely moot,
and hold in abeyance those portions that are not moot until the D.C. Circuit issues its decision in
McKeever.
Dated: October 12, 2018

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General

/s/ Elizabeth J. Shapiro
ELIZABETH J. SHAPIRO
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20530
Phone: (202) 514-5302
Fax: (202) 616-8470
Email: Elizabeth.Shapiro@usdoj.gov

For the same reasons, to the extent petitioners wish to assist the Special Counsel in evaluating
his options, the public record already permits such analysis. Although Petitioner Bates notes that
he attempted to obtain the Roadmap from NARA when he worked for Independent Counsel
Starr, and was unsuccessful, see Petition at 19; Bates Decl., ¶¶ 15-16, he does not say whether he
looked to public sources or sought the Roadmap under Criminal Rule 6(e). Prof. Bates also
notes that Independent Counsel Starr’s investigation provides no meaningful precedent because
28 U.S.C. § 595(c) authorized direct transmittal of a report to the House of Representatives. See
Bates Decl, ¶¶ 15, 23-24. The Independent Counsel did, however, seek judicial authorization to
transmit his report, which the D.C. Circuit granted pursuant to Rule 6(e)(3)(E)(i) (preliminarily
to or in connection with a judicial proceeding). See Exh. A.
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