1974 DOJ Memo Discusses Naming President Nixon as Unindicted Co‑Conspirator in Watergate Indictments

having the grand jury actually name the specific indictable crimes for which there was clear evidence of guilt was important: “This fundamental conclusion [of criminal guilt] should not be allowed to be lost in a recitation of facts or sources of evidence that omits the basic judgment involved or leaves it open to public (and Congressional) speculation and debate.” The memo also noted that the president could be named an unindicted co-conspirator in the indictment of the other conspirators, the course ultimately chosen by Jaworski. 4. The June 21, 1974, Reply Brief for the United States in US v. Nixon. The U.S. District Court for the District of Columbia refused Nixon’s motion to expunge his inclusion as an unindicted co-conspirator in the Watergate indictment. Nixon asked the Supreme Court to reverse that decision. His lawyers argued that since a sitting president could not be indicted, neither should he be implicated as an unindicted co-conspirator. In this filing on behalf of the United States, Jaworski rejected Nixon’s premise that a president could not be indicted, stating that “It is an open and substantial question whether an incumbent President is subject to indictment.” The brief argues for indictability before concluding that it is unnecessary to decide that question in order to resolve whether to permit his inclusion as an unindicted co-conspirator. (Despite the filing’s origin in Jaworski’s office, it would be a mistake to argue that this filing was not in some sense the position of the Department of Justice. Leon Jaworski and his attorneys were officers of the Department of Justice assigned by the attorney general the responsibility for advancing the legal positions of the United States, including in representations to the U.S. Supreme Court.) The Jaworski filing notes how critical it is to identify the president as one of the criminal accused: “the identification of each co-conspirator — regardless of station — is a prerequisite to making his declarations in furtherance of the conspiracy admissible against the other conspirators.” Although the brief concludes that “it is by no means clear that a President is immune from indictment” during his term, the special prosecutor chose not to indict the sitting president on the basis of “practical arguments.” Those arguments, however, cannot fairly be stretched to confer immunity on the President from being identified as an unindicted co-conspirator, when it is necessary to do so in connection with criminal proceedings against persons unquestionably liable to indictment. Naming the president as an unindicted co-conspirator was necessary for the grand jury to return a “true bill,” Jaworski argued, and “required here to outline the full range of the alleged conspiracy.” There exists, moreover, “a legitimate public purpose in reporting the fact that serious criminal charges against a government official have been made.” HOUSE_OVERSIGHT_030204