Jaworski Memorandum On Prosecuting Nixon
August 9, 1974
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WATERGATE SPECIAL PROSECUTION FORCE |
DEPARTMENT OF JUSTICE |
MEMORANDUM
TO : Leon Jaworski
Special Prosecutor |
DATE: August 9, 1974 |
FROM : Carl B Feldbaum
Peter M. Kreindler
SUBJECT: Factors to be Considered in Deciding Whether to Prosecute Richard M. Nixon for Obstruction of Justice
In our view there is clear evidence that Richard M. Nixon participated in a
conspiracy to obstruct justice by concealing the identity of those
responsible for the Watergate break-in and other criminal offenses. There is
a presumption (which in the past we have operated upon) that Richard M.
Nixon, like every citizen, is subject to the rule of law. Accordingly, one
begins with the premise that if there is sufficient evidence, Mr. Nixon
should be indicted and prosecuted. The question then becomes whether the
presumption for proceeding is outweighed by the factors mandating against
indictment and prosecution.
The factors which mandate against indictment and prosecution are:
- His resignation has been sufficient punishment.
- He has been subject to an impeachment inquiry with resulting articles of
impeachment which the House Judiciary Committee unanimously endorsed as to
Article I (the Watergate cover-up).
- Prosecution might aggravate political divisions in the country.
- As a political matter, the times call for conciliation rather than
recrimination.
- There would be considerable difficulty in achieving a fair trial because
of massive pre-trial publicity.
The factors which mandate in favor of indictment and prosecution are:
- The principle of equal justice under law requires that every person, no
matter what his past position or office, answer to the criminal justice
system for his past offenses. This is a particularly weighty factor if Mr.
Nixon's aides and associates, who acted upon his orders and what they
conceived to be his interests, are to be prosecuted for she same offenses.
- The country will be further divided by Mr. Nixon unless there is a final
disposition of charges of criminality outstanding against him so as to
forestall the belief that he was driven from his office by erosion of his
political base. This final disposition may be necessary to preserve the
integrity of the criminal justice system and the legislative process, which
together marshalled the substantial evidence of Mr. Nixon's guilt.
- Article I, Section 3, clause 7 of the Constitution provides that a person
removed from office by impeachment and conviction "shall nevertheless be
liable and subject to Indictment, Trial, Judgment, and Punishment, according
to Law." The Framers contemplated that a person removed from office because
of abuse of his public trust still would have to answer to the criminal
justice system for criminal offenses.
- It cannot be sufficient retribution for criminal offenses merely to
surrender the public office and trust which has been demonstrably abused. A
person should not be permitted to trade in the abused office in return for
immunity.
- The modern nature of the Presidency necessitates massive public exposure
of the President's actions through the media. A bar to prosecution on the
grounds of such publicity effectively would immunize all future Presidents
for their actions, however criminal. Moreover, the courts may be the
appropriate forum to resolve questions of pre-trial publicity in the context
of an adversary proceeding.
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