August 8, 1974: Watergate Prosecutor Jaworski Receives Memo Recommending Nixon Be Prosecuted

As President Nixon is resigning his office (see August 8, 1974), Watergate prosecutor Leon Jaworski receives a memo from his staff recommending Nixon be prosecuted. The memo, from Carl Feldbaum and Peter Kreindler, says: “[T]here 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.… Mr. Nixon should be indicted and prosecuted.” They summarize the arguments against prosecution: Nixon has been punished enough by being forced to resign, the House Judiciary Committee voted to impeach him (see July 27, 1974, July 29, 1974, and July 30, 1974), prosecuting Nixon might “aggravate political divisions in the country,” “the times call for conciliation rather than recrimination,” and a fair trial for Nixon would be difficult “because of massive pre-trial publicity.” Those arguments are outweighed by those favoring indictment and prosecution: 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,” especially if Nixon’s “aides and associates, who acted upon his orders and what they conceived to be his interests, are to be prosecuted for the same offenses.” Not prosecuting Nixon would further divide the country, the memo asserts, and would threaten “the integrity of the criminal justice system and the legislative process, which together marshalled the substantial evidence of Mr. Nixon’s guilt.” The Constitution provides that anyone removed from office by impeachment should be tried in a court of law. Nixon’s resignation is not “sufficient retribution for [his] criminal offenses… [a] person should not be permitted to trade in the abused office in return for immunity.” And finally, to allow the argument of massive pre-trial publicity to obviate the ability to indict and prosecute Nixon “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.” [Leon Jaworski, 1982]