Why pardoning Nixon was wrong.

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Dec. 29 2006 6:48 PM

Why Pardoning Nixon Was Wrong

Ignore the cost-free magnanimity of Ford's rehabilitators. You had it right the first time.

In the days since Gerald Ford's death, so much praise has been heaped on the late president's blanket pardon to his predecessor, Richard Nixon, that you'd think Tricky Dick was Jean Valjean. These magnanimous pronouncements are a preening exercise in cost-free generosity three decades after the fact. They reflect little or no consideration of the merits of the pardon itself.

No new information has emerged during the past 32 years that makes Ford's pardon to Nixon look any more justifiable; indeed, what facts have dribbled forth make it seem less so. (More on these later.) Nor can the pardon plausibly be considered an example of the bipartisan spirit for which Ford is justly, if too extravagantly, praised by Washington insiders. The pardon may have had the long-term effect of tamping down partisan warfare between Democrats and Republicans over a possible criminal trial (obstruction of justice would have been the likeliest charge), but when a Republican short-circuits prosecution of a fellow Republican, you can't call that bipartisanship. These logical obstacles help explain why people who defend the pardon today do so with vague language about how, in retrospect, it was better for the country to set rancor aside and move on. Roger Wilkins, who as an editorial writer for the New York Times condemned the pardon back in 1974, wrote Ford last month to tell him he has since changed his mind. (The Times itself, wisely, has not.) Here's what Wilkins told the Washington Post:

Ford was right. The country really needed to move on. The picture of a president in the dock with these motley Democrats hounding him, it would have made the country—we'd gone through some ugly times, but it would have been uglier. ... If Ford hadn't done a thing else in his presidency, that would have been a great service to the country.

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Sen. Edward Kennedy, D-Mass., is another person who denounced the pardon in 1974 but subsequently changed his mind:

Unlike many of us at the time, President Ford recognized that the nation had to move forward, and could not do so if there was a continuing effort to prosecute former President Nixon. His courage and dedication to our country made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.

Kennedy uttered these words at a 2001 ceremony at the John F. Kennedy Library and Museum in which Ford was presented with a Profile in Courage award, named for JFK's famous book about U.S. senators who risked all to do what is right. The committee that chose Ford included David McCullough, John Seigenthaler, Marian Wright Edelman, and Elaine Jones; I'd be surprised if a single one of them thought the pardon was a good idea back in 1974. At the Kennedy Library, Ford shared the podium with Rep. John Lewis, D-Ga., who was also given a Profile in Courage award that year. The magnitude of their respective sacrifices were, to say the least, divergent. Lewis suffered more than 40 beatings and arrests in order to bring basic rights to African-Americans. Ford suffered an early and extremely lucrative retirement (golfing and sitting on eight corporate boards) in order to keep Richard Nixon out of jail.

Why was Ford wrong to pardon Nixon? Mainly because it set a bad precedent. Nixon had not yet been indicted, let alone convicted, of any crime. It's never a good idea to pardon somebody without at least finding out first what you're pardoning him for. How can you possibly weigh the quality of mercy against considerations of justice? Yet it would happen again in December 1992, when departing President George H.W. Bush pardoned Caspar Weinberger, former defense secretary, 12 days before Weinberger was set to go to trial for perjury. As I've noted before, this was almost certainly done to prevent evidence concerning Bush's own involvement in Iran-contra (when he was vice-president) from becoming public. The final report from Iran-contra special prosecutor Lawrence Walsh called it "the first time a President ever pardoned someone in whose trial he might have been called as a witness," but in fact it was the second. Ford's motive was less self-protective, but, as Slate's Christopher Hitchens notes here, it had the same effect of shutting down further investigation into illegal activities. Without the precedent of Ford's pre-emptive pardon, Bush père might have lacked the nerve to attempt one himself, and certainly would have created a much bigger ruckus if he went ahead and did it anyway.

If Ford hadn't issued the pardon, would Nixon have stood trial, or perhaps even been sent to jail? If so, his successors might have learned the valuable lesson that presidents are not above the law. But odds are that no prosecution would have taken place. In a Dec. 28 editorial, the Wall Street Journal stated that Watergate Special Prosecutor Leon Jaworski "seemed determined to pursue" a criminal trial. The precise opposite is true. By his own account, Jaworski was reluctant to pursue prosecutorial alternatives to impeachment. James Cannon's 1994 book Time and Chance: Gerald Ford's Appointment With History  quotes Jaworski saying, "I knew in my own mind that if an indictment were returned and the court asked me if I believed Nixon could receive a prompt, fair trial as guaranteed by the Constitution, I would have replied in the negative." In a Dec. 29 op-ed in the Washington Post, Jaworski's former employee, Richard Ben-Veniste—yet another person who changed his mind and now thinks Ford was right to pardon Nixon—writes that Jaworski was "of the view that Nixon's precipitous fall from the highest office was punishment enough." Even if Jaworski had been talked into indicting Nixon, the prosecution's constitutionality—at best, uncertain—would have been a matter for the courts to decide, and the judiciary tends to err on the side of caution when considering separation of powers. That probably helps explain why President Bill Clinton was never indicted for perjury, even after congressional efforts to remove him from office failed.

Bob Woodward (another member of the "I can't believe I'm a Nixon defender" club) wrote extensively about the Ford pardon in his 1999 book Shadow: Five Presidents and the Legacy of Watergate, and after Ford's death, he recycled that reporting in the Washington Post. The gist of Woodward's account is that immediately prior to Nixon's resignation, Nixon's chief of staff, Alexander Haig, offered what Ford interpreted to be a quid pro quo: Nixon will leave if you guarantee him a pardon. (Haig denies that he proposed one in exchange for the other.) Ford answered that he would have to think about it. After an aide pointed out to him that such a deal would be outrageously improper, Ford phoned Haig to say, "No deal." But the very next day, Ford told another aide that he would pardon Nixon. A month later, President Ford did so. We can argue about whether this sequence of events constituted an implicit deal, but at the very least, we must conclude that the pardon was Nixon's idea, not Ford's.

Woodward further reports that when Ford issued the pardon, he was very concerned about the state of Nixon's health. Nixon and Ford, Woodward reported in a Dec. 29 Washington Post piece  (the Post has given Ford's death the kind of extensive coverage usually reserved for the start of a major war), were much better friends than people ever realized. These details lend a human perspective to Ford's decision to pardon Nixon, and spotlight Ford's undeniable decency. But pardons aren't supposed to be granted on the basis of friendship. As for Nixon's health, I don't recall many tears being shed this past July when Kenneth Lay, then awaiting sentencing after his conspiracy and fraud convictions, breathed his last. Can anyone doubt that Lay's prosecution probably contributed to his death? Would anyone argue that Lay therefore should never have been prosecuted? (In the event, Nixon lived 20 years more after his resignation, remaining active to the last and dying at 81.)

I don't mean to overstate my opposition to Nixon's pardon. I didn't think it was a world-shattering calamity then, and I don't think it was a world-shattering calamity now. But it did not serve the interests of justice, it had an unfortunate consequence in the Weinberger pardon, and it carried a mild whiff of corruption. Ford placed great stock in the fact that, according to a 1915 Supreme Court decision in Burdick v. United States, acceptance of a pardon constitutes an admission of guilt. But in May 1977, Nixon the ex-president would tell David Frost, "When the president does it, that means that it is not illegal." Which do you remember—that quotation, or Burdick v. United States, a copy of which Ford would carry around with him for the rest of his life? Pardoning Nixon was wrong, and the death of the very nice man who did it does not change that.

Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.

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