Reflecting on President Ford's pardon of Richard Nixon, 50 years later
Last Friday, I joined Barbara McQuade, Jill-Wine Banks, and John Dean at the Gerald R. Ford School of Public Policy to discuss the impact of Nixon's historic pardon
Last week, I traveled to my law school alma mater, the University of Michigan, to speak at the Ford School of Public Policy on a panel with moderator Barbara McQuade, Jill Wine-Banks, and John Dean about Gerald Ford’s pardon of Richard Nixon for his Watergate-related crimes.
John served as Chief Minority Counsel to the Judiciary Committee of the U.S. House of Representatives from 1966 to 1967 and counsel to President Nixon from 1970 to 1973. He was a major witness in the Watergate hearings and wrote the foreword in my latest book, Pardon Power: How the Pardon System Works—and Why.
Jill and Barb are legal analysts for MSNBC and co-hosts of the podcast, Sisters in Law. Jill began her career as an organized crime prosecutor at the Department of Justice and later served as a Watergate assistant special prosecutor. She was intricately involved in the investigation that ultimately led to Nixon’s stepping down as president. At the time, Jill was often the only woman in the room. She told us: “This was a time when only four percent of lawyers were female, and almost zero of the four percent were trial lawyers.”
This month marks 50 years since the pardon of President Richard Nixon by President Gerald Ford—a historic moment for our nation. Jill shared that she “couldn’t understand why he pardoned this person. I believe that accountability is an important part of the rule of law. I believe that if we had gone to trial and the evidence was very clear, there’s no question in my mind that he would have been convicted.” She added, “I think it would have been a warning to all future miscreants in the White House.”
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Nixon was pardoned prior to being indicted—something the Supreme Court has never actually declared legal. But the Nixon pardon has since operated as a sort of “historical” precedent enabling pre-indictment pardons with no political pushback. And according to both John and Jill, his Oval Office tapes were full of evidence of numerous crimes that were never even part of Watergate. He got away with them all, thanks to Ford’s pardon. It changed the course of history, and could have paved the way for more criminal activity in the White House as a result.
Now that there is criminal immunity for presidents, even more questions about the presidential pardon power loom. Are self-pardons now obsolete because no president will need one? Could a criminal president use the pardon power to immunize co-conspirators and accomplices in a criminal enterprise?
John, Jill, Barbara, and I talked about all of this.
A quick history lesson on former President Ford’s pardon of Richard Nixon
As John explained it, the Watergate scandal was a plan orchestrated by the attorney general at the time, John Mitchell, to eavesdrop on the Democratic National Convention Headquarters by hiring burglars to break in and find out what was happening with the political opponents of President Nixon.
In June of 1972, five burglars were taken into police custody at the office of the Democratic National Convention in the Watergate complex, located in Washington D.C. Four of the individuals had actively worked in the CIA, and the fifth was the security chief of the Committee to re-elect the President—a fundraising organization for Nixon’s re-election campaign.
Nixon took many steps to cover up the crimes and his connection to them while insisting that he had no part in them. Once the Department of Justice demanded that he hand over his Oval Office tapes containing incriminating conversations, he fired the special counsel (at the time known as a special prosecutor) who led the investigation. This later became known as the “Saturday Night Massacre.”
Once the tapes were finally released, Nixon faced a lot of pressure to step down and resign from the presidency. Six weeks later, President Gerald Ford was sworn into office and pardoned Nixon for any crimes he may have committed while president.
John explained that “virtually all of his [Nixon’s] Watergate conduct would be immune activity today” under the Supreme Court’s presidential immunity decision because there were a lot of conversations between himself and other government officials or aides. This evidence would almost certainly qualify for protection under what the Supreme Court categorized as “official acts.”
Should Kamala Harris win in November, she may also feel political pressure to follow in President Ford’s footsteps and pardon Trump for the crimes giving rise to the January 6th and Mar-a-Lago cases.
“Can you maybe set the stage for explaining to everybody what the pardon power is supposed to be and maybe how it’s been used that may diverge from its original concept?” —Barb McQuade.
My interest in the pardon power sparked when I was reading the New York Times after Trump took office, and there was a statement that said something along the lines of “the pardon power is absolute.”
That prompted me to write my first op-ed for the Baltimore Sun, which has now, all these years later, become my latest book. The op-ed also came shortly after Trump pardoned Joe Arpaio, the former Arizona sheriff convicted of violating a federal court order directing his office to stop detaining immigrants and Latinos despite no reasonable suspicion that they committed any crimes.
The pardon power traces all the way back to the famous 18th-century B.C. Babylonian text, known as the Code of Hammurabi. It was one of the first examples of a ruler laying down some laws with punishments attached to them. The Code also provided ways in which those punishments could be lifted, including through pardons.
The book later jumps to common law England. In the beginning, there were no jury trials or rights for a criminal defendant to ensure fairness and due process; the pardon power offered a way of showing mercy and compassion or settling discontent among warring private factions. There wasn’t a written criminal code, so disputes were settled privately, with people often punished arbitrarily. Many crimes were punishable by death, and no 4th, 5th, or 6th Amendments protected criminal defendants from government overreach. The idea behind the pardon power, in part, was to allow the monarch to exercise mercy.
English Kings also abused the pardon power for their own self-interest. As a result, over the years, parliament attempted to impose limits on the king’s pardon power. The pardon power was also shared with the Church, so there was never the kind of unlimited power so many people assume that presidents have.
A pardon can also operate as a form of “amnesty”—a way to heal the nation after a trauma.
The “third” category of pardons is one that has no business in government, but we’ve come to expect them as an almost routine part of presidents' exits: corrupt pardons.
It largely began with George H.W. Bush, who, after the Iran-Contra affair, pardoned Caspar Weinberger, Secretary of Defense, and others who could’ve implicated him. All of a sudden, you pardon folks, and they’re not available to testify—you effectively shut down the investigation.
Bill Clinton also had numerous controversial pardons, the most well-known being Marc Rich, a financier who gave a lot of money to Clinton-related interests. Fast-forward to Trump, who issued pardons for people involved in the Mueller investigation, such as Robert Stone and Paul Manafort, who could have testified against him in a criminal investigation or trial.
As John noted, "Pardon powers are something that should be in a remote corner of the presidency and not very prominent. They really shouldn’t dominate a presidency.” He added, “If Mr. Trump is reelected, they are going to be a very powerful part of his presidency because of presidential immunity, and we have a president who has shown no disposition to stay within the guardrails.”
“What if Gerald Ford had not issued that pardon for Richard Nixon and Jill’s indictment would have gone forward?” —Barb McQuade.
There are two points to this. First, law in general is all about incentives and disincentives. I always give my students the example of speed cameras around Washington, D.C. and Baltimore. Many people will ignore the speed limit, despite it being in place and having consequences, until they actually get that ticket in the mail and have to pay the fine. Had Nixon been indicted, I think it would have been a disincentive for future presidents to cross boundaries.
As a matter of law, however, the only thing that Article II—where the pardon power is found—says is that “[the president] shall have [the] power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Now, the mythology around the pardon, which is why I wrote my latest book, is that the words “pardons” and “reprieves” have no constraints or limits. Everything else in Article II has been interpreted as having constraints and limits. The President’s power to execute the law, to take care that the laws are faithfully executed, to exercise the power of the Commander in Chief—all other powers are constrained by different parts of the Constitution and even acts of Congress.
The DOJ pardon guidelines—which are not binding—state that individuals are not eligible until five years after they have completed their sentence, which is also the case in Georgia. There are numerous other constraints on the pardon power at the state level and across the globe. They should be recognized for Presidents, too.
What’s the takeaway?
As we all agreed at the panel discussion, and I have argued many times since the Supreme Court immunity decision, pardons have never been more critical for democracy.
Before the immunity decision, presidents were still accountable to the criminal law. But now, the Supreme Court has set the stage for them to turn the White House into the most powerful criminal organization in the world. All presidents have to do is get their supporters within the Department of Justice, the military, Homeland Security, and the IRS to sign on to committing crimes at the President’s behest and then pardon them. Under the immunity decision, all communications with the President, and evidence of those communications, are off-limits for use in a criminal prosecution. The public might never even learn about this criminal scheme.
The pardon power has never been so dangerous.
Make sure you are registered to vote, volunteer at the polls if you are able, educate your friends and family, and keep fighting for our democracy.
Follow the facts,
KW.
My new book, Pardon Power: How the Pardon System Works—and Why, is OUT NOW!
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Thank you, Ms Wehle, for doing these panel discussions and for sharing them with us, ... for making your assessments of resulting understandings and significant questions and significant areas of needed additional research and understanding.
My sense is that, plain readings of the Constitution and of the debates at the Constitutional Convention, along with private and public writings contemporary the Convention and in the years since the origin of the US and the politics of American living and governance under the Articles of Confederation, the recent Supreme Court majority opinion on immunity is contrary to intention and to widely shared publicly expressed conviction. The opinion does not at all express the logic of the Constitution nor the sincere thoughts and interests of the people who crafted the Constitution and imagined its employment. This Court majority merely broke from constitutional review and chose instead to re-write, without a shred of evidence, meaning and intent.
The bearing which the immunity decision has on such exercise of Executive branch authority, e.g., issuing a pardon, is not only potentially destructive of governance under the Constitution. The effectiveness of constitutional institutions for governance and in shaping political civil living are being unmade.
But, the Constitution need not be unmade by this Court majority opinion if, as is the interest of 'we the people' governance within the logic and forms imparted to our care, improvement, and defense, the many of us who understand the Constitution and work to use and improve it use our existing political tools well and fully to select and elect candidates this November.
That the Court majority so misused fact and so abused its constitutional purpose is plainly and easily discovered, beginning with readings of the actual Convention debates, with historically accurate and important discussions of the interests and living context of the 1770s and 1780s, and with diverse other public information. Beginning discovery readings can include Federalist 50 and Federalist 51 [respectively, "New York, Feb 05, 1788 at https://founders.archives.gov/documents/Hamilton/01-04-02-0198 and "New York, Feb 06, 1788 at https://founders.archives.gov/documents/Hamilton/01-04-02-0199 ]. Also and importantly, various newspaper articles of this era provide glimpses and carefully reasoned (some self-serving and unconvincing) statements on the actual content and conscious limits imposed on Executive Branch authority; in there separate and individual content and conclusions, they help us understand that, at the time, Executive authority in a constitutional democracy was not a well-modeled authority and its proposition posed serious challenges in imagining acceptable form and function.
Separation of powers within the federal government and the fact of the powers consciously reserved to State government rested not at all on the concept of an Executive and of executive authority with expansively imagined immunity to effective checks on and institutional balances for Executive decision-making in form and in function. An accountable and thus very effectively limited exercise of strictly defined limited executive powers was in fact the intent and the purpose of government under the Constitution.
In Madison's own words in Federalist 51, "... the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions...."
Not any Supreme Court can re-write the Constitution for us and on its own. It exceeds authority to do so. Publicly making factual, plain language counter-arguments to the Court majority opinion is the only effective remedy and only effective source of federal legislative action to correct and to uproot and supplant the opinion. Such public action will also provide the good faith and factually constituted environment of public opinion which we need to legislate appropriate and effective definitions of 'good behavior' as a means to enforce at least honest use of judicial authority.
I am an attorney old enough to clearly remember Watergate. Indeed, my mom's boss, Rebublican Rep. Bob McLory, bucked his party and voted to impeach Nixon.
I'll have to return to the immunity decision because I didn't read it to be as far flung as you. You write that immunity now reaches "all communications with the President . . . are off-limits for use in a criminal prosecution."
However, I don't see how a criminal conspiracy including the President could ever be an "official act" immune from post-presidential prosecution.
Again, I need to reread the decision. Thank you for your observations. I'll read your book, once I get through my stack of unreads.