Why Gerald Ford's Decision to Pardon Nixon Was The Right Decision Then - And Now

 

 

I have mentioned numerous times in several of my columns how galled I am when columnists on the internet make specious remarks about how certain historical decisions from deep in the past were the wrong ones because they did not take into account society today. I find it just as annoying when the media – as well as a few historians – make that same argument on national television. Such was the case following Donald Trump becoming the first President to be indicted on criminal charges on Thursday.

More than a few historians were called to comment on previous Presidents whose behavior had been above the law. (The questioning was selective then as I’ll make clear below.) Invariably the talk came back to Richard Nixon receiving a full pardon for Watergate by Gerald Ford  has essentially laid the groundwork for the behavior of Trump’s behavior in the White House. Some said that Nixon not being punished encouraged Trump to behave the way he did, some argue that it laid the groundwork for future abuses of power ever since.

The irony of history is not lost on me, though clearly it is lost on the media. When Ford initially pardoned Nixon, the backlash was immediate and it was one of the contributing factors that would eventually cause him to lost to Jimmy Carter when he ran for election to the Presidency in his own right two years later. About a decade after the fact, the public reversed course said that it was the right decision for a nation that needed to heal over two years of Watergate and move forward. Now, in the wake of Trump’s presidency, the tide has shifted again.

Leaving aside the fact that no person, not even the President can see beyond the immediate effects of their actions, I fundamentally think all of this is a fundamentally wasted discussion. Because like all those I loathe, it ignores the realities of the past for the future and the present. In order to justify a decision that really does need to, I’m going to discuss in some detail the factors around Ford’s decision to pardon Richard Nixon, why it was absolutely the right decision for the country, and why regardless of what the media thinks, it would not have made a different for the abuses of the executive branch that followed for the next half century.

First, let’s start with the obvious: Presidents had been bending, if not outright breaking the powers of the executive branch pretty much since the founding of the Republic. Andrew Jackson was considered pretty close to a tyrant by the Senate because of how he chose to the run the country, Lincoln’s disregard for so many aspects of checks and balances are ignored because he was in the midst of a Civil War (and the fact that his assassination more or less made him a saint) Woodrow Wilson was responsible for similar conditions during America’s involvement during World War I (including the imprisonment of over 5,000 German Americans for the duration) and FDR was as hated by as many as those who loved him for the New Deal. Even his role as Commander-in-Chief included one of the most notorious abuses of power as hundreds of thousands of Japanese were held in internment camps with their properties being seized without any renumerations.  Kennedy had no problem allowing his brother to wiretap many in the civil rights movement and LBJ carried on with the practice. Yes J. Edgar Hoover probably would have done it anyway, but neither President had a real problem with it. Both Oliver Stone’s Nixon and the recent Gaslit have the President’s Men frequently agreeing that the Kennedys and Johnson’s crimes were as bad, if not worse, than Nixon’s. This is hypocritical, to be sure, but there is a grain of truth in it: there was a history of abuse of power well before Nixon took office.

Now I am not for one moment excusing anything Richard Nixon ever did; he was a monster beyond reproach and his abuses were utterly blatant beyond the imagining of civilized people. All that said, you can’t forget that both Houses of Congress were heavily Democratic through the entirety of Nixon’s term and that the Democrats had hated Richard Nixon for a quarter of a century.  They say just because you’re not paranoid doesn’t mean they’re not out to get you, and in the case of Richard Nixon both were correct.  Nixon had his defenders among the Republican base, well into ‘the Final Days’ and there are still people who, to this day, believe that Nixon was framed for his crimes.  Could he have survived everything that happened, no matter how horrible, if there had been more Republicans in Congress?

Another thing: when Nixon won reelection with 49 of 50 states in 1972, the RNC was woefully underfunded compared to the CRP, something many Republicans were very bitter about when this landslide failed to put the GOP take over either house of Congress  that year. Nixon won every state but Massachusetts, but his party gained just 13 seats in the House and lost two seats in the Senate.  The conservatives in the party had never been thrilled with Nixon and Nixon had been talking in private about forming a completely new party made up of conservative Democrats and liberal Republicans. (He had plans to be the last President to ever be a Republican.) So as much we want to believe that this was about an abuse of power so blatant it crossed a party lines, it’s worth noting neither party had much love for Richard Nixon before and even then.

I mention this because Nixon knew this very well and was hoping defend himself with the threat of Spiro Agnew in the White House. Then Agnew got involved with a corruption scandal of his own and had to resign. Nixon’s choice of Gerald Ford was done in part as counteraction to this: Ford, while considered a nice guy, was also considered a lightweight intellectually (LBJ had once said: “He couldn’t walk and chew gum at the same time; another famous comment was that when he was with Michigan, he had played football without a helmet.) Nixon was more than willing to go down with the ship: all his actions, including the Saturday Night Massacre, prove this. By the final months, even his own cabinet was beginning to think he had lost touch with the reality on the ground and it wasn’t until Goldwater gave him the famous diagnosis that there weren’t enough Republican votes against conviction that he resigned.

Ford’s decision to issue a blanket pardon was meant with immense hostility and overshadowed the rest of the term. It was as much a political decision as anything else: Congress had ground to a halt the last several months because of Watergate and it was unlikely that it would until the issue was resolved. Furthermore, Ford and the GOP was hoping that with ‘the Nixon issue’ out of the way, they might have a chance to make some gains in the mid-term elections which were at the time less than three months away. (As we all know that strategy backfired spectacularly.)

So yes, there were political factors involved – Gerald Fold was a politician after all. He also did believe very strongly that he had end the national nightmare that had plagued the country for almost two years. But say for the sake of argument, he had decided not to do so. It would have meant going against both his own political interests and the national mood, but that’s not what the historians preaching today care about now. Let’s say he decided to not pardon Nixon. What would have happened next?

Start with the obvious: who would have tried him? Yes, Congress had set out four counts of impeachment but those were only for the Senate to try him while he was President. Nixon had resigned. There was no precedent for trying a former president for any criminal offenses. Who would have had jurisdiction?

The Senate technically would have had it, but I’m relatively certain that nobody in Congress would have wanted to go forward with it after he resigned. The whole purpose of impeachment was to get Nixon out of office. He was now gone. The whole argument for trying Donald Trump after January 6^th was to prevent from running for President again. Nixon was already in his final term, and not even he would have considered trying to break the rules in this regard.

The Justice Department would have had jurisdiction  to investigate him and make recommendations to the court. That would have worked for the conspiracy charges, but what about the bombing of Cambodia which was the fourth count of the indictment? This was a can of worms no one would have wanted open, not the least Henry Kissinger who was still part of the Administration and certainly not Gerald Ford. It would have been bad enough to have the President in the dock at the Senate; would anyone have wanted him standing trial at the Hague? The nation had just gotten out of Vietnam, the last thing anyone wanted to do was revisit another foreign policy travesty.

Then there are the tapes. One of the reasons Nixon’s resignation was that he would never have to make his private recordings public. (For good reason, we’ve heard a lot of what’s on them.) Nixon would have availed himself of every pre-trial motion imaginable to make sure those tapes never got admitted to evidence. The proceedings would have no doubt dragged on at least six to seven months before we ever got inside a courtroom.

Then there’s the problem of witnesses. Most of the ones they’d have to call would have testified before Congress already and many of them were already in prison because they’d refused too. I have little doubt Nixon would have been more than willing to use the concept of executive privilege as a way to keep every single witness the prosecution could call from testifying – another several weeks, if not months of delay – and how many of them would be willing to testify against Nixon in exchange for lesser sentences? I can imagine how thrilled so many of the public would be that men like Haldeman, Charles Colson and John Ehrlichman walking free to talk against their boss in court for crimes they’d help commit.

And this gets to the final point: How in the 1970s could you find a jury that could be purely impartial? No one in America for the past twenty years could claim to be utterly neutral about Richard Nixon. He’d gotten more than 60 percent of the popular vote two years earlier, and his approval ratings might have been between thirty and thirty-five percent by 1974, but that’s still 3 out of ten.  Everyone says now that it was a mistake for Nixon to have been pardoned. Does anyone honestly think that a trial that might very well end in an acquittal would have been any better for the country? The one thing everyone seemed to take away from Watergate was that it was an example of ‘the system working’. Would they have had the same thought if all of this national nightmare had kept going on and the end was Richard Nixon walking outside the courtroom a free man? It’s not like controversial trials have ever changed people’s opinions of the defendants; O.J. got acquitted, remember.

And for those pundits who think that a trial for Nixon would have scared off future Presidents from abusing executive power; remember that Gerald Ford’s chief of staff when he became President was a man named Richard Cheney. The same Richard Cheney who was becoming enamored of the grand unit of limiting all power to the executive branch with no checks or balance. The same theory that had been giving the blessing of legal scholars such as Antonin Scalia and future Attorney General Bob Barr. (By the way, those people who think Donald Trump would have learned a lesson from Nixon going to prison….they have been covering Trump all this time, right?)

The 1970s had already been a horrific decade when Ford took office in 1974, and they were going to get even rougher after he did: inflation and stagflation, oil embargoes, the battle over the ERA, the rise of the conservative movement, crisis in Russia and the Middle East. What good would it have done America had in addition to all they had to deal with the continuing distraction of the trial of a former President that they just wanted to put in the rear view mirror when there was nothing to be gained and everything to be lost?

Gerald Ford made the kind of bold decision that we hope our Presidents are capable of: the decision to put country over party in the name of the national interest regardless of the political or personal cost to themselves. It was the right call in 1974 and it is the right call half a century.  Future Presidents may merely have learned how to bend the rules without suffering anywhere near the consequences Nixon did. But you can’t blame that on Ford either, nor the fact that so many people took the wrong lessons away from Watergate.  Donald Trump made his own bed. You can’t blame Ford for that, no matter how much you want too.