The Pardon in History's Hindsight

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By Richard Ben-Veniste
Friday, December 29, 2006

Gerald R. Ford was a decent and honorable man. Under his steady hand, the nation began the process of recovering from the terrible trauma of Watergate -- the lies, distortions, coverups, misuses of federal agencies to exact political revenge, illegal wiretapping, burglaries. . . . The list went on and on -- all in the midst of the deeply divisive Vietnam War. Did Ford make the right decision in pardoning his predecessor? The answer to that question is more nuanced than either the howls of outrage that greeted the pardon three decades ago or the general acceptance with which it is viewed now.

When Richard M. Nixon resigned and Ford became the 38th president of the United States, the Watergate Special Prosecutor's Office, of which I was a member, was preparing for the criminal trials of Nixon's top aides -- H.R. Haldeman, John Ehrlichman and John Mitchell. We had accumulated significant evidence showing Nixon's active participation in a conspiracy to obstruct the FBI and grand jury investigation of the Watergate break-in and the related "White House horrors," to use Mitchell's famous description. Nixon himself had been named an "unindicted co-conspirator" by the grand jury -- even before the Supreme Court compelled disclosure of the "smoking gun" tape.

It was our collective view that so long as Nixon held the office of president, the constitutionally sanctioned process of impeachment should trump any suggestion that a sitting president be indicted. But there was considerable disagreement within the special prosecutor's office on the proper way to discharge our responsibilities vis-a-vis private citizen Nixon.

Some, including Special Prosecutor Leon Jaworski, were of the view that Nixon's precipitous fall from the highest office was punishment enough. An indictment conjured up the prospect of unprecedented pretrial publicity, making it unlikely that an impartial jury could be selected in the near future. On the other hand, Nixon's personal involvement in the same criminal conspiracy for which his aides were soon to be tried (and convicted) put to the test the maxim that no man is above the law.

Upon taking office as president, Gerald Ford gave reason to believe that any decision regarding a pardon for his predecessor would be made carefully and deliberately. Nineteen days after taking the oath of office, he responded to a press inquiry about a possible Nixon pardon, saying that until any legal process was undertaken it would be "unwise and untimely for me to make any commitment," adding that "until the matter reaches me, I am not going to make any comment during the process of whatever charges are made."

Yet, only 11 days later, Ford reversed course. Citing reasons of national reconciliation, the difficulty Nixon would have in obtaining a fair trial by jury, and the suffering that Nixon and his family had already endured, Ford announced that he had pardoned Richard Nixon for all crimes he committed or "may have committed" while president. The same day, Nixon issued a statement admitting only to "mistakes" and "misjudgments," saying that he "was wrong in not acting more decisively and more forthrightly in dealing with Watergate."

The pardon decision was met with strident criticism by much of the media. The Post equated Ford's pardon to another chapter in the coverup; the New York Times called it "profoundly unwise, divisive and unjust" and "a body blow to [Ford's] credibility." With the benefit of more than 30 years of perspective, the public's view of Ford's decision has softened considerably.

While I do not believe Ford was wrong to pardon Nixon, the timing of the pardon was premature and may have cost Ford the margin of victory in the 1976 election. Had Ford kept to his original plan and allowed time for formal charges to be lodged against Nixon, spelling out the specifics of his culpability, it would have been up to Nixon to either accept the pardon or fight the charges in court. But pardoning Nixon without requiring at least an acknowledgment of responsibility for serious misconduct and for lying to the public left the door open for the spate of revisionist books and articles that followed the resignation.

At bottom, the decision to pardon Nixon was a political judgment properly within the bounds of Ford's constitutional authority. The specter of a former president in the criminal dock as our country moved into its bicentennial year was profoundly disturbing. I believe Jerry Ford acted in accord with what he sincerely felt were the best interests of the country; that there was no secret quid pro quo with Nixon for a pardon in return for resignation; and that Ford, a compassionate man, was moved by the palpable suffering of a man who had lost so much.

The release of a slew of additional Nixon tapes has not been kind to the diminishing ranks of Nixon loyalists -- providing ever more evidence of Watergate-related mendacity. In the end, Ford may have been correct in believing the facts would sort themselves out well enough. Yet, because Ford did not condition his pardon on a formal acknowledgment of culpability by Nixon, historians will have to go to the underlying evidence to make their judgments on Nixon's responsibility for the criminal conduct and constitutional transgressions that left him with the stark choice between resignation and certain removal from office.

The writer, former chief of the Watergate Task Force of the Watergate Special Prosecutor's Office, is a partner in the Washington office of Mayer, Brown, Rowe and Maw.


© 2006 The Washington Post Company

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