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President Ford's Pardon of Richard M. Nixon: Constitutional and Political ConsiderationsAuthor(s): Mark J. RozellSource: Presidential Studies Quarterly, Vol. 24, No. 1, Domestic Goals and Foreign PolicyObjectives (Winter, 1994), pp. 121-137Published by: Wiley on behalf of the Center for the Study of the Presidency andCongressStable URL: http://www.jstor.org/stable/27551198Accessed: 06-07-2016 14:52 UTC

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President Ford's Pardon of Richard M. Nixon: Constitutional and Political Considerations

MARK J. ROZELL Associate Professor of Political Science

Mary Washington College

Abstract President Gerald R. Ford's full and unconditional pardon for Richard M. Nixon

generated intense political and constitutional controversy in its time. The decision generated enormous emotions and recriminations. In the wake of that decision, numerous legal and political writings challenged the validity of Ford's action. With hindsight, removed from the passions of the mid-1970s political context, a different perspective on Ford's decision can be presented. The purpose of this paper is to provide such a perspective by examining the constitutional arguments both opposed to and in favor of the Nixon pardon, and then to develop a normative conclusion based on the weight of the evidence.

"The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." (U.S. Constitution, Article II, Section 2.)

"Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power

conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard

Nixon, has committed or may have committed or taken part in during the period from January 20, 1969

through August 9, 1974." (Pardon proclamation of President Ford, September 8, 1974.)

From a public relations standpoint the first four weeks of Gerald R. Ford's presidency were an astounding success. In the aftermath of Watergate and the resignation of President Richard M. Nixon, the soft-spoken and unpretentious Gerald R. Ford seemed to be the right man at the right time. People responded favorably to his efforts to lead an open, candid administration. His sense of humor and ability not to take himself too seriously were, for an increasingly cynical public, important antidotes to the Nixon years. As Ford explained in his memoirs, during that first month in office he received "the kind of press coverage that every politician loves but almost never gets."1 Journalists used such descriptions for Ford and his presidency as "open and honest," "simple and candid," "fresh style," and "nothing fancy, nothing contrived, nothing concealed."2 Ford Counsellor Robert Hartmann told me:

During the first part of his presidency there was a national euphoria, a honey moon that the press helped to create, all stemming in part from the fact that

121


122 PRESIDENTIAL STUDIES QUARTERLY

Ford was not Nixon and that he was a much more likeable personality meriting sympathy and support because of the difficult position he found himself in.3

And Ford Assistant Press Secretary Larry Speakes explained to me that "it was Ford's personality ?from toasting his own English muffins to this good guy, boy scout, eagle scout image ?that carried him for the first thirty days. And, of course, there was the end to turmoil and the calmness of his demeanor."4

The unconditional pardon of Richard M. Nixon undermined Ford's carefully orchestrated image as a politician "indebted to no man" and his reserve of public goodwill. On Sunday morning, September 8, 1974, President Ford issued his pardon proclamation, declaring that Richard M. Nixon could not obtain a fair trial until considerable time had lapsed. Ford explained that the national "tranquility" would be unduly disrupted by "bringing to trial a former President of the United States."5 Ford never prepared the public for the possibility of a pardon for Nixon. The Deputy Press Secretary John W. Hushen remarked that Ford instead "delivered it to the country like Pearl Harbor."6

The public responded to the pardon swiftly, negatively, and severely. Within one hour of the announcement, phone calls running eight to one against the pardon inundated the White House switchboards.7 The Gallup poll reflected a sixteen point decline (from 66 to 50 percent) in the president's public approval rating after the pardon announcement.8 Ford's respected press secretary, Jerald F. terHorst, resigned in protest. In a political biography of President Ford, terHorst later recalled the public reaction to the pardon:

What [Ford] had portrayed as an act of mercy for a broken man was bitterly attacked as a betrayal of justice, even as a "deal" secretly arranged in advance with Nixon. Newspapers, network commentators, and private citizens from coast to coast expressed their outrage and dismay. Instead of encouraging the healing process as he had hoped, Ford had reopened the Watergate wound and rubbed salt into the public nerve ends thus exposed.9

A good example of the severity of the press response comes from The New York Times's reaction. Between September 9 and 12 the Times ran five editorials denouncing the pardon.10 The Times referred to the pardon as a "blundering interven tion," "an inappropriate and premature" act that "affronted the Constitution and the American system of justice," and that was "profoundly unwise, divisive and unjust" as well as "unconscionable."

Critics of the pardon questioned the president's judgment. Political analysts assessed that Ford had displayed insensitivity to the public's heightened cynicism about government and had ruined four weeks of progress toward healing the nation of such cynicism. After discussing with me the enormous successes that Ford had those first days in office, Assistant Press Secretary J. William Roberts added:

A month later came the pardon and it's back to Nixon. Even though we were different, from the press standpoint there was some kind of deal and they just didn't like it. Boy, did we have a brutal time.11


FORD'S PARDON OF RICHARD M. NIXON | 123

Opposition to the pardon steamrolled into something more serious than political controversy, popularity poll declines, and hostile press commentary: challenges to the President's constitutional authority to do what he did. The focus of this paper is on the issue of the pardon's constitutionality. A number of well-known critics, such as I. F. Stone, and renowned legal scholars, such as Philip Kurland, contended that Ford had issued an unconstitutional pardon to Nixon. Their constitutional arguments need to be addressed seriously because, to many legal analysts, the issue of the scope of the President's pardoning power remains unresolved. Periodically, such as during the trials of John Poindexter and Oliver North, the issue receives attention in legal and public discourse. A critical examination of the Ford pardon of Nixon helps illuminate this issue.

The plan of this paper is to examine the constitutional criticisms of the pardon, to critique these arguments, and to conclude appropriately with a review of the constitutional framers' intentions as a way of developing a normative assessment of how to resolve controversies over the president's pardoning power.

Criticisms of Ford's Pardon of Richard M. Nixon

A. The Pardon's Timing Was Improper A number of critics protested that President Ford had no right to issue

a pre-trial pardon for Richard M. Nixon. According to Professor Philip B. Kurland:

A pardon is intended to relieve a person of liability from punishment, to moderate the harshness of the criminal justice system. But that assumes the system has worked. There is no authority to anticipate the possibility that criminal charges might sometime be brought.12

According to Edwin Brown Firmage and R. Collin Mangrum, the constitu tional framers never intended the president to use his pardoning power in Article II, section 2 of the Constitution prior to conviction. Firmage and Mangrum reason that, because the acceptance of a pardon is an explicit admission of guilt, "the pardon should logically follow, not precede, formal adjudication of offenses."13

Firmage and Mangrum find support for their argument in Madison's recollec tions of the Constitutional Convention debates. During those debates Luther Martin

moved to amend Article II, section 2 so that "reprieves and pardons" could only be issued "after conviction." He withdrew this motion after James Wilson's persuasive argument that "pardon before conviction might be necessary in order to obtain the testimony of accomplices." Firmage and Mangrum conclude that, although the

Convention failed to restrict pardons to only the post-conviction stage, the framers adopted a "narrow view" regarding cases in which a pre-conviction pardon would be allowed:

That narrow view clearly did not extend to the case where the pardon power is used to prevent a thorough investigation and a final determination of the guilt or innocence of public officials charged with illegal misconduct in office.14


124 PRESIDENTIAL STUDIES QUARTERLY

B. Ford's Pardon of Richard M. Nixon Violated the Impeachment Exception of Article II, Section 2 Article II, section 2 makes clear that the president's pardoning power is

restricted "in Cases of Impeachment."15 According to Firmage and Mangrum, the constitutional framers therefore "intended to except from the presidential pardon power those cases involving public misconduct rising to the level of impeachable offenses . . ."16 Firmage and Mangrum quote Justice Joseph Story to substantiate their view that Ford's pardon of Richard M. Nixon was invalid for having obstructed the impeachment process:

... it is of great consequence, that the President should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment if they should deserve it. The Constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favorites, or dependents in high offices screen them from punishment.17

Firmage and Mangrum contend that the framers included the impeachment exception to foreclose the possibility of a presidential obstruction of congressional investigations into charges of misconduct by public officials. In their view, Ford's assessment that public disgrace and forfeiture of office by Nixon were sufficient punishment fails to recognize that the framers separated the impeachment and criminal processes. As precedent, they conclude, Ford's pardon of Nixon could nullify the Constitutional clause that an impeached official "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."18

I. F. Stone also argued that the framers assured that the pardoning power could not interfere with possible convictions for impeachable offenses. In Stone's view, Nixon had committed impeachable offenses, thereby rendering invalid a presidential pardon protecting the former president from impeachment proceedings.19

C. Ford's Pardon Proclamation Was Too Vague Some constitutional theorists believe that Ford's pardon of Richard M.

Nixon was illegitimate for failure to specify the crimes for which the pardon was granted. Taking their cues from English history, the American framers fashioned the presidential pardoning power after the pardoning power of the British Crown. The English common law required the king, under certain circumstances, to specify the crimes for which he granted a pardon. This requirement protected the king from being misled into granting a pardon for offenses of which he was unaware.

President Ford's September 8, 1974, pardon proclamation granted full clemency to Richard M. Nixon "for all offenses against the United States which he, Richard

Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974."20 To many critics, this statement not only failed to cite specific offenses, it implied that Nixon may not have done anything illegal. Nixon's statement in response to the pardon compounded the criticisms of Ford for failing to specify Nixon's crimes. In his official statement,



Nixon only pleaded guilty to "not acting more decisively and more forthrightly in dealing with Watergate. . . ."21 Nixon had thereby portrayed his failings in "dealing with Watergate" as political and managerial, but not legal.

For some critics, Ford's vague pardon proclamation and Nixon's failure to admit criminal wrongdoing made the pardon invalid. In this view, Ford was never fully apprised of Nixon's alleged crimes and therefore could not know for what offenses he was pardoning Nixon. The fact that Nixon had tried to suppress evidence of his own actions during Watergate clearly indicated that Ford could not have known about all of the offenses for which he pardoned Nixon.22

D. The Pardon Violated the Special Prosecutor Regulations The federal regulations establishing a special prosecutor provided the spe

cial prosecutor with "full authority for investigating . . . allegations involving the President" as well as full authority for "deciding whether or not to prosecute any individual, firm, corporation or group of individuals."23 Some constitutional theorists believe that Ford's pardon of Richard M. Nixon was an illegitimate interference with the powers of the special prosecutor. According to the Special Prosecutor Charter:

In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given. . . . The jurisdiction of the Special Prosecutor will not be limited without the President's first consulting with such Members of Congress and ascertaining that their consensus is in accord with his proposed action.24

Hugh Macgill argues that Ford's pardon of Richard M. Nixon was undoubtedly an exercise of the president's "constitutional powers" and had denied Special Prose cutor Leon Jaworski the opportunity to investigate Nixon's alleged public miscon duct. Macgill assesses that it would be "difficult to imagine a more effective limitation of or interference with the Special Prosecutor's independent jurisdiction."25 Leonard Boudin corroborates this view:

The Charter fairly read precluded the President from pardoning persons under investigation ?at least until after they had been convicted and the facts thereby brought to light ?just as it precluded President Nixon (or the Attorney General) from dismissing the Special Prosecutor.26

The Charter empowered the Special Prosecutor to decide if there existed any need to apply "for a grant of immunity to any witness," or to "prosecute any individual, firm, corporation or group of individuals."27 According to Boudin: "These provisions support an inference that the President had thereby agreed not to utilize his pardoning power in a way that would interfere with the exercise of these functions

by the Special Prosecutor."28


126 j PRESIDENTIAL STUDIES QUARTERLY

The Arguments in Defense of the Pardon The above arguments reveal that a number of respected critics found

President Ford's pardon of Richard M. Nixon constitutionally suspect. In what follows I examine the historical and constitutional problems with these arguments and demonstrate that the weight of evidence is in favor of the pardon of Richard

M. Nixon as constitutionally proper.

A. The Issue of Timing The argument that a pardon can only be issued after conviction cannot

withstand serious scrutiny. Regarding the pardon power, the English common law influenced the thinking of American framers. The American colonies under the King continued the practices of the English tradition regarding pardons. Sir Edward Coke articulated the English tradition regarding the pardon power: "A pardon is a work of mercy, whereby the king either before attainder, sentence, or conviction, or after, forgivith any crime, offense, punishment, execution, right, title, debt or duty, temporal or ecclesiastical."29 Sir William Blackstone wrote that "a pardon may be either pleaded upon arraignment, or in arrest of judgment, or ... in bar of execution."30 In the Commentaries Blackstone referred to the magistrate's "power to extend mercy wherever he thinks it is deserved" as "one of the great advantages of monarchy in general." Blackstone warned that "in democracies . . . this power of pardon can never subsist, for there nothing higher is acknowledged than the magistrate who administers the laws."31 Edward S. Corwin explained that "[i]n the very face of this warning" the constitutional framers proceeded to establish the presidential authority to issue pardons.32 In the important 1833 case United States v. Wilson the Attorney General Roger B. Taney based his arguments on British authorities. And the Chief Justice John Marshall iterated that a proper interpretation of the Constitution's "reprieves and pardons" clause is derived from British practice:

As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.33

According to Firmage and Mangrum's interpretation of Article II, section 2 of the Constitution, the mere effort to introduce a delimiting amendment to the pardoning power at the Constitutional Convention signified the framers' intention to place narrow restrictions on the issuance of pardons. Yet the very rejection of Luther Martin's motion to restrict the issuance of pardons to the post-conviction stage evidenced the framers' desire to keep the presidential pardon power broad and encumbered by few restrictions. Had the framers intended to restrict the use of pardons to convictions, Article II, section 2 would probably have referred to "convic tions for offenses" as opposed to mere "offenses." Neither in the English tradition nor American constitutional history can there be recognized an accepted legal doctrine strictly constraining the Executive's exercise of the pardon power to the post conviction stage.



For example, several court decisions defend the president's right to issue pardons prior to legal proceedings. In Ex parte Garland the Supreme Court concluded that the pardon "extends to every offense known to law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. . . . If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching. . . ."34 Corroborating this decision is Chief Justice William H. Taft's opinion in Ex parte Grossman:

The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial, or after trial, by individuals or by classes, conditionally or absolutely, and this without modification or regulation by Congress.35

Additionally, there is the Court's opinion in Brown v. Walker that the pardon "is ordinarily exercised only in cases of individuals after conviction."36 While on the face of it, this opinion appears to support a post-conviction limitation on pardons, it also recognizes that in extraordinary cases exceptions to that limitation will be

made. Critics of Ford's pardon of Richard M. Nixon point to the federal regulations

handling petitions for pardon in the Office of the Pardon Attorney, Department of Justice.37 Yet these regulations did not strictly limit Ford's pardon of Richard M. Nixon. A formal petition for pardon is necessary to confer recognition by the president on non-public persons. Richard M. Nixon did not need to issue a formal petition for pardon through the Office of the Pardon Attorney to attain President Ford's recognition. Although the pre-conviction nature of Ford's pardon of Richard M. Nixon was "a relative anomaly," Hugh Macgill concedes that "more than that would have to be shown in order to say that it is void."38 Macgill concludes:

Itls agreed that an offense must have been committed before it can be pardoned, but beyond that apparently common-sensical limitation there is no restriction at all on the timing of pardons.39

Many critics of the pardon pressured Special Prosecutor Leon Jaworski to contest the constitutionality of Ford's action. Jaworski concluded that the pardon was so clearly constitutional that any effort to test its validity would be frivolous and unprofessional. In a letter to Attorney General William Saxbe, Jaworski contended:

The provision in the Constitution investing the president with the right to grant pardons and the recognition by the United States Supreme Court that a pardon may be granted prior to the filing of charges are so clear, in my opinion, as not to admit to doubt. . . .40

B. The Impeachment Exception of Article II, Section 2 Perhaps the weakest argument against Ford's pardon of Richard M. Nixon

is that the pardon violated the Constitution's exception for "Cases of Impeachment." This argument assumes that the Constitution's restriction on pardons for "Cases of Impeachment" really means "impeachable offenses." It also assumes that such offenses


128 I PRESIDENTIAL STUDIES QUARTERLY

are clearly known and confirmed prior to any judicial proceedings. In other words, it assumes that Nixon was guilty under the law until proven innocent.

Richard M. Nixon's resignation, not President Ford's pardon of him, under mined the impeachment proceedings. The major outcome of any impeachment pro ceedings?removal from office ?had been achieved by Nixon's resignation. Con gress's power to impeach is a constitutional and political check built into the separation of powers system. Ford's pardon of Richard M. Nixon did not eliminate Congress's right to exercise its impeachment power. The pardon's effect was instead to block any criminal prosecutions against Nixon. Technically, if Congress had desired to continue the impeachment proceedings after the pardon to deny Nixon his presidential pension and entitlements, it could have done so, even though, properly speaking, such an outcome could not be described as "impeachment."

Firmage and Mangrum, recall, cited an opinion by Justice Story as evidence of their view that a presidential pardon cannot be used to obstruct congressional investigations into public misconduct.41 In their effort to disprove the validity of Ford's pardon of Richard M. Nixon, Firmage and Mangrum failed to include two essential sentences in Story's quotation. In Story's assessment, the framers intended the impeachment exception to "take from the President every temptation to abuse [the pardon power] in cases of political and official offenses by persons in the public service." Story added: "The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the President should not have the power of preventing a thorough investigation of their conduct. . . ."42 Since at the time of the pardon Richard M. Nixon was neither "in the public service" nor holding any high office, the Ford pardon cannot be characterized as having obstructed congressional investigations into the activities of a public official. Again, Congress had the option to continue its investigations into Nixon's presidential conduct and chose not to.

C. Ford's Vague Pardon Proclamation Ford's unconditional pardon of Richard M. Nixon failed to cite Nixon's

specific offenses. Some critics of Ford's action argued that for lack of such specificity the pardon was invalid.43 The English common law required the king, for certain crimes, to cite specific offenses for which a pardon was granted. According to Boudin: "If the king was misinformed as to any aspect of the crimes committed, the pardon might be void."44

The American framers did not appropriate this English common law practice. The Constitution's provision granting a presidential pardon power nowhere requires that the president explicitly specify the crimes for which a pardon is granted. There exists no precedent in American constitutional law requiring that when presidents issue pardons they must list the specific offenses committed. As Macgill argues:

If any president or governor has granted a pardon in terms which did not make clear the offenses pardoned the pardon's validity has not come to litigation. The point seems to be so generally assumed that it has not needed express reinforcement.45



Nonetheless, a pardon must have a particular form or designation. In Ex parte Wells the Court held that:

Such a thing as a pardon without a designation of its kind is not known in the law. Time out of mind, in the earliest books of the English law, every pardon has its particular denomination. They are general, special, or particular, conditional or absolute, statutory, not necessary in some cases, and in some grantable of course.46

American constitutional law also recognizes a distinction between full and unconditional pardons for offenses which are specified in the pardon statement pre amble, and general pardons. This distinction is made in Steuer's Case where the Court held that a full, unconditional pardon is valid only for the offense(s) cited in the preamble, and thereby does not constitute a general pardon for other offenses.47 President Ford issued to Nixon a general pardon, "full, free and absolute," covering Nixon's entire time in the office of the Presidency, "during the period from January 20, 1969 through August 9, 1974."

There were serious practical reasons for having issued a general pardon of Richard M. Nixon. By citing specific offenses Ford might have invited critics to conclude that anything left out of the pardon proclamation was thereby unprotected. It is possible that under such a scenario criminal charges for offenses not specified in the pardon proclamation would have been raised against Nixon. A pardon statement specifying Nixon's offenses possibly would have undermined President Ford's stated purposes in issuing the pardon ?ensuring that a former president not be brought to trial and sparing the nation a much prolonged Watergate crisis. Ford most likely realized the impossibility of specifying all of Nixon's offenses and making sure that none was left out. And the Stetler's Case recognized that the "effect of the [pardon statement] preamble reciting a single offense limits the general words of the grant or pardon."48

D. The Special Prosecutor Charter Ford's pardon of Richard M. Nixon allegedly violated the Special Prose

cutor Charter. Some legal scholars contend that this alleged violation rendered the pardon invalid.

Undoubtedly, Ford's pardon of Nixon undermined the special prosecutor's independence and investigations. That fact alone cannot justify the position that the Charter overrides the president's constitutional power to pardon. No statutory regulation or executive branch policy enacted under a congressional statute can nullify or override the president's constitutional authority. No president can agree to forfeit his right to exercise a constitutionally prescribed duty such as the power to pardon. As Special Prosecutor Leon Jaworski wrote to Attorney General William Saxbe:

I have also concluded, after thorough study, that there is nothing in the charter and guidelines appertaining to the Office of the Special Prosecutor that impairs or curtails the President's free exercise of the Constitutional rights of pardon. . . . [F]or me to procure an indictment of Richard M. Nixon for the sole



purpose of generating a purported court test on the legality of the pardon would constitute a spurious proceeding in which I had no faith; in fact, it would be tantamount to unprofessional conduct and violative of my responsibility as prosecutor and officer of the court. . . .49

Jaworski's opinion is particularly germane because he had participated in the sessions at which the special prosecutor legislation was formulated. He clearly under stood that the authors of the Special Prosecutor Charter did not intend in any way to circumvent or nullify the president's constitutional power to pardon.

And this opinion is supported by a number of key Supreme Court decisions. Consider the following:

Ex parte Garland: "This power of the President is not subject to legislative control. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."50

The Laura: "[The President's] constitutional power [to pardon] in these respects cannot be interrupted, abridged, or limited by any legislative enactment."51

Ex parte Grossman: "The Executive can reprieve or pardon all offenses . . . conditionally or absolutely, and this without modification or regulation by Congress."52

E. Could Nixon Have Received a Fair Trial?

From a constitutional standpoint President Ford's pardon of Richard M. Nixon was clearly justified. The more persuasive arguments against the pardon were political rather than constitutional. A convincing case can be made that from a political standpoint the pardon was ill-advised. The pardon significantly harmed Ford's public standing, relations with Congress, and the Republican party's fortunes in the 1974 elections.

Undoubtedly Ford had realized some of the political ramifications of such a controversial action. Yet another consideration weighed on his mind?whether or not Richard M. Nixon could receive a fair trial after all of the publicity surrounding

Watergate. Ford correctly concluded that given the political context and public nature of the case, Nixon could not have received a fair trial for quite some time.

Opposed to the view that Nixon was entitled to a pardon because he could not receive a fair trial was the argument that no person, not even a former president, is "above the law" and deserving of special treatment. As Firmage and Mangrum assert: "... our democratic system of justice demands that the law be applied to all persons equally and that public officials not be permitted to violate the laws with impunity."53

It must be emphasized that a former president can never be equal to all other citizens in a very important sense: as the nation's highest office-holder he made many highly visible decisions that affected the welfare of millions. In the case of such a visible national leader it is doubtful that public opinions and passions about

matters partisan and political would not influence the legal process and eventually the determinations of innocence, guilt, and punishment. The case for a pardon for



Nixon on the basis that he could not receive a fair trial is especially compelling. The publicity surrounding Nixon's role in Watergate was extraordinary. As Leon Jaworski asserted, Nixon deserved to be considered "innocent in the eyes of the law until proven guilty according to judicial process." Recalling the events surrounding

Watergate, Jaworski concluded that Nixon could not have received a fair trial:

The House Judiciary Committee sitting in inquiry on impeachment began its hearing with many of the sessions publicized?not only in the press but on live television and radio as well. Wide coverage was given the proof that indicated Nixon's involvement. ... To cap the climax, when the tape recording of June 23, 1973, was made public, numerous Republican members of the House impeachment inquiry committee, who had previously defended Nixon, went on live television, not only to say that they were changing their vote but also flatly to state that they had concluded Nixon was guilty of obstruction of justice. . . . When Nixon resigned, the nation was told from shore to shore that in a move to avoid certain impeachment, the President gave up his office. The columns and the airways were filled with inculpatory comments regarding Nixon's guilt, ignominy and disgrace, and of its historically unprecedented nature. . . . Surveys indicated that an estimated 92,000,000 persons viewed the televising of the Judiciary Committee proceedings. Typical of editorial comments was the observation that President Nixon had for all practical pur poses admitted criminal wrongdoing. The damaging tape records spoke for themselves.54

Given this scenario, it is highly unlikely that any jury judging Nixon could have maintained strict impartiality. All of the pre-trial publicity surrounding Watergate guaranteed that prospective jurors would have prejudged Nixon's case prior to any trial. Luis Kutner argues that such a trial would have violated the former president's constitutional guarantees of a fair trial found in the sixth amendment, and the due process clauses of the fifth and fourteenth amendments.55 For this reason, Kutner

concludes, Ford's pardon of Nixon was "charitable, wise and just."56 This view is corroborated by Jaworski's analysis:

The Sixth Amendment guarantees a defendant trial by jury, a guarantee that has consistently been held to mean that each juror impaneled ?in the often quoted language of Lord Coke?will be "indifferent as he stands unsworn." The very nature of the Watergate events and the massive public discussion of Mr. Nixon's relationship to them have made it impossible to find any array of jurymen who can meet the Sixth Amendment standard.57

None of this resolves the controversy over whether a pardon for Nixon was fair to the other Watergate co-defendants who did not receive any form of clemency. Professor Daniel L. Ostrander asked two Watergate figures, Jeb Stuart Magruder and Bob Haldeman, whether they felt unfairly treated. Magruder replied that "in the context of the situation the pardon was appropriate" and Haldeman had "no problem with the pardon" and called it "the right thing to do." Ostrander reports


132 j PRESIDENTIAL STUDIES QUARTERLY

that Haldeman distinguished bringing a former president to trial from bringing a former presidential aide to trial and concluded that the effects of the former on the national welfare would have been too severe.58 In other words, Ford pardoned Nixon in part to protect the national interest. In Ford's view the national interest required sparing the country a trial of its former president, but not of the former president's advisers. For that reason, no other Watergate co-defendant could raise properly an equal protection claim. A pardon, as opposed to amnesty, generally is granted to a single person for some compelling reason ?for example, mercy, or, the national interest. Nobody has a "right" to be pardoned, so the granting of a pardon to one conspirator but not to others violates no constitutional principles. The decision is purely a matter of presidential discretion alone.

The issue of judicial fairness to Nixon also differs from the question of whether the country would have benefited from learning more about Watergate through a trial of the former president. Critics of the pardon often contend that Ford's action prevented the whole record of Watergate and the Nixon presidency from ever being known. Actually, the protection of a pardon provided Nixon with immunity from federal criminal prosecution. According to judicial precedent, Nixon could not have refused to testify at Watergate trials by invoking the Fifth Amendment right against self-recrimination. The protection of a pardon is the same as the safeguard provided by the Fifth Amendment.59 Therefore, the pardon provided a better opportunity to learn the full story of Watergate. What happened? Nixon became ill, could not testify at John Ehrlichman's trial, and Judge John Sirica decided to proceed rather than wait for the former president possibly to recover. Archibald Cox told Professor

Ostrander that "it was not Sirica's job to hold a public hearing on Watergate, but only to determine the relevance of Nixon's testimony to Ehrlichman's case."60

Conclusion: Presidential Pardons and the Separation of Powers Some critics of Ford's pardon of Richard M. Nixon sought constitutional

remedies to ensure that no such presidential action would go unchecked again. In John D. Feerick's assessment, there is a need to establish "acceptable guidelines for [the pardon's] exercise in our system of justice."61

In 1974 Senator William Proxmire offered a congressional resolution limiting the president's pardoning power to only the post-conviction stage. The resolution failed. Even if it had passed, the resolution eventually would have faced a test of its constitutionality. In the case Schick v. Reed, the Supreme Court held that the presidential pardoning power "flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged or diminished by the Congress."62 In Murphy v. Ford, the only case regarding the constitutionality of the Nixon pardon, a federal district court in Michigan held that the "Constitutional power of the President to grant reprieves and pardons for offenses against the United States is unlimited."63 The Michigan court also concluded that Ford "was acting in accord with the letter and spirit of his constitutional power to grant pardons, since he was taking steps to restore the tranquility of the commonwealth by a well-timed offer of pardon."64



Senator Walter F. M?ndale proposed a constitutional amendment in 1974 to resolve the pardon controversy:

No pardon granted an individual by the President under Section 2 of Article II shall be effective if Congress by resolution, two-thirds of the members of each House concurring therein, disapproves the granting of the pardon within 180 days of its issuance.65

William F. Duker believes that Mondale's proposed amendment is the "optimal solution" to the pardon controversy.66 Yet is is doubtful that any constitutional or statutory remedy to the pardon controversy is necessary, proper, or desirable. The separation of powers system ?properly understood ?provides all of the necessary checks against potential abuses of the pardoning power. Congress has numerous means at its disposal to make the president think carefully about issuing a controversial pardon. The president may have to weigh the desirability of a controversial pardon against the prospects for legislative stalemate and possible suspension of funding for administration favored programs. Congress's ultimate means to combat a perceived presidential abuse of the pardon power is to resort to the impeachment process. In the unusual case of a president continuously resorting to the pardon power to subvert the judicial process, Chief Justice Taft argued:

Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than a narrow and strained construction of the general powers of the President.67

As Taft noted, such a scenario is nearly unimaginable. It would be foolhardy to place unusual constraints on the president's ability to carry out his constitutional

duties simply because some day a president may not exercise such duties properly. Any power granted can be used for good or ill purposes. That reality alone cannot justify the placing of severe impediments on the president's ability to do his job.

The framers recognized the necessity of providing the president with a nearly absolute pardon power. They understood that if the pardon power was to be at all effective, the president must have the discretion to exercise that power as he believed

necessary. Alexander Hamilton's Federalist 74 provides the clearest expression of the framers' view of the pardoning power. Hamilton wrote that "the benign prerogative of pardoning should be as little as possible fettered or embarrassed. ... As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred

that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law. . . ." Hamilton added:

... as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men. ... It is not to be doubted



that a single man of prudence and good sense is better fitted, in delicate conjunc tures, to balance the motives which may plead for and against the remission of the punishment than any numerous body whatever.

A constitutional amendment limiting the president's pardoning power with any additional legislative check would defeat the purpose of the framers having given the president large discretionary authority to pardon in the first place. The pardon is primarily an act of mercy and must therefore be left in the hands of one person and not in the hands of a large deliberative assembly where many representatives

will be influenced by temporary partisan passions. Only one person ?the president ? should be responsible for weighing the needs of justice and the national interest against the partisan passions of the day, and make the final determination as to the proper course of action. The president, as the one elected representative of all the people, is more likely than the legislature to weigh in favor of the national interest over temporary partisan passions or demands for vengeance. His ultimate decision ? like President Ford's ?may be unpopular and a constitutional remedy may not be immediately available to opponents of the decision. Yet, for such opponents plenty of remedies exist. The most important remedy?and the one that President Ford experienced ?is the resulting public reaction at the voting booth. For Republicans, the 1974 elections were disastrous. That year Democrats gained forty-nine House seats and five seats in the Senate. It is also highly likely that the very close 1976 presidential election results would have favored President Ford had he not pardoned Richard M. Nixon. Ford undoubtedly realized the political risks he incurred by issuing the pardon, but he also believed that the action was correct. The pardon of

Richard M. Nixon failed to put Watergate immediately behind us, and it harmed President Ford's efforts to heal the nation of its cynicism toward political Washington,

but from a legal standpoint, and from the standpoint of serving justice, his decision was justified.68

* This essay is based on a paper presented at the Seventh Presidential Conference, "Gerald Ford: Restoring the Presidency," Hofstra University Cultural Center, Hempstead, New York, April 8, 1989.

Notes 1. Gerald R. Ford, A Time to Heal (Norwalk, Connecticut: Easton Press, 1987), p. 178. 2. See Mark J. Rozell, The Press and the Ford Presidency (Ann Arbor: University of Michigan Press,

1992), chapter 3. 3. Author interview with Robert Hartmann (Bethesda, Maryland), December 15, 1989. 4. Author interview with Larry Speakes (by telephone), February 6, 1990. 5. Quoted in John D. Feerick, "The Pardoning Power of Article II of the Constitution!," 47 New

York State Bar Journal (January 1975), p. 8. 6. Author interview with John W. Hushen (Washington, D.C), May 14, 1990. 7. Jerald F. terHorst, Gerald Ford and the Future of the Presidency (New York: Joseph Okpaku Pub.

Co., 1974), pp. 232-233. 8. The New York Times, October 13, 1974, p. 1. 9. terHorst, p. 232.

10. "The Failure of Mr. Ford," The New York Times, September 9, 1974, p. 34; "Pardon for What?" The New York Times, September 10, 1974, p. 40; "Nightmare Compounded" and "Growing



Dossier," The New York Times, September 11, 1974, p. 44; and "Back to Politics," The New York Times, September 12, 1974, p. 38.

11. Author interview with J. William Roberts (Falls Church, Virginia), November 27, 1990. The Press Secretary Jerald terHorst similarly commented: "A brief speech on a Sunday morning, when people are going to church ?the whole thing had so many downsides to it that it was no surprise to me that the country reacted as though someone had just torn the scab off of Watergate. That put us right back into the mess again." [Author interview with Jerald F. terHorst (Washington, D.C), June 27, 1990.]

12. Quoted in Comment, "On Executive Clemency: The Pardon of Richard M. Nixon," 2 Pepperdine Law Review (1975), p. 360.

13. Edwin Brown Firmage and R. Collin Mangrum, "Removal of the President: Resignation and the Procedural Law of Impeachment," 6 Duke Law Journal (1974), p. 1099.

14. Ibid. 15. U.S. Constitution, Article II, section 2, clause 1.

16. Firmage and Mangrum, p. 1095. 17. Ibid., p. 1097. 18. US. Constitution, Article I, section 3, clause 7; Firmage and Mangrum, p. 1100. 19. I. F. Stone, "On Pardons and Testimony," The New York Times, October 9, 1974, p. 43; see

also I. F. Stone, "Mr. Ford's Deceptions," 21 New York Review of Books (November 14, 1974), pp. 3ff.

20. Quoted in Feerick, p. 8. 21. Quoted in Leon Jaworski, The Right and the Power (New York: Pocket Books, 1977), p. 298. 22. Comment, "On Executive Clemency: The Pardon of Richard M. Nixon," p. 366. 23. 38 Fed. Reg. 30738-30739 (1973). 24. 38 Fed. Reg. 32805 (1973). 25. Hugh Macgill, "The Nixon Pardon: Limits on the Benign Prerogative," 7 Connecticut Law Review

(Fall 1974), p. 88. 26. Leonard B. Boudin, "The Presidential Pardons of James F. Hoffa and Richard M. Nixon: Have

the Limitations on the Pardon Power Been Exceeded?" 48 University of Colorado Law Review (Fall 1976), p. 37.

27. 38 Fed. Reg. 30739 (1973). 28. Boudin, p. 37n. 29. Quoted in S. Elizabeth Gibson, "Presidential Pardons and the Common Law," 53 North Carolina

Law Review (April 1975), p. 788; see also Feerick, p. 7:

At the common law the king possessed and exercised the power to pardon offenses against the Crown both before and after indictment and conviction. He could grant pardons uncondi tionally or conditionally, based on the performance of some condition precedents or subsequent. This power of the Crown was designed to allow for the dispensation of mercy in cases where it was deserved.

30. Quoted in Macgill, p. 65. 31. Quoted in Edward S. Corwin, The President: Office and Powers, 1787-1957 (New York: New

York University Press, 1957), pp. 158-159. 32. Ibid., p. 159. 33. 7 Pet. 150, 160 (1833). See also Ex parte Wells, 18 How. 307, 310-311 (1855). 34. 4 Wall. 333, 380 (1867) 35. 267 U.S. 87 (1925). 36. 161 U.S. 591, 601 (1896); see also In re Greathouse, 10 F. Cas. 1057, 1060 (C.C.N.D. Cal,

1864):

[It is] of slight importance, whether the guilt of the offender be judicially ascertained or not, provided the executive is fully apprised of the nature of the offense pardoned; for the pardon goes upon the presumption that the offender, if not already convicted, will be; else he would



not need to plead his pardon to the indictment, but would be saved under his plea of not guilty.

37. Macgill, p. 71. 38. Ibid., p. 72. 39. Ibid., p. 74. This view is also confirmed by Boudin, pp. 34-35:

Although the pre-conviction character of the Nixon pardon has been criticized, there is no real question as to the validity of even a pre-indictment pardon. . . . Several Supreme Court opinions have at least implicitly approved pre-indictment pardons. While the federal regulations governing grants of clemency seem to conceive of the exercise of that power after conviction, and while most pardons have followed conviction, there have been exceptions.

40. Jaworski, p. 299. 41. Firmage and Mangrum, p. 1097. 42. Quoted in Boudin, p. 6n. 43. See Boudin, p. 35; Macgill, pp. 83-85; and William F. Duker, "The President's Power to

Pardon," 18 William and Mary Law Review (Spring 1977), p. 533. 44. Boudin, p. 35. 45. Macgill, p. 83. 46. 18 How. 307, 310 (1855). 47. 22 Fed. Cas. (Cas. No. 13, 380, 1852). 48. Ibid. 49. Jaworski, p. 299. 50. 4 Wall. 333, 380 (1867). 51. 114 U.S. 411, 414 (1885). 52. 267 U.S. 87, 120 (1924). See also United States v. Klein, 13 Wall. 128 (1872); Knote v. United

States, 95 U.S. 149 (1877); Schick v. Reed, 419 U.S. 256 (1974); Murphy v. Ford, 390 F. Supp. 1372 (1975).

53. Firmage and Mangrum, p. 1100. 54. Leon Jaworski, "The Most Lustrous Branch: Watergate and the Judiciary," 45 Fordham Law

Review (May 1977), pp. 1272-1273. 55. Louis Kutner, "A Legal Note on the Nixon Pardon: Equal Justice Vis-?-Vis Due Process," 9

Akron Law Review (1975), p. 244. Kutner quotes Justice Black on this point: "[OJur system of law has always endeavored to prevent even the probability of unfairness. ..." [In re Murchison, 349 U.S. 133, 136 (1954).]

56. Ibid., p. 243. Not every legal scholar offered such a restrained assessment. According to Boudin (p. 39):

. . . the country has been left with a situation in which a President guilty of high crimes and misdemeanors, which have seriously threatened democratic government, avoids impeachment and criminal sanctions; and he retires with pension benefits and other emoluments of former office, while his subordinates are prosecuted and convicted. This was more than an abuse of the pardon power ?it cast discredit upon the administration of justice in the United States.

57. Jaworski, The Right and the Power, pp. 281-282. See also Sheppard v. Maxwell, 384 U.S. 333 (1966); and Irvin v. Dowd, 366 U.S. 717 (1961).

58. Daniel L. Ostrander, "The Pardoning of Richard Nixon," unpublished manuscript, p. 7. 59. Burdick v. United States, 236 U.S. 79 (1915); Murphy v. Waterfront Commission, 378 U.S. 52

(1964); Malloy v. Hogan, 378 U.S. 1 (1964). 60. Ostrander, p. 13. 61. Feerick, p. 44. 62. 419 U.S. 256, 266 (1974). 63. 390 F. Supp. 1372 (1975). 64. Ibid. 65. Cited in Duker, p. 537.



66. Ibid. 67. Ex parte Grossman, 267 U.S. 87, 121 (1925). Boudin writes (p. 8):

In this sense, the pardon power is not absolute. Its exercise is balanced by the impeachment clause. In this manner, Congress has ultimate authority over the conduct of all executive officers, including the President.

68. Ford's purposes in issuing the pardon are clear: reasons of state (i.e., he could not effectively govern the nation while burdened by Watergate-related controversies), judicial fairness (i.e., Nixon's likely inability to receive a fair trial until considerable time had lapsed), compassion for Nixon and his family (the former president had become very ill). Ford did not personally conduct a thorough examination of judicial precedent for a pre-conviction pardon. He did assign that duty to his long-time friend and legal counsel, Phil Buchen, who reported for the record in a hand-written note: "No formal written opinion was provided to the President, but I reviewed for him the legal precedents, including a comprehensive review of court decisions and examples of pardons under the U.S. Constitution which had been prepared by Solicitor General William H. Taft in 1892 (although this dealt with class pardons before indictment or conviction). Principal decisions reported on to him were Ex parte A. H. Garland, 71 U.S. 366 (1807) and Burdick v. U.S., 236 U.S. 79 (1915). The latter involved an individual pardon before indictment. Numerous other Court decisions were checked but not reported to the President. I did point out that under certain state constitutions, the pardon power could be exercised only after conviction, but that was because of an express limitation which is absent from the U.S. Constitution." [Legal Authorities on Pardon Power Cited to the President. Folder: "Nixon Pardon ? Hungate Subcommittee Hearing, September 24, 1974," Box 34, Buchen Papers, Gerald R. Ford Library.]


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