Constitution Daily

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The Nixon pardon in constitutional retrospect

September 8, 2018 by NCC Staff

 

President Gerald Ford’s pardon of Richard Nixon 44 years ago today generated a national controversy, but in recent years, some of the pardon’s biggest critics have changed their tunes on the unprecedented move.

fordinfrontofhouseWatergate reporters Carl Bernstein and Bob Woodward had vehemently opposed the pardon after Ford went on national television on September 8, 1974, to announce it. But in recent years, the former Washington Post journalists have approved of Ford’s move to absolve Nixon of any criminal charges related to the Watergate break-in and its cover-up.

In a July 2014 panel hosted by the Post, Woodward called the pardon “an act of courage.” He had talked with Ford decades after the pardon and said the former President made a “very compelling argument” for his actions based on national security and economic needs. At the same event, Bernstein said the pardon took “great courage,” echoing public comments he made in 2011 on a TV show.

The late Senator Ted Kennedy said in 2001 that while he initially opposed the pardon, he had come to accept it as the best move for the country. And Richard Ben-Veniste, a former Watergate prosecutor and a Democrat, wrote about the pardon shortly after Ford’s passing in 2006.

“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,” Ben-Veniste said in a commentary for the Post.

“The decision to pardon Nixon was a political judgment properly within the bounds of Ford's constitutional authority,” he argued. “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.”

But in the months after the pardon back in 1974, most Americans didn’t approve of Ford’s move. In a Gallup poll taken 43 years ago, 53 percent of those polled disapproved of the pardon. However, in a 1986 Gallup poll, 54 percent of Americans said they now approved of the presidential pardon.

Ford appeared in front of a House judiciary committee in October 1974 to explain the pardon.

“I was absolutely convinced then as I am now that if we had had [an] indictment, a trial, a conviction, and anything else that transpired after this that the attention of the President, the Congress and the American people would have been diverted from the problems that we have to solve. And that was the principle reason for my granting of the pardon,” he told Representative Elizabeth Holtzman.

At a 2014 panel discussion, Ford’s lawyer during that period, Benton Becker, explained another part of the President’s motivation was a 1915 Supreme Court decision, Burdick v. United States, which implied Nixon accepted his guilt in the Watergate controversy by also accepting the pardon.

The Court’s ruling in Burdick was that a pardon carried an "imputation of guilt" and accepting a pardon was "an admission of guilt.” Becker said he took copies of the Burdick decision to California when he met with former President Nixon, and under Ford’s instructions, he walked through the Burdick decision with Nixon.

Becker said the discussion with Nixon was very difficult, and the former President kept trying to change the subject way from Burdick until he acknowledged Becker’s discussion about what the Supreme Court decision meant.

After he left the White House, Ford carried part of the Burdick decision with him in his wallet in case someone brought up the pardon. In a later interview with Woodward for Caroline Kennedy’s book, “Profiles in Courage for Our Time,” Ford pulled out the dog-eared decision and read the key parts of it to Woodward.

 

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