Playing Politics With Justice
Gerald Ford hands Richard Nixon his get-out-of-jail free card.
The promising beginnings of the Ford Presidency became a quick casualty of his incomprehensible decision to grant his predecessor and benefactor a complete pardon from not only the consequences of any criminal conduct during the Nixon Presidency but even from the judicial process that would determine the nature and precise existence of that criminal conduct. And it is not only President Ford who will suffer the adverse reaction that ensued; a nation that had just begun to climb out of the shadows and the darkness of the Nixon years is now again plunged into the abyss of Watergate.
Ford's credibility is the prime casualty of that Sunday morning decision. The sensible restraint he had announced on August 28 as to the way in which he would approach the question of a Nixon pardon was rejected just eleven days later. His earlier position had seemed eminently fair and reasonable. He would await the completion of the judicial process and would then determine whether the act of mercy and compassion flat is embodied in a Presidential pardon would be warranted. Few would have found fault with that restrained approach. And few would have protested such mercy and compassion when the full extent of Richard Nixon's criminal conduct had been judicially defined and recorded. But the granting of the pardon prior to a beginning, let alone a completion, of the judicial process simply has to be considered an act of inequity and of injustice.
The consequences of that untimely act are many and devastating, both as to the nation's unity and the Ford Administration's stability. One of the purported reasons for the pardon, to end the divisiveness that further attention to Watergate would assure, not only will not be achieved; indeed, the precise opposite has occurred. The anger and outrage from the people was immediate and vehement. They perceived the act of pardon as being unworthy in two aspects. First, it was widely viewed as setting forth a different standard of accountability to the law for Presidents than for persons of lesser stature. Second, it was seen by many as representing a further cover-up of the former President's role in Watergate, and was widely considered to have been part of a deal between Ford and Nixon.
So, the cover has not been closed on the book of Watergate by Ford's Sunday morning pardon. It is true, the book has never been closed, but following the House Judiciary Committee's impeachment recommendation and the resulting resignation of Nixon, the tumultuous chapters of the Watergate book had been losing their emotional hold on the American public. As the judicial process continued both in the Watergate trials of the lesser conspirators and in the probable trial of Richard Nixon, the attention of the nation could not have been fully distracted from Watergate for some time to come, but it would have been a more detached interest than will now be the case. That interest, in the absence of the controversial pardon, would have been tempered by the belief that the judicial process was proceeding without interference and that Richard Nixon's accountability, would eventually be determined and understood.
Such knowledge and confidence have now been shattered. The interest of the pubic has been replaced by its anger. Far from causing divisiveness to subside, President Ford has caused a renewal of passions that in fact had begun to subside; the unity he claimed to have sought by his act is now further from attainment than it has been since the resignation of Nixon.
The other immediate casualty of this astonishing decision is the stability of the Ford Presidency. Few if any Presidents have succeeded to the office when it was in a state of greater chaos than was the Nixon Presidency when Ford assumed that burden and that opportunity. For the first thirty days it appeared that few new succeeding Presidents had ever moved with the sureness, the poise, the grace and the confidence of Gerald Ford. He seemed to be precisely the man for whom we all desperately yearned after the years of despair under Nixon. People warmed to Jerry Ford. They gave him their affection and their confidence. He had a basis of trust on which he could have relied in meeting the desperate domestic problems of this nation.
That is all gone. His Administration has suffered what may well be a mortal blow to any opportunity to move decisively toward solving the problems we confront. He is not trusted; little affection remains. He is a part of the swamp of Watergate. He has touched Nixon and in touching him has been corrupted.
Why did he do it and what can now be done?
Though I, too, was among the many who were impressed and encouraged by Ford's initial responses to the challenges of the Presidency, I should have recalled an incident from his past that might have warned me that his seeming grace and poise were illusions. Ford's problem with granting this premature pardon was his inability to understand the basic lesson of Watergate that the law applies equally to all, including Presidents. Gerald Ford has never been sensitive to the demands of the law.
In fact, Ford engaged in an undeniable abuse of the law when he sought, many years ago, to impeach Supreme Court Justice William O. Douglas. That action was prompted by his disagreement with the liberal views of Justice Douglas and because President Nixon directed that politically motivated attack to threaten the Senate for its failure to approve Nixon's nominees to the Supreme Court, Carswell and Haynsworth. Ford knew that there was no real basis to seek impeachment of Douglas, and yet he pursued that objective to attain the political objective of coercing the Senate. He pursued it at the bidding of President Nixon. He utilized the Department of Justice, in the person of Atty. Gen. John Mitchell and the FBI, in order to obtain, improperly and covertly, information about Justice Douglas that was unconfirmed, malicious and erroneous raw gossip.
That whole sordid episode should have been sufficient to warn us that Ford does not understand, nor does he respect, the law. Gerald Ford's approach to the political use of the instruments of justice is not unlike the approach of his predecessor, and it is equally probable that this deficiency will lead him to engage in similar excesses in the future.
So we should not be surprised that Gerald Ford would have so little hesitation in usurping the judicial power when the end to be served was essentially a political one. And I believe the end was political. I do not overlook the impossible conflict of interest created by the Twenty-Fifth Amendment, whereby Ford is made President by Nixon and then is permitted to judge Nixon. There is no way, once that authority to judge is exercised, that the judgment rendered can be free of the corrupting influence of indebtedness and personal obligation. And I believe those factors also weighed in the decision to pardon Nixon.
But I believe the most influential forces on that decision were political. Had Ford awaited the definition of the risk Richard Nixon faced in terms of criminal liability, which would have become evident with indictment, his act of pardon would have been required perilously close to the November elections. Ford assumed, and properly, that his pardon would be unpopular and that the political consequences would be negative. He did not want this weight to fall on his party in the November elections and so he exercised his pardon before indictment, believing that the unpopular reaction would quickly subside and have minimal effects on the coming Congressional elections.
He also weighed the political consequences of the course of action he outlined in his August 28th news conference, which was to consider the pardon after the judicial process against Nixon had been completed. But a trial of Nixon would surely consume the better part of 1975 and, should it go against him, force a pardon decision from Mr. Ford during a period of time very close to his own Presidential election.
It seems certain that Ford always intended to grant Richard Nixon a pardon. After all, it is doubtful that he believes Nixon did anything improper. As recently as a week before the conclusion of the House Judiciary Committee proceedings, he announced to the nation, "I can say from the bottom of my heart that the President is innocent and he is right." And up to the bitter end of resignation, Ford was assuring the American people that "the preponderance of the evidence, all of it, is in favor of the President and exonerates him from any impeachable offenses."
His only doubt regarding the issuing of the pardon involved the timing, and I believe the timing was dictated almost solely by the political consequences to Gerald Ford and his party, as he perceived them to be. Despite his pious Sunday announcement, I do not believe the consequences to the nation played much part in his decision. I also believe he has erred in his assessment of the political consequences. Rather than being a short-lived political setback, I think it will prove devastating to the Republican Party and to President Ford personally.
Perhaps the most troublesome historical loss occasioned by this precipitous pardon will be the failure to complete the record of Richard Nixon's abuse of the Presidency and of the criminal acts for which the pardon was extended and because of which it was accepted. As long as the former President persists in his assertion that his resignation was caused by the liberal press and by a temporary loss of political support in the Congress, a substantial number of Americans will continue to believe him innocent of criminal conduct or impeachable offenses. And as long as President Ford fails to disabuse himself of such sentiments, the number of Americans deluded is likely to increase with the passage of time.
The only record of consequence now existing is that made by the House Judiciary Committee. That record is a good one, careful and persuasive. But much of its persuasion is the result of its currency and of the participation by the American people, via the televised hearings, in the making of that record.
I doubt that many who viewed those debates and were persuaded by them will be troubled to the point of doubt by the failure of that record to be added to and completed by the judicial proceedings against Mr. Nixon. But many in this country were not so persuaded. Many did not view the proceedings. And Americans of future generations will not be provided that opportunity of participation, with the consequent belief that Nixon should have been removed.
It is to that group of Americans, those who exist and are not persuaded, and those who are yet to come, that we owe the responsibility of a full and complete record to explain the necessity of removing Richard Nixon from the Presidency; to explain and record the extent of the abuse he committed on this nation.
It is therefore necessary to complete the record, and for that purpose there reasonably remains only one available forum—the Congress; and only one process—the still pending impeachment proceedings. I believe the Congress should undertake a number of responses to this problem of the unfinished record.
Clearly, we should encourage the Special Prosecutor, Leon Jaworski, to disclose the full extent of the evidence he possesses bearing on the possible criminal conduct of Mr. Nixon. To the extent that his investigations are not completed, he should be instructed to continue gathering and developing the available evidence—not for presentation in the trials that are now denied by Ford's pardon—but for presentation to the American people as part of the incomplete record.
The Special Prosecutor took an oath that bound him to "well and faithfully discharge his duties," including the duty to "investigate and prosecute offenses against the United States," including "allegations involving the President." Though President Ford has prevented the Special Prosecutor from "prosecuting" Nixon, the obligation remains to continue, conclude—and then report on—the investigation of allegations concerning the former President.
Neither should the Congress ignore the desire of President Ford to pardon the remaining forty or fifty lesser defendants in Watergate. The abomination represented by the pardon of Nixon will in no way be lessened by extending that outrage to all who were criminally involved in that assault on our political system. Congress should express its disagreement with any proposal for a blanket pardon of Watergate defendants and should particularly express its disapproval of the grant of any pardon to any individual prior to the completion of the judicial process.
But, most urgently, the record will be completed only when the evidence of Richard Nixon's wrongdoing can be obtained in a judicial manner. The only forum not realistically denied such an opportunity by President Ford and his pardon is the Judiciary Committee and the Congress in pursuit of the impeachment process. When Richard Nixon resigned his office, on the completion of the House Judiciary Committee proceedings and in response to the Articles of Impeachment voted by them, it was widely assumed that the primary purpose of impeachment, the removal from office of the offending official, had been accomplished and that the process should therefore conclude, even though it was not completed.
I concurred in that decision because I believe that the necessary record of the full extent of Nixon's wrongdoing would be completed in the upcoming judicial proceedings against him. I did not then seek the remaining consequences of full impeachment, trial and conviction, namely the loss of all emoluments pertaining to his service as President and the loss of his right to seek or hold any office of public trust in the future. I was content with the apparent attainment of two of the objectives of impeachment, removal from office and the completion of a full and accurate record justifying the necessity for impeachment and conviction.
President Ford has now deprived us of the opportunity that the judiciary system afforded of completing the full and accurate record that would have justified the removal of Mr. Nixon from office. I do not disagree with those who contend that, as it stands, the record of the Judiciary Committee will justify the votes for impeachment and removal from office that Nixon avoided by resigning. It will do so for me, and I suspect for a vast number of Americans—and as of today, for a majority of Americans. But we are recording history, and the record is insufficient to guarantee such a historical assessment.
Particularly, as the counteroffensive continues—Nixon denying culpability for anything beyond minor lapses in judgment and President Ford concurring by his constant expression of sympathy for the travail of Mr. Nixon and his family, and by his total rejection of any references to the reasons for that unfortunate plight.
At a minimum, the Judiciary Committee should insist on now receiving the many tapes it had subpoenaed and been refused by Nixon. Those tapes are truly in peril of being forever denied the American people as a result of the generous grant of custody of those important items of evidence given Mr. Nixon by President Ford.
And, before it considers closing the record, the committee should also seek the personal testimony of Mr. Nixon under oath and subject to cross-examination. If Mr. Nixon can testify as a witness in pending civil and criminal. trials, then he assuredly can and must give his testimony to the House Judiciary Committee.
It may be that at the conclusion of such evidentiary proceedings, the committee will determine to end the impeachment process without proceeding to trial.
It may be that the purpose of reopening the proceedings will have been adequately fulfilled—that is, the record will be deemed sufficient and complete. But that assessment cannot be made today.
To the extent that the lesson of Watergate remains unclear to President Ford, it will encourage further instances of his inadequate comprehension of the role of law and justice in his execution of the office of the Presidency. We owe him and the American people a more clearly defined lesson as to the limitations and obligations of his office. If he is as deficient in sensitivity and understanding of the limitations of law on Presidents as his actions in the pardon to Nixon would appear to demonstrate, we are in deep trouble. We reduce that probability if we respond firmly to his lapse.