The consensus seems to be that Gerald Ford, who died December 26, at 93, was a healer. And his pardon of Richard Nixon, although controversial at the time, is now cited as perhaps his most significant achievement. History, it has been said, has been kinder to him than the voters who turned him out of office. Not so fast.
Ford was indeed a nice guy, although he did–before he was named to replace the disgraced Spiro Agnew as Vice President–call for the impeachment of liberal Justice William O. Douglas, ostensibly because Douglas had contributed an article to The Evergreen Review, an avant-garde publication too racy for the Congressman’s taste. But missing from the otherwise near-universal encomiums for his helping to put what he called “our long national nightmare” behind us is any serious questioning of his own version of the story behind that pardon, which in the long run may have more to do with his historical reputation than the fact of the pardon itself.
We should know, if for no other reason than that in 1979 Ford’s publisher, Harper & Row, sued The Nation over a story we published concerning that pardon. Technically, the suit had to do with the fair-use doctrine: Had The Nation, which had been leaked an advance copy of the manuscript of Ford’s memoir, quoted more of Ford’s words than the fair-use doctrine permits? The Supreme Court, overturning an appeals court decision, said we had. In fact, we had only quoted a few hundred words from Ford’s 110,000-word book. But the Court, voting 6 to 3 against us‚ didn’t buy our position that public figures, who have every right to profit from their memoirs, have no right to copyright the news. So be it.
According to Ford, on August 1, 1974, a week before Nixon resigned, White House Chief of Staff Al Haig took Ford for a walk in the Rose Garden and told him that the “smoking gun” tapes establishing Nixon’s complicity in the Watergate cover-up had been found and that they had to get the President out of there. If Ford promised to pardon Nixon, Haig thought, he would agree to resign. Ford said he then asked Haig if it was possible to pardon a person before he had been indicted. Haig said yes, adding that White House counsel had checked out this detail.
The way Ford wrote it, the conversation was all very innocent. He didn’t even tell his wife, Betty, about it. But the next morning when he mentioned the conversation to an aide and the aide asked, And then what did you say? and Ford said, Nothing, the aide said that in that context, mention of a pardon could be “a time bomb.” And when Ford told a second aide, the aide said, “Silence implies assent.” Ford says he then called Haig and read him a statement (which he reproduced in the book and which we reproduced in our article), the point of which was that nothing that was or wasn’t said in the previous day’s conversation would have any bearing on whatever Ford would or wouldn’t decide.
Writing for the Court, Justice Sandra Day O’Connor assumed that because The Nation “attempted no independent…research” the news we hoped to make with our story was the same news that Ford hoped to make with his book, and that being the case we should have bid for publication rights, along with Time magazine (which won them and then canceled its plans after the news came out). Of course, from The Nation‘s perspective, the point we hoped to make was the opposite of Ford’s. By removing his gloss of innocence but presenting the facts as he had presented them, we raised the possibility that his call to Haig was strictly for cover.
Forget about fair use (subsequent legislation and litigation brought the law of fair use back to where it had been before the Nation case): If The Nation was right in its interpretation of what Ford and Haig had cooked up, healing or no healing, the behind-the-scenes deal that took place was nothing less than obstruction of justice.
Ford, who also presided over the withdrawal of our troops from Vietnam, may now be justly celebrated as a healer. Let future historians decide whether he was also a justice obstructor.
