There is no need to repeat what so many others have said about the charade of Ford’s hearing before the House Judiciary Committee—the time wasted in fulsome obeisance to His Imperial Majesty, the abject thankfulness of the leadership for the privilege of being conned, the subcommittee’s disastrous lack of preparation for the hearing, the chance given Ford to waste most of the precious time available in a prepared statement which filibustered by repeating the evasive inadequacies he had already repeated so many times before, the strict five-minute rule which guaranteed grasshopper-minded interrogation, and above all the refusal to allow Bella Abzug of New York and John Conyers of Detroit to participate in the questioning their resolutions of inquiry1 had precipitated. To the general praise of Ms. Holtzman for the sole attempt at militant inquiry we would add only our dismay at what wet firecrackers the other two liberal members, Kastenmeier of Wisconsin and Edwards of California, turned out to be. Conyers deserves mention for the astute final words of the despairing statement he issued afterward, “The resolution of inquiry has been used shrewdly to forestall a thorough inquiry.” Ford—like Nixon before him—has temporarily at least turned investigation into self-serving theater.
Yet there were certain revelations which have been lost sight of. It is time to focus on them and see what can be learned by placing them in context. The first is that Nixon’s main concern during his last days in office was how to avoid prosecution. Of the six options Ford disclosed that Nixon was considering before he resigned, three dealt with the pardoning power.2 The second revelation is that Nixon was actually considering as one option pardoning himself and all the Watergate defendants before resigning from office. So brazen a spectacle as the climax of Watergate would have set off a fire-storm far greater than that which greeted the firing of Archibald Cox and disgraced the Republican party for a long time to come.
It is a pity there was no time at the swiftly stage-managed hearing to allow these disclosures and their full implications to sink in and be made the occasion for further probing. What was Ford’s reaction when Haig told him so barefaced a general do-it-yourself pardon (no doubt without including Judas Dean) was seriously being considered? Last November, at his confirmation hearing, Ford said “the people would never stand for it” if he pardoned Nixon. What did he think would be their reaction if Nixon pardoned himself and his whole odoriferous crew before resigning from office? What did he think would be the effect at the coming November elections? On the future of the Republican party? What did he say to Haig about it? What alternatives did they discuss to avoid so horrendous a spectacle? Was not the final option—“A pardon to the President” by Ford, that is, “should he [Nixon] resign”—the one sure way to prevent Nixon from committing political suicide by a self-pardon and carrying his party down to ignominy with him?
Ford says he did not make a deal. Nobody asked him what he meant by a deal. He certainly didn’t make a deal in the sense of saying, “Dick, if you resign and give me the presidency, I’ll pardon you for any crimes you may have committed.” But in the conversation with Haig could they not very naturally and urgently have said to each other that anything would be better for the GOP and the country than a general self-pardon? Was there not a kind of political blackmail in Nixon’s implied threat to pardon himself? Did Ford mention to Haig that for him to pardon Nixon would also be embarrassing in view of the position he had taken at his confirmation hearing? Was this Nixon threat “the reality” Ford said at one press conference he had to contend with when asked about his earlier implied pledged not to pardon—the pledge he dismissed as “hypothetical”?3
Now we come to another revelatory bit in the Ford statement. All these tantalizingly quick glimpses were made necessary, I believe, by the possibility that General Haig might some day be called to testify. The next revelation we want to focus on is that Ford became alarmed next day after talking with Nixon’s lawyer, James St. Clair. What seems to have alarmed him is that St. Clair—Nixon’s adept, ingenious, and ever faithful personal counsel—was taking no responsibility whatsoever for the legally bizarre but desperate practically of a self-pardon by Nixon. This was Ford’s description of his talk with St. Clair—
When I pointed out to him [St. Clair] the various options mentioned to me by General Haig, he told me he had not been the source of any opinion about presidential pardon power.
This must have chilled Ford, and looked like a warning signal. If even St. Clair was careful to keep his distance from any idea of a president pardoning himself before leaving office, it must have seemed pretty dubious strategy indeed. Ford may have felt that the self-pardon threat was a bluff or so dangerous a ploy that he had better adopt a similar stance. Immediately after this disclosure of the talk with St. Clair came the disclosure of an anxious phone call to General Haig next day—
After thought on the matter, I was determined not to make any recommendations to President Nixon on his resignation. I had not given any advice or recommendations in my conversations with his aides….
This is the first mention of other conversations with aides other than General Haig. Who were they and when did they take place? If Ford did not commit himself in those conversations by giving them “any advice or recommendations” why does he go on to add “but I also did not want anyone who might talk to the President to suggest that I had some intentions to do so”? Was it possible that detailed discussion of alternatives might some day come out as implied promises in a ticklish situation where it was essential to preserve Ford’s ability to say there had been no “deal”? So we have another disclosure—
For that reason, Mr. Chairman, I decided I should call General Haig the afternoon of August 2. I did make the call late that afternoon [That was the day after the two conversations with Haig took place and the same day on which, during the morning, he spoke to St. Clair.—IFS] and told him I wanted him to understand that I had no intention of recommending what President Nixon should do about resigning or not resigning; and that nothing we had talked about the previous afternoon should be given any consideration in whatever decision the President might make.
Why was this phone call necessary if the conversation with Haig was as antiseptic as Ford’s formal statement makes it appear to be? If no “advice or recommendations” were made to General Haig—as Ford says they were not made in this or his other “conversations” with other Nixon “aides”—what was there that Nixon could possibly have taken into consideration? What did Ford mean when he said that “nothing we had talked about the previous afternoon” should be considered?
Could it be that Ford was so horrified by the idea of the self-pardon that he indicated that, without making any recommendations or promises, he would favorably consider a Nixon pardon after taking office if the Republican party were spared the spectacle of a self-pardon? As the history of antitrust litigation demonstrates so amply, there are many ways to handle a price-fixing conspiracy without compromising oneself by explicit promises it would be perjury later to deny.
Any lawyer preparing a case, or any historian reconstructing an event from meager materials, must conclude from what Ford did disclose that he became panicky as Nixon’s “options” put him squarely on the spot in those last days of Nixon’s administration.
Now we come to another disclosure and Ford’s peculiar way of making it. Almost at the very end of the hearing, and in response to no pressuring question from the subcommittee, Ford suddenly volunteered this—
Somebody asked about when I last saw the President. I said that I had last seen him on the 9th. I did, as he departed. But I had also seen the President the morning of the 8th at the time I was asked to come and see him. And at that time we spent an hour and 20 minutes together, or thereabouts, when he told me that he was going to resign. So I saw him both the 8th and the 9th, just to make the record accurate.
What uneasiness led Ford to make that disclosure of a lengthy conversation with Nixon before he resigned? And why was the disclosure slipped in at the very close of the hearing when it was too late to question him about it? Why was it left out of the prepared statement after which even this easily overawed and only half-awake subcommittee might have asked questions about this final Nixon-Ford parlay before Nixon left office?
Did Nixon say he hoped for a pardon by Ford since he had not pardoned himself? Did he also say he hoped for a pardon for his associates? Did he bring up the tapes and other Watergate documents? Did he say he wanted to take them into his own custody and destroy those he thought better “shredded”? Did he ask Ford’s help in what was to become the quickly negotiated tapes agreement? Would Ford and Nixon have felt freer to speak directly than through subordinates because both could invoke executive privilege in the unlikely event that either was ever questioned about that last get-together?
One thing is clear, and was almost certainly brought to their attention by their lawyers in studying the pardon question. Criminal liability attaches to an agreement to grant a pardon except where the contract serves some law enforcement purpose. Section 2 of the chapter on pardons and parole in American Jurisprudence says, “Where, however, personal interest enters into the success of the contract, or the use of personal influence is contemplated, the general rule is that the contract is illegal as against public policy, and so unenforceable.” A pardon tainted by fraud is revocable in the courts under a rule already old at the time of Blackstone, who wrote, “Any suppression of truth, or suggestion of falsehood, in a charter of pardon, will vitiate the whole.”4 It may not be merely public relations or propaganda which leads Ford now to stress that the pardon was given not to help an ailing Nixon but to help an ailing country.
Now I want to take Ford’s own disclosures and put them side by side with an earlier “leak” from the Haldeman camp, and show how it helps us in reconstructing what has happened since Ford took office. On September 13 the Washington Evening Star published an exclusive by a bright young reporter named Barry Kalb who revealed that on August 7 in a telephone call to the White House H. R. Haldeman proposed that Nixon either (1) issue a general pardon for his aides and, apparently, if he chose, himself or (2) exploit the amnesty campaign for Vietnamese deserters and draft evaders to issue a general “national reconciliation” amnesty covering them and the Watergate offenders in one big package, Nixon included, if he so chose. By putting the words “except myself” in brackets when he wrote up these pardon proposals Haldeman left it to Nixon to exclude himself if he wanted. The next morning Haldeman sent the White House two alternative messages embodying these alternative amnesties. Accompanying them was a memo from “H. R. H.” called “Notes for Consideration.”
Mrs. Abzug, who has given the women's movement the glory of providing the Number 1 Mensch in the House, deserves special commendation for resurrecting from the rules the long forgotten device of a resolution of inquiry as the means of forcing answers from a president and cabinet officials comparable to the questiontime procedure in the House of Commons.↩
Ford numbers them as five, probably to muffle the impact, but point five, as the press generally at once noted by calling the options six, really covered two options. Option four was "whether the President could pardon himself." Option five was "pardoning the various Watergate defendants, then himself, followed by resignation." The sixth option was "a pardon to the President should he resign."↩
Somebody in Grand Rapids ought to try this Fordism on his friendly local banker, when he tries to foreclose on a mortgage loan, and fight foreclosure on the ground that the promise to pay was "hypothetical" while the inability to pay was the relieving "reality."↩
IV Blackstone 400.↩
Mrs. Abzug, who has given the women’s movement the glory of providing the Number 1 Mensch in the House, deserves special commendation for resurrecting from the rules the long forgotten device of a resolution of inquiry as the means of forcing answers from a president and cabinet officials comparable to the questiontime procedure in the House of Commons.↩
Ford numbers them as five, probably to muffle the impact, but point five, as the press generally at once noted by calling the options six, really covered two options. Option four was “whether the President could pardon himself.” Option five was “pardoning the various Watergate defendants, then himself, followed by resignation.” The sixth option was “a pardon to the President should he resign.”↩
Somebody in Grand Rapids ought to try this Fordism on his friendly local banker, when he tries to foreclose on a mortgage loan, and fight foreclosure on the ground that the promise to pay was “hypothetical” while the inability to pay was the relieving “reality.”↩
IV Blackstone 400.↩