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.”
On this page of The New York Review, thanks to Mr. Kalb, who furnished copies, we are printing for the first time the actual text of the first pardon proclamation as drafted by Haldeman and the text of his notes which the Star had summarized. The reason for doing so is that at the time of the Star story, its scoop looked like the revelation of an effort that failed. But in the light of what has happened since, it looks instead like a preview of the policy Ford pursued.
It should not be forgotten that Ford was planning to follow up his conditional amnesty offer to Vietnamese draft dodgers and deserters, and his Nixon pardon with a general pardon for the other Watergate defendants until the outcry in Congress stopped him. His own Senate Majority Leader, Scott of Pennsylvania, joined in a Senate resolution urging no more pardons and told the press there was “near unanimity” behind it in the Senate.
The reader will see from the proposed Watergate pardon proclamation drafted by Haldeman that it uses the same “national healing and reconciliation” rhetoric that Ford adopted in defending the Nixon pardon, an argument which logically justifies a general pardon because only by stopping all prosecutions can the nation’s mind be “diverted,” as Ford says, to the problems which face it. The reader will also see from Haldeman’s “notes” that he predicted that the whole pardon issue would prove a “trap” for Ford unless Nixon wiped the slate clean himself before leaving office, “to avoid,” as Haldeman wrote, “trauma of country.” How public-spirited these Watergaters were until the very end! The reader of the proposed message and the “notes” will also see that Haldeman envisioned a general pardon as the one way to get rid of Jaworski and the special prosecutor’s office altogether, and stop the cover-up trials before they started.
Against this background one can begin to see why it is as foolish to ask why Ford didn’t consult the attorney general and Jaworski in advance as it was naïve for people to ask so often during the Nixon years why he didn’t just—in the most inelegant phrase an inelegant administration contributed to the language—“let it all hang out.” To let it all hang out was to hang himself.
A similarly naïve question might be asked of Ford. If he truly wanted to save the country from more divisiveness and suspicion in the wake of Watergate, why didn’t he “touch all bases” before pardoning Nixon? How different the effect would have been if Ford had consulted the attorney general, as he implied he would last November, and Jaworski and the eight congressional leaders5 who are supposed to be consulted before any step to limit or abolish the special prosecutor’s office.
How impressive, how healing it would have been if the Nixon pardon had been countersigned, as it were, by the attorney general, the special prosecutor, and the eight congressional “watchdogs” set up by his charter! How impressive indeed! But even a latter-day Hans Christian Andersen would find it hard to imagine any of these other public officials counter-signing so preposterous and unprecedented a pardon before investigation and prosecution of the Watergate affair, up to and including the Oval Office, had been completed.
To have consulted the attorney general would have been most embarrassing. Under the Code of Federal Regulations—and the Supreme Court in US v. Sirica has just held that such regulations, until repealed, have “the force of law”—a “pardon attorney” in the Department of Justice is in charge “of the receipt, investigation, and disposition of applications to the president for pardon.”
The code sets up an elaborate machinery for investigating such applications. It also provides that no petition for pardon can be filed until three years after release of the petitioner from confinement, or three years after conviction if no prison sentence is imposed. But in cases of violation of “income tax laws, perjury, violation of public trust involving personal dishonesty…a waiting period of five years is usually required.” That would seem to cover any and all Watergate defendants including unindicted co-conspirator Nixon.
Of course a president can pretty much do as he pleases and get away with it in exercising the pardoning power, as in many other matters. But if the White House or the attorney general had inquired of the pardon attorney, as we did, they would have been told that the present occupant of the office had never heard of a presidential pardon outside these channels, that he had asked his predecessor who took office in 1950, and that the latter too could not recall such a presidential pardon. That covers the last quarter century at least.
The record further back at National Archives is even more embarrassing. Apparently American presidents have relied on some kind of pardon clerk procedure since the beginning of the republic. Originally this duty was fulfilled in the Department of State,6 and a Bureau of Pardons and Remission was formally established in it by the department’s first reorganization in 1833. By 1850 the real work of processing a pardon was shifted to the Department of Justice and an Office of Pardon Clerk was created there by statute as far back as 1865.
These procedures parallel those adopted in England, where the royal pardon, though still granted in the king’s name, is actually determined by the home secretary with the aid and advice of the Court of Criminal Appeals. So we find it said in American Jurisprudence, “Although the President’s pardoning power is less restricted than that of the English King, it has been seldom abused, because ordinarily applications are required to be presented through or referred to the Department of Justice.”7 (The italics are ours.)
The only way for a president to grant a swift pardon outside these time-honored channels is by proclamation, and that is the method adopted by Ford in the case of Nixon. But those at the National Archives to whom we put the question were unable to find a single precedent for the pardon of one man by proclamation. Pardon or amnesty proclamations have mostly been issued in connection with wars and have covered a whole class of persons. The earliest was issued to reward Jean Laffite’s pirates for their aid to Andrew Jackson in the War of 1812. The famous pardon and amnesty proclamations of Lincoln and Johnson were issued on special statutory authority from Congress under a law repealed in 1867.
The attorney general might have asked the President whether he wanted the uncomfortable distinction of being the first president in American history to pardon a single individual by proclamation in order to avoid the established procedures for investigating and processing pardon applications. The attorney general might have asked Mr. Ford whether a pardon under such circumstances was not likely to arouse more controversy and suspicion.
An attorney general conscious of his duty would have brought up other objections. One is whether the constitutional power to pardon “for offenses against the United States” may validly be exercised before any offenses have been formally charged. Another is whether the pardon would not violate the spirit and purpose, if not the letter, of the constitutional provision which grants the pardoning power “except in cases of impeachment.”
Ford and his lawyers must have been well aware that to consult the attorney general, much less Jaworski and the congressional leaders, in advance would have made it virtually impossible to issue either a Nixon pardon or a general pardon.
Secrecy was necessary in the case of the pardon as in the case of the equally vulnerable tapes agreement.8 On the tapes agreement there is the suspicion that Ford may be protecting himself as well as Nixon. The tapes might tell us more about the Nixon-Ford effort to impeach Douglas, when both the CIA and the FBI were used in an early but never fully explored example of “dirty tricks,” or about the successful effort to quash the early Watergate investigations launched by the Patman committee in the House and aborted after an appeal to Ford from Dean for Nixon. This appeal came to light on the September 15, 1973, tape read at the very beginning of the cover-up trial. Who knows what else may be on the tapes recorded during the years when Ford was Nixon’s ever faithful alter-ego as minority leader in the House.
Ms. Holtzman raised the question of Ford-Nixon tapes at the House hearing. She asked whether, to end suspicion about them, he would be willing to turn those tapes over. Ford’s answer was worthy of Tricky Dicky. The man who negotiated the tapes agreement behind the back of the attorney general and the special prosecutor, and without consulting either, now spoke as if he—and those tapes—were helplessly in their hands.
The tapes, he said, are being held by the White House “under an agreement which protects them totally, fully, for the special prosecutor’s office.” The tapes, he continued, “belong to Mr. Nixon, according to the attorney general; but they’re being held for the special prosecutor. And I think that’s the proper place for them to be kept.”
This misrepresents the attorney general’s opinion9 and the special prosecutor’s position. Even as Ford spoke the latter’s office was so exasperated by weeks of futile dealing with the Ford White House that it was about to subpoena the tapes Ford is withholding. Nothing reveals the real character of Ford better than his repeated references at the hearing to his concern for Jaworski’s right of access to the Nixon papers even as he was frustrating it.
On a plane trip back to Washington a few nights later, during an impromptu conference with reporters on the plane, someone—innocently?—asked Ford if he would fulfill the Holtzman request and turn over the Ford-Nixon tapes if Jaworski had no objection. “I’d be delighted” was Ford’s reply. Why doesn’t Ms. Holtzman write and ask Jaworski if he has any objections and then take Ford up on that reply. Our guess is that it will quickly be declared—in the imperishable verbiage of Ziegler—“inoperative.”
Over and over again at his confirmation hearing before the House Judiciary Committee last November—particularly when pressed about his own false statements at the time of the secret Cambodian bombing—Ford claimed that a president has a right, in his own words, “to blur the facts” when necessary. The blurring is well under way.
Let us turn now to Leon Jaworski. He, too, leaves office with disturbing questions unanswered. He owes it to himself and to the country to provide answers, to give a full report on his own stewardship. Watergate has taught us to take nothing for granted.
Just as Ford has yet to explain why he did not consult Jaworski on the pardon and the tapes agreement, Jaworski has yet to explain why he did not challenge either the pardon or the agreement. Nor has he satisfactorily explained why he chose to step down before his job was done.
Jaworski, in his letter of resignation to the attorney general, said “the bulk” of the special prosecutor’s work is done. “The bulk” is too vague a phrase to be satisfactory. For a view of this question from the other side we recommend an extensive analysis, “Jaworski’s Unfinished Job,” by Alan B. Morrison, director of litigation for Ralph Nader’s Public Citizen, in the Washington Post, Sunday, October 20. Morrison sums up the unfinished business this way—
The ITT task force has produced almost nothing, the campaign finance group has barely scratched the surface of the problem, and at least three separate investigations—the tapes erasure, the Hughes-Rebozo matter and possible fraud in the preparation of President Nixon’s income tax returns—remain incomplete.
Jaworski by staying to the end would have lent his prestige to the younger and more militant members of his staff in pursuing these controversial problems. Jaworski owes it to himself fully to explain (1) why he did not let the grand jury indict Nixon when it voted to do so while Nixon was still in office and (2) why he did not move to indict after Nixon resigned.
Jaworski’s explanations so far are too vague. His failure to indict originally foreclosed a court test of the question whether an incumbent president can be indicted. No such immunity was ever mentioned—if ever dreamed of—in the debates on the framing and ratification of the Constitution. The doctrine is Nixon-era law and established a precedent dangerous for the future. Jaworski should have allowed the grand jury to indict, and let the courts decide this crucial question.
When the Nixon resignation “mooted”—a favorite Jaworski word—this issue, why didn’t he then indict? The question was put to him by Lawrence Spivak on NBC’s Meet the Press, Sunday, October 20:
Spivak: Now, you had almost a month before the pardon to seek that indictment [of Nixon]. Why didn’t you seek it immediately?
The answers elicited just weren’t good enough:
Jaworski: Well, I couldn’t have because we were waiting for the trial in the Mitchell et al. case. I mean if I had wanted to go ahead and proceed with the indictment, I couldn’t have done it because I would have completely messed up, if I may use that expression, the Mitchell trial.
Spivak: How would you have messed it up? I don’t quite understand that.
Jaworski: Because, the very fact—supposing an indictment would have been returned. Either position you take on the matter, it would have affected the selection of the jury.
As an answer to a question which must have been kicked around many times at staff meetings, this was muddy. The question that bedeviled the selection of the jury was to find jurors willing to convict these underlings when the chief of the alleged conspiracy had gone free—with a pardon in advance for any and all crimes he may have committed during his entire term of office. It would have been much easier, not harder, to pick a jury for the cover-up trial if the No. 1 conspirator, the man who gave the orders, was in the dock with the lesser fry.
Jaworski ought also to clarify the colloquy which immediately followed, for it seems to reveal what he really meant and couldn’t bring himself plainly to say—
Spivak: Could it [an indictment] not also have affected the pardon?
Jaworski: In what sense?
Spivak: Well, I mean if the man was indicted, wouldn’t the president have hesitated to have pardoned him at that particular time?
Jaworski: I would think the thought [sic] for the reasons stated by the president, that it would have spurred on his efforts to grant the pardon.
A pardon for Nixon after an indictment and on the very eve of the trial might have created an even greater storm of disapproval. In this sense, it would indeed have “messed up” the trial of Mitchell et al. even more. But from the standpoint of equal justice wouldn’t the indictment thus have served to make it even harder for Ford to issue the pardon?
This brings us squarely to the pardon itself. Why didn’t Jaworski challenge it? The memorandum to the attorney general accompanying Jaworski’s letter of resignation is murky on the point, though worded with a passion unusual from a man ordinarily so cautious and chary of every word. Jaworski wrote in the memo that for him
to procure an indictment of Richard M. Nixon for the sole purpose [our emphasis] 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.
But the phrase emphasized—“for the sole purpose”—begs the question. Of course an indictment brought for that sole purpose would be improper. It would be improper for a prosecutor to indict Nixon if he thought him innocent just to test the president’s power to pardon him!
At this point in Jaworski’s murky memo, he seems to be saying there was no legal basis for indicting Nixon. Jaworski said that as an officer of the court and a prosecutor, he could not take a position “not supported by probable cause.” The phrase is the phrase used in making an arrest, issuing a warrant, or seeking an indictment. The Jaworski memo thus seemed to imply that there was not sufficient basis for indicting Nixon.
But in his first interview after his resignation was announced, Jaworski told the Wall Street Journal (October 16) that the cover-up trial would demonstrate Nixon’s complicity, and he made his conviction of Nixon’s guilt even clearer October 20 on Meet the Press.
And the very next day he gave an interview to Barry Kalb of the Washington Star (see its issue of October 22) saying that he became convinced of Nixon’s guilt within two months of taking office. These repeated assertions of Nixon’s guilt by the special prosecutor in a flurry of interviews seem to contradict his insistence in his memo to Attorney General Saxbe that there was no “probable cause” for an indictment.
Jaworski’s second point in defense of his failure to challenge the pardon, as made in the same memo, is that Congress never intended to limit the pardoning power of the president when it set up the office of special prosecutor. This is arguable, and should have been left to the courts to decide.
The issue originates in the order setting up Jaworski’s office. In it the president promised the Congress that he would not exercise his “constitutional powers” to discharge the special prosecutor or “limit” his independence. We have already seen that the Haldeman proposal to Nixon would have had him use the pardoning power to abolish the office altogether. Would that not be using a constitutional power—the pardon—in clear violation of the presidential pledge to Congress and the country? By pardoning Nixon was not Ford limiting the power and duty given Jaworski to investigate and prosecute “allegations involving the President” as well as his underlings?
In bringing a challenge, Jaworski could have made two other points. One is that under the peculiar and unprecedented circumstances of the case the pardon was another link in a continued cover-up. The second is that the pardon violated the spirit, if not the letter, of the constitutional provision which gives the president power to pardon “except in cases of impeachment.”10 The president had resigned to avoid full investigation of his misdeeds in impeachment and his successor by pardoning him in advance was preventing full disclosure in the courts. This undercut the very purpose of the Constitution’s effort to insulate impeachment from the pardoning power.
In his memo to Saxbe Jaworski seems to be saying that Congress never intended to limit the president’s pardoning power in the charter establishing the special prosecutor’s office. In one sense that may be so. No one ever dreamed, after the pledges he seemed to be giving at his confirmation hearings last November, that Gerald Ford would use the pardoning power to limit the special prosecutor’s powers. If he hadn’t deceived Congress by his famous remark—“the people would never stand for it”—Congress might have been more wary. If it had, the charter would certainly have nailed down that hatch and forbade interference by pardon with the investigation and prosecution, at least until they had been completed.
In a real sense, however, that contingency was covered by forcing the president, as the price of Senate confirmation for Saxbe, to promise that he would not use any of his constitutional powers to interfere with the special prosecutor or the scope of his inquiry.
Was this question of congressional intent not a matter for the courts to decide? Why should it have been decided in camera by Jaworski without public discussion? Why should he, by his memo, have come close to foreclosing a challenge by any successor, since the weight of his prestige has thus been thrown against any such challenge? And why did his resignation and the Wall Street Journal interview upholding Ford’s right to pardon come just in time to help Ford in his appearance before the House Judiciary subcommittee hearing?
The memo to the attorney general seems to reflect a bitter controversy over the pardon issue within the special prosecutor’s office. Jaworski’s assistant, Philip J. Lacovara, resigned in protest—he says—against the pardon. But there is some reason to believe that the resignation was not so much in protest against the pardon as against Jaworski’s failure to challenge it in the courts.
This suspicion is given added fuel by the “selective disclosure” the memo employs. Jaworski cites Lacovara to the attorney general and quotes from a memo by Lacovara as if this memo supported Jaworski’s position on the pardon. But that memo was written before the pardon and dealt with the general question of whether a pardon could be granted before conviction.
If a congressional committee wants to look further into the matter, it ought to ask for a second memo which went to Jaworski from Lacovara’s office after the pardon, recommending a challenge to the pardon and outlining how a challenge could be made. Lacovara declines to discuss it or to say whether he agreed with this memo submitted to Jaworski from his office. But if he supported Jaworski’s decision not to challenge, one would expect him to say so. (There is a large body of case law in the states which holds that pardons by governors are reviewable in the courts.)
The memo, from what I have been able to learn, suggested that the best way to challenge would be to indict Nixon and then let him come into court and plead the pardon. Alternatively, if Jaworski was adamant against an indictment, the special prosecutor could move for a declaratory judgment though that would be a weaker route.
The truth may lie in Jaworski’s strong emotional block against indicting a president. This makes itself felt in the interview he gave William Greider (Washington Post, October 22) where Jaworski said he did not seek an indictment (a more realistic way to phrase it would be that he would not let the grand jury indict) because that might interfere with the impeachment and that a trial would have meant months of delay in which “you have a nation wounded by an indicted President, wounded domestically, wounded internationally. I can’t imagine anything more irresponsible.”
But his job was not to assess the effect of his actions on the domestic and international situation. If Congress had felt so emotional about those “wounds” it would never have started the Watergate hearings, or the impeachment inquiry, or set up the special prosecutor’s office. Congress had already decided that the country would be more wounded by letting Nixon get away with it than by getting rid of Nixon, and indeed Jaworski—for all his qualms—deserves credit for doing more than almost any other single person except Judge Sirica and Senator Ervin toward that end.
But he certainly seems to have had his tremulous moments in dealing with the White House. Perhaps because General Haig may yet be called to testify in House hearings on pending legislation to keep Nixon from getting and destroying the tapes, Jaworski has himself lifted the curtain on two hitherto unrevealed meetings with Haig.
On Meet the Press October 20 he disclosed that he had conferred with Haig before Nixon resigned and was careful to involve himself in no commitments of any kind; one wonders, however, whether Haig asked him if he would challenge a Nixon pardon.
In the Barry Kalb interview in the Washington Star two days later Jaworski disclosed that when he became convinced last December of Nixon’s complicity in the cover-up he went over to the White House and told Haig that Nixon ought to hire the best criminal lawyer he could get; this picture of Jaworski in a mother-hen role toward the presidency hardly accords with the arm’s length relationship one expected, and deserves a fuller exploration. Nixon knew better than Jaworski that he needed a good lawyer.
One final urgent question. Why did not Jaworski go into court and challenge the Nixon-Ford tapes agreement as an interference with his duties? The result of his inaction was to leave the field open for Nixon to file suit on October 17 to enforce the Nixon-Ford tapes agreement. In this suit, Nixon’s adversaries will be the very men and forces who worked with him in framing the agreement. The defendants are Arthur F. Sampson, the head of the General Services Administration, the government’s chief janitor, the top fallguy for Ford; Philip W. Buchen, Ford’s personal counsel; and H. Stuart Knight, head of the Secret Service. That is a set-up. Even though at press time Jaworski filed a motion asking the right to intervene in the Nixon suit, his action seeks only to protect the evidence he wants to subpoena and does not attack the tapes agreement itself.
The only challenge to both the pardon and the tapes agreement is from James McCord, a Watergate defendant. A group of historians, political scientists, and newspapermen have filed a challenge to the tapes agreement, and others are in the works from Jack Anderson and the Committee for Public Justice under the Freedom of Information Act. But none of these challengers has the standing to be as effective as the special prosecutor’s office. Failure to challenge both or either must be marked against Jaworski. Unfortunately his deputy and chosen successor, Henry Ruth, seems to see eye to eye with him on both questions. There is little hope for a change of policy, unless renewed pressure comes from Congress.
A bill that would save the day is the Nelson-Ervin bill. This is a superbly drafted piece of legislation which would preserve public control of all Watergate documents and give Nixon no more than “just compensation” under eminent domain even if he eventually established ownership in the courts. The bill passed the Senate 56 to 7 before the recess and is now before a House Administration sub-committee chaired by John Brademas of Indiana. It is a measure of the desperation and arrogance of the Ford-Nixon forces that when Brademas wrote the White House to ask assurance that the Nixon-Ford tapes agreement would not be implemented until Congress returned from its election recess and had a chance to complete action on this legislation, Ford’s lawyer Philip Buchen replied that except under court order the White House had no power to delay the agreement even temporarily while Congress considers the question. What other bodies may be buried in these tapes that Nixon and Ford are so frantic in their efforts to keep them from public view?
—October 24, 1974
THE HALDEMAN PLAN
THE WATERGATE AMNESTY PROCLAMATION HE WROTE FOR NIXON
As I resign my office and turn it over to my successor, I feel it is vitally important that your new President be able to take office with a clean slate, unhampered by the Watergate tragedies. The Watergate has been the cause of unexampled national concern and division.
It is now time for the country to heal these divisions and to move strongly forward by dealing with the problems and opportunities of the future. It should learn by the lessons of the past but it should not dwell on old grievances which can only hinder and delay the healing process. It is time to have not just a partial end to these traumatic problems, but to have a complete end and a new beginning.
With these purposes in mind and exercising the powers and responsibilities conferred by the Constitution upon the President, I have today signed an unconditional pardon for all those [except myself] who have been convicted, have been charged, or who may be charged with violations of the law in any aspect of what has become known as Watergate in its broad sense—encompassing 1972 and 1970 election activities, ITT, the milk money, the Ellsburg [sic] case, the national security wiretaps, and any other matter included within the Charter granted to the Special Prosecutor.
Since this precludes any further prosecution of Watergate matters, I am ordering the closing down of the Special Prosecutor’s office—subject, of course, to the concurrence of the Congressional leaders as specified in the establishment of that Office. If it should be deemed necessary to take any legal steps against me, the ordinary channels will still be available.
Those (convicted and not convicted, known and unknown) who may be guilty of violations of law have already been punished and suffered severely, and many who are innocent have also suffered in spite of their innocence.
The costs of pursuing the prosecutorial process to its conclusion, in terms of bitterness, human anguish, and diversion of effort from more important goals, far outweigh any possible benefits to be obtained. If it is pursued to its conclusion, the process will run for at least several more years, and salt the wounds which now afflict the country. The national interest is not served in any way by a continuing of this sad experience.
It is also clear that the total saturation of the mind of the public to an extent unprecedented in history, with statements and conclusions, official and unofficial, concerning events of Watergate, makes it highly probable that injustices will occur—and may well have already occurred. No thirst for vengeance nor any sincere desire to exact the ultimate penalties of the law can justify the improper conviction of one innocent man. Compassion and healing should be our objective rather than vengeance or hatred.
In taking this action immediately prior to submitting my resignation, I fully realize that I will incur the displeasure and disapproval of many. But I am, on mature deliberation, convinced that the light of history will show this to have been a responsible and completely proper act in the execution of my duties. I am not circumventing the law, in any respect, but rather I am following the specific and clearly stated provision of the Constitution regarding the granting of Presidential pardons.
From a purely personal viewpoint I can assure the American people that I am acting in what I sincerely believe to be their best interest. It is time to put our enormous talents and resources to work, not in negative efforts to tear down individuals or the country, but in those positive efforts that have made America a great and powerful country. I am confident that my successor will have the full support of all of the American people to these ends, and that with that support, our country will realize those great opportunities that lie ahead.
With this proposed message Haldeman sent to the White House an alternative message, “Proposed Statement Including Reference to Vietnam.” It is largely identical to the first, except that it includes this sentence: “First, I have declared an unconditional pardon for all those who violated the law with regard to the draft for armed service for the period of the Vietnam War.”
HIS LAST MEMO TO NIXON
Notes For Consideration
On personal basis—better to close the chapter now than to have to sit by helplessly for the next several years and watch trials and appeals.
Historically—would be far better to grant the pardon and close the door to such process than to let it run and have the trials become a surrogate impeachment. Also, history will look kindly on loyalty and compassion to subordinates caught in the web.
Solves problem of potential prosecutor access to files and tapes by eliminating basis for further prosecution—also solves problem of defense forcing access to files.
The only way to wipe the slate clean is to shut down the prosecution totally. As long as it is there, there is a possibility of other new things.
You set an inevitable trap for Ford if you don’t clear it up completely. This is the one and only chance for a complete end, instead of a partial end.
The defendants have an impossible situation in trial—no way to get a fair trial anywhere in the country—injustices are bound to occur.
To avoid trauma of country, injustice to defendants, personal problems to RN, adverse historical effects—all point to necessity of overall pardon.
Basic point is to consider in long-term context, not just short-term effect. The failure to do this now may make things slightly easier for the next few days, but will make them infinitely worse for the coming weeks, months and years.
H. R. H.
QUITE AN ADMISSION
The Chairman (Cannon): Do you believe that a president can legally prevent or terminate any criminal investigation or prosecution involving the president?
Mr. Ford: I do not think he should.
—At the Senate Rules Committee hearings on Ford’s nomination as vice
president, November, 1973
Chairman Rodino: You mentioned criminal action. Would you think that the president could, by use of executive privilege or by executive fiat, terminate any criminal investigation involving even the president or vice president?
Mr. Ford: I do not think the president should have the authority to terminate a criminal investigation of anybody in any branch of the federal government.
—At the House Judiciary Committee hearings on the vice presidential
nomination, November, 1973
Representative James R. Mann (D. SC): Was it your intention by the pardon [of Nixon] to terminate the investigation by the special prosecutor’s office in the ten areas [in which Nixon was still under investigation] that you received a report from that office on?
President Ford: I think the net result of the pardon was in effect just that, yes, sir.
—Before the House Judiciary Committee, October 18, 1974.—IFS
November 14, 1974
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. ↩
The eight specified are the majority and minority leaders of both houses and the chairmen and ranking minority members of the Senate and House Judiciary committees. ↩
“From 1789 to 1850,” says the Preliminary Inventory of the General Records of the Department of State, “the Secretary of State received petitions for the pardon of criminals convicted by Federal courts. The Secretary, with the Attorney General, considered the petitions and recommended to the President their granting or denial.” ↩
59 Am Jur 2d (1971), Pardon and Parole, section 13. ↩
See on the tapes agreement my earlier article “The Fix,” NYR, October 3. Also my Op Ed attack on the Nixon pardon in The New York Times, October 9. ↩
The attorney general’s opinion, written not about but before the tapes agreement, dug up an opinion by Justice Story which could be used to invalidate the provisions allowing Nixon to destroy the tapes. Saxbe ended with a warning that under the rules of civil and criminal procedure the Ford White House could not evade its responsibility (as it is doing) to hand over subpoenaed tapes and documents in its custody regardless of who owned or claimed to own them. ↩
This exception had its origin in the Earl of Danby’s case under Charles II. Danby tried to block his impeachment by pleading that he had a royal pardon granted in advance for any crime with which the Commons might charge him. ↩