September 8, 1974: a disturbing precedent

From the text of Proclamation 4311, the actual pardon:

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

Ford’s unconditional pardon of Nixon’s actions as president set a dangerous and disturbing precedent.

Ford’s rationale can be found in this paragraph:

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

The rationale does not justify establishing the idea that high officials of this nation are somehow exempt from the criminal sanctions intended to deter wrongdoing.  

While it is true Nixon had not been indicted – yet – it is also true that the Watergate Grand Jury had reached a conclusion that he should be indicted, but Special Prosecutor Leon Jaworski argued that a sitting president could not be indicted, so the grand jury reluctantly only named Nixon as an unindicted co-conspirator.

At the time of the pardon, I tended to accept Ford’s rationale.  My then girlfriend and I had one of our very first arguments, with here arguing against the pardon.  One this her instincts were right and mine were wrong.

It is true that Spiro Agnew was forced from office and lost his law license, but his actions were those of a common criminal, accepting of bribes stemming from his service as Baltimore County Executive, bribes continuing during his service as Governor and then as Vice President.  One might argue that they had little if anything to do with his federal service.  Still, the Justice Department determined that he could be prosecuted.  He got off lightly because there was an Attorney General of integrity who worried that Nixon might be impeached and removed and he did not want a common crook to ascend to the Oval Office.  Elliot Richardson had been the only many Nixon could get confirmed as Attorney General after the scandals of his previous Attorneys General began to come to light.  Richardson had appointed the very independent Archibald Cox to investigate Watergate, and resigned rather than fire Cox when that gentleman demanded the White House tapes.  As I said, a man of integrity.

Nixon faced impeachment on three charges voted out by the House of Representatives Committee on the Judiciary.  Consider the heart just of the First of these three articles:  

On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.

The means used to implement this course of conduct or plan included one or more of the following:

  1. making false or misleading statements to lawfully authorized investigative officers and employees of the United States;

  2. withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;

  3. approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;

  4. interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;

  5. approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities;

  6. endeavouring to misuse the Central Intelligence Agency, an agency of the United States;

  7. disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;

  8. making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct: or

  9. endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.

Think how many criminal actions are contained therein.  Consider the perversion of the criminal justice system.  Consider the abuse of office.  Consider the violation of his oath of office.

Nixon did not face criminal sanctions for the wrongdoing in this article, nor for violating the rights of citizens as cited in the 2nd article, nor for his failure to respond to duly issued subpoenas in an attempt to block impeachment procedings.  

Nixon was asserting a doctrine of an imperial presidency, one he repeated in his interview with David Frost when he asserted that if the President does it, it is not against the law.

Really?

In Watergate, the most important conspirator, without whom the coverup would not have been possible, faced no punishment.  This established a precedent that the highest officials would never suffer.  We can look at the damage this did to our system in the pardons of Iran-Contra or in the the commutation of Scooter Libby’s sentence, or in the refusal of the current administration to even undertake appropriate criminal investigations of the misdeeds of the previous administration.

No person should be above the law.  The pardon of Nixon placed him above the law. It spoke loudly, that beyond the loss of political office there would be no punishment for a President who violated the law, who abused the powers of his office.  

The failure to fully expose to the American people the scope of the crimes of Richard Nixon allowed for the perversion of the impeachment process as it was used against Bill Clinton.   And do not doubt that the impeachment of Clinton was at least in part payback by some for the impeachment actions against Nixon –  there were key Republicans quite well aware that Hillary Rodham had been a staff attorney for the House Judiciary Committee.  But that is a separate issue.

There are things we should teach our children.  There are things we somehow exclude from our history curriculum.  Our children are raised without a proper understanding.  On Monday it was appropriate for people to note that most high school courses in American History gloss over labor history, so that a decreasing number of Americans have any understanding of how the labor movement benefited them even if they have never joined a union.  They do not understand how unions were a major reason this nation did not succumb to the tendency of plutocracy.

We also do not fully teach what happened in the Nixon administration.  Hell, Bill Clinton went and spoke at his Nixon’s funeral.  That seemed to offer a rehabilitation that should not have occurred, not without a full exposure of the wrong-doing, not without Nixon required to accept responsibility for how he perverted his office and our criminal justice system.

Perverted our criminal justice system – for personal and political advantage.  Think back to the last administration’s misuse of the criminal justice system to go after Democrats.  Remember that part of the reason for the protections of the Bill Rights was to prevent the use of the criminal justice system against political opponents.   If you doubt this, read the Declaration of Independence, where the King’s misuse of criminal justice was a major part of the complaints.  Those grievances against the King were because rights supposedly long established for Englishmen were being ignored, rights established as far back as Magna Carta, through the Petition of Right and the English Bill of Rights.

We chose not to have a king.  We established a government of laws and not of men.  If some men are exempt from the consequences of the law by virtue either of their office or the power of office of their benefactor/sponsor, we no longer have a government of laws.  If only the lower level wrongdoers are punished, as happened for example in Abu Ghraib, then we have abandoned the principle of command responsibility as we applied it in the execution of General Yamashita for the atrocities committed by his troops.

The scope of crime need not be on the scale of the Holocaust and the aggressions of World War II in order to hold high government officials responsible.  We have held that national leaders of other countries who commit crimes against us can be prosecuted –  Manuel Noriega, anyone?  We have justified military and legal actions against leaders of other nations because of the crimes they have committed against their own people –  Saddam Hussein, anyone?  And yet we seem reluctant to hold to the standard of law when it is our own leaders, be it Nixon’s perversions of justice, Reagan’s violation of US law in Iran-Contra, or Bush’s starting an unjustified and aggressive war.  We have so allowed the standards of justice to slip that Congress retroactively exempted the telecomms for gross violations of the rights of Americans denying those abused their right to recover appropriate compensatory damages, and an administration that persistently violated laws and the rights of Americans walked away with no one punished for those abuses.  No one.  

It is not that President before Nixon had not abused their office.  I know too much history to ever assert that.  

Yet Ford’s pardon of Nixon was something new –  at least in scope.  It was a blank check.  If Nixon had secretly raped or murdered or stolen millions in his capacity as President, it did not matter.  He walked way free.  

Ford argued that the country was returning to normal.  I respectfully disagree.  To ignore what happened and move on was an invitation to subsequent presidents to act with even more reckless impunity, and they did.

It meant that the rich and powerful could aspire to a different standard of justice for them, and get it.

It meant that the American people were denied important information about what those in the government were doing with the power we lent them to act on our behalf, and we are still denied information.

36 years ago tonight a President of the United States went on television to announce a full and unconditional pardon of his predecessor for all the wrongs he had done, known or unknown, in his misuse and abuse of the powers of an office first held by George Washington, held by the likes of Thomas Jefferson, Abraham Lincoln, and the two Roosevelts.  None were perfect, but all used the powers of the office they each held largely for the benefit of the American people, not to cover up their own misdeeds nor to advance a personal agenda not agreed to by the American people.  

I do not think the country has yet recovered from that blow to our system.

36 years ago Leaves on the Current was right, and I was very wrong.  

What Gerald Ford did damaged this nation.

We are still suffering.

We should not forget.