Gerald Ford pardoned Richard Nixon and paid for it at the ballot box

Politicians make two kinds of decisions. There are the ones they make for the next election, and there are the ones they make for the next generation, and the trick of the trade is to know the difference before the cameras are on. On the morning of Sunday, September 8, 1974, Gerald Ford walked into the Oval Office and made the second kind. He knew, because his own staff had told him, that it would cost him dearly. He signed it anyway.

Not even a year earlier he had been the Republican leader of the House, a congressman from Grand Rapids whose ambitions had once gone no higher than Speaker. Then Spiro Agnew resigned as Vice President, Ford was appointed to replace him in December 1973, and eight months later Richard Nixon resigned the presidency. Ford took the oath on August 9 and told the country that "our long national nightmare is over." A month later, with the nightmare still the first thing on every kitchen table in America, he gave Nixon a pardon. The reaction was like dropping a plate in a cathedral.

I want to make the case, and make it carefully, that Ford was right. Not because I think Nixon's conduct was acceptable, since the evidence is in watergate in twelve dates and the one that finally ended it and it is not, but because I think the decision was one of the most serious acts of statesmanship by a Republican President in the twentieth century. I will also give you the strongest argument against it, because you cannot win a debate by ignoring the best objection. Let me take you through it.

What the pardon actually said

Start with the text. The document is Proclamation 4311, and you can find it in the National Archives and in the Federal Register. After reciting that Nixon was subject to possible criminal prosecution, it grants "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."

Read the dates. They cover the entire presidency, not just Watergate. And read the word "may." The pardon reaches offenses Nixon "may have committed," which means no charge had been filed and none was required. This is where the legal argument begins. Can a President pardon someone who has not been charged? The Supreme Court answered in 1866, in Ex parte Garland, a case about an Arkansas lawyer who had served the Confederacy and then received a presidential pardon, that the pardon power extends to every offense known to the law and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction. That is a very wide power. Article II, Section 2 gives the President the power to grant "Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The only exceptions are impeachment and offenses against a state. For a longer tour of how the power works, see Pardon Power Questions Answered, From Washington to Ex parte Garland.

So the pardon was legal. That is the easy part. The hard part is whether it was right.

The case against, at full strength

Here is the argument Ford's critics made in 1974, and many of them were sincere.

First, no one is above the law. A President who breaks it should face a court like any other citizen, and a pardon before any trial or even an indictment means a jury never got to decide anything. The public never heard the evidence sworn and tested.

Second, the timing looked terrible. Nixon resigned on August 9, and one month later the man he had elevated to the Vice Presidency pardoned him. Even if there was no deal, it looked like a deal, and the appearance of a corrupt bargain does its own damage to public trust. Ford's own press secretary, Jerald terHorst, resigned in protest the day of the announcement.

Third, there was the suspicion that something had been arranged. Alexander Haig, Nixon's chief of staff, had spoken to Ford on August 1 about the options open to the President, one of which was resignation followed by a pardon. Ford has said he made Haig no commitment of any kind. That history gave the rumor a plausible origin.

Fourth, there is the Burdick argument, which lawyers love. In Burdick v. United States (1915), a newspaper editor named George Burdick had been offered a pardon by President Wilson so that he could not invoke the Fifth Amendment before a grand jury. Burdick refused to accept the pardon. The Supreme Court held that he did not have to, writing that a pardon "carries an imputation of guilt; acceptance a confession of it." Critics of the Nixon pardon concluded that, by accepting it, Nixon had in effect acknowledged guilt. Defenders of Ford sometimes use that argument too, for reasons of their own.

Those are four good points. I do not dismiss any of them.

The answer, in five points

Now the response. This is the order in which I would put it.

1. The country was not going to move on while a former President sat in a courtroom. Imagine what a prosecution would have looked like. A grand jury, an indictment, motions about pretrial publicity, appeals over executive privilege and the tapes, and a jury selection process in which every prospective juror had watched the Senate hearings. Ford feared that the case would drag on for a very long time. During that time every news broadcast, every congressional race and every foreign leader would be dealing with the Nixon trial. And the country had a recession, an energy crunch, inflation, and a world to run. Ford said as much in his announcement, and I think his assessment was sound.
2. The pardon did not erase what had happened. The record was already public. Nixon had resigned. Congress had held months of hearings. The tapes were out. The Supreme Court had ruled. The House Judiciary Committee had adopted its articles of impeachment. The story was told. What remained was punishment, and the question was whether punishing a man who had already lost the highest office in the land was worth the price of keeping the country in turmoil. Ford thought it was not.
3. Ford acted to preserve the evidence, not hide it. In December 1974 Ford signed the Presidential Recordings and Materials Preservation Act, which put the Nixon tapes and papers under the control of the government instead of Nixon. The Supreme Court upheld it in 1977. A President trying to bury the story would not have signed that bill.
4. He showed mercy to others in the same month. On September 16, 1974, a week after the Nixon pardon, Ford announced a conditional clemency program for Vietnam-era draft evaders and military deserters, with a requirement of public service in exchange. You may agree or disagree with it. It shows his instinct was to close a painful chapter for the whole country, not to protect one friend.
5. He answered the "deal" charge under oath. On October 17, 1974, Ford appeared in person before a subcommittee of the House Judiciary Committee to answer questions about the pardon, which was a very unusual step for a sitting President. He said that there had been no agreement of any kind, and no evidence of one has been established in the decades since. The strongest piece of evidence that there was no deal was that the man who took the political punishment for it was Ford, not Nixon.

Finally, there is an argument from the Founders. In Federalist No. 74, Alexander Hamilton explained why the pardon belongs in a single hand. He wrote that in times of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon may restore the tranquility of the commonwealth, which a slow deliberation might never be able to do. That is exactly Ford's argument. The Founders gave the President a tool for the moment when the country needs the story to stop.

What the text of the proclamation adds

Look closely at what Ford said in his announcement. He did not claim Nixon was innocent. He said that "my conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book." That sentence is the entire decision in miniature. It is a claim about the office, not a verdict about the man. Ford did not argue that Nixon deserved forgiveness. He argued that the Presidency has a duty to protect the Republic's future, and that duty could only be discharged by the President.

You do not have to agree. Plenty of honest conservatives do not. But you should know what the argument actually was, because a great many people who criticize the pardon have never read it.

The price

Now to the title of this post. Did Ford pay?

He did, and quickly. The public's first reaction was fury, and his standing fell sharply in the weeks that followed. In the November 1974 midterms, Democrats made large gains in both chambers of Congress, and although Watergate and a weak economy contributed, the pardon was part of the story. Ford faced a serious challenge for the Republican nomination in 1976 from Ronald Reagan, whose rise I describe in The 1964 television speech that turned Ronald Reagan into a conservative leader. Ford won the nomination narrowly, and in November he lost a close race to Jimmy Carter, the former governor of Georgia.

How much of that was the pardon? Historians disagree. Ford had inherited a recession and high inflation. He faced an angry post-Watergate electorate. He had a stumble in a debate over Soviet domination of Eastern Europe. But Ford himself believed the pardon cost him, and many of his advisers agreed. He accepted that cost before he signed.

The verdict of history

Here is the part of the story I find most satisfying. Opinion shifted. In the decades after he left office, even many of his critics concluded that Ford had done the country a service. In May 2001 the John F. Kennedy Library Foundation gave Ford its Profile in Courage Award for the pardon, and the award was presented by Senator Edward Kennedy, a Democrat who had criticized the pardon in 1974. Kennedy said that history had proved Ford right and acknowledged that he had been wrong to oppose the decision. I would remind you that this is a Kennedy, not a partisan Republican, speaking.

You can disagree with that verdict. But notice what it means to be given a courage award for a decision that cost you your office. Courage in politics rarely looks heroic at the moment. It looks like losing.

What the Ford pardon teaches about the pardon power

Let me draw out the rules a conservative should take from the episode.

One, the pardon power is broad on purpose. The Constitution put it in one person's hands so that it could be used quickly. That breadth is a feature of the system, and it is also the reason every use of it should be explained to the public in plain language. Ford did exactly that, in a televised statement and then in testimony before Congress.

Two, the remedy for a bad pardon is political, not legal. Short of the impeachment exception, no court can overturn one. Voters can. That is what happened in 1976. If you dislike a President's pardons, the tool you have is your ballot and your voice.

Three, a President who uses the power for the public interest has to be willing to pay for it. The test of a good pardon is whether the President can explain why the country is better off, not whether it helps him. Ford passed that test and failed the political one.

Four, mercy and accountability are not enemies. Nixon had already paid in the way that matters most to a politician. He had lost the presidency, his place in public life, and his reputation. That does not mean he should have been excused from every consequence, but it does mean the pardon was not a blank check. A good pardon should be judged on whether it serves justice and the common good, and the first is not the same as the harshest sentence available.

The bottom line

• Ford's pardon was legal under Article II and Ex parte Garland, it was explained in public and under oath, and it came with a record already complete through hearings, the tapes and the Supreme Court.
• The strongest objections, no one above the law and the look of a bargain, are serious. A fair conservative takes them seriously and answers them with the facts above.
• Ford paid a political price, which is the best evidence that he acted from conviction and not calculation.
• When a President grants a pardon, ask three questions: Is it explained plainly? Is the record preserved? Who is served by it? Apply the same test to Presidents of both parties.
• Read Proclamation 4311 and Ford's statement of September 8, 1974 yourself. They are short, and they are better than any summary.