“I don’t think the public would stand for it.”

Ian Ayres

When asked during his vice-presidential confirmation hearings about whether he would grant Nixon a pardon should he need one, Ford replied: "I don't think the public would stand for it."

In some ways, these are the most important nine words of Ford’s career, but they are almost absent from the web.

Unlike other Presidential commitments like George Bush’s “read my lips” or George W’s unequivocal promise not to reinstate the draft, it is not clear whether Ford’s comment was even a promise. It can be read as being literally non-responsive to the question asked and instead opining on the public’s possible future reaction to any such pardon. [In a press conference after the pardon, Ford claimed that he hadn’t promised “I said in answer to that hypothetical question, I did not say I wouldn't. I simply said that under the way the question was phrased, the American people would object.” At the same press conference he seemed to forget the nine words when he said “I must say that the decision has created more antagonism than I anticipated.”]

But Ford’s nine words can also be read as being implicitly responsive. “Would you pardon the man who nominated?” “[Oh no,] I don’t think the public would stand for it.”

It was ill-advised for Ford to utter these nine words. To even intimate a commitment not to pardon at that early date was inappropriate if there was even a possibility that he would later feel compelled to do so.

People have focused on the wrong question when it comes to the Nixon pardon. Too many people just ask whether Nixon should have been pardoned. But to my mind there is a subsidiary question of whether Ford was the right person to pardon him. Even if you believe that Nixon should be pardoned, there are two reasons to think that Ford was not the appropriate person to grant that pardon. First, the nine words. Ford had intimated in his confirmation hearings that he would not. Second, it is unseemly for Ford to pardon the person who nominated him for the job. At a minimum, it creates an appearance of impropriety.

Nixon had actually considered pardoning himself before resigning and Al Haig had indirectly suggested to Ford the idea of a Ford pardon before Nixon resigned. Ford was worried that his silence during these meetings might have “implie[d] assent” and Ford called Haig and read him a statement which he intended to make clear that there was no pardon deal in place. Ford read to Haig: “I want you to understand that I have no intention of recommending what the President should do about resigning or not resigning and that nothing we talked about yesterday afternoon should be given any consideration in whatever decision the President may wish to make.”

This statement of course failed to mention the p-word. The subsequent revelation of these failed pardon negotiations make it ethically even more inappropriate for Ford to be the one to grant the pardon.

But there was another way for Ford to move the country forward. Imagine that Ford, on Sept. 8, 1974 barely a month into office, had not gone on TV and uttered these words:

“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 Au gust 9, 1974."

Imagine instead that Ford had gone on TV and told the American people that he had come to believe that for the good of the country Nixon must be pardoned. But he did not feel he was appropriate person to pardon him. Ford could have announced he intended to resign in three weeks unless both houses of Congress pass a joint resolution supporting a presidential pardon.

Congress would have a choice of keeping Ford as president with a Nixon pardon or they could have Nelson Rockefeller as the country's new president. If both houses of congress passed the resolution, there would be no impropriety in Ford then granting the pardon. If Congress failed to pass the resolution, Ford would resign and then Rockefeller would have had greater ethical freedom to pardon Nixon. Rockefeller did not intimate that he would not pardon. Rockefeller was not nominated by the person seeking a pardon.

If Ford thought that there really was a compelling case for a pardon, he could make his case to Congress and to the American people. If he could not forge a consensus in Congress that it was a time to heal, then he might step aside and let another President make the call.
Posted 8:11 AM by Ian Ayres [link]