Balkinization  

Thursday, December 28, 2006

“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.

Comments:

Jerry Ford was in a no win situation. Prosecuting Nixon would consume the rest of his Presidency or pardoning Nixon would make it very unlikely that he would be elected in his own right in 1976.

The pardon is a presidential power and responsibility. Ford could not constitutionally pawn this responsibility off on Congress. Nor would Congress have agreed to accept that responsibility in the 1974 election year.

Ford was right when he observed that the public would not stand for the pardon. As a result of the pardon, the voters punished the GOP and elected a radically left Democrat congress in the 1974 elections. Then, two years later, the voters tossed out Ford for an unknown peanut farmer.

Ford should have prosecuted Nixon. Instead, Ford and the GOP paid politically for Nixon's crimes.
 

Except in the very unlikely event that a written contract is discovered, it looks as if we will never know whether the pardon was a quid pro quo for the vice-presidential nomination.
 

Suppose Congress hadn't agreed, and the country had been put through the trauma of its second-ever presidential resignation?

Blackmailing Congress with resignation threats is a bad idea. Too Henry Kissinger, you might say.
 

" If both houses of congress passed the resolution, there would be no impropriety in Ford then granting the pardon."

No, some things are improper even if a majority of Congress votes for them. The Nixon pardon established a principle, still in place, that Presidents are above the law. Prosecuting Nixon would have underscored the point that we are all equal before the law.
 

So, the lawful trial of a former President on charges that forced him to resign would have been bad for the nation, while an impeachment trial of a sitting President, on charges that were so flimsy they could not even muster a simple majority in the Senate, let alone the two-thirds needed for removal, was somehow good for the nation.
 

Vince:

You have a point. Both men were felons beyond any reasonable doubt and should have been prosecuted and imprisoned.

If Martha Stewart can do a few months for lying to the FBI, so could have Richard Nixon and Bill Clinton.

There is nothing to celebrate about Ford's pardoning of the felon Nixon for political reasons any more than there was anything to celebrate about the not guilty votes in the Senate trial of Bill Clitnon when it was obvious he had committed at least two counts of felony perjury.
 

Bart: There are felons and then there are felons. Some threaten our democracy, whereas others commit perjury in connection with a civil suit that involved conduct that occurred before his presidency. But let's say that it is appropriate to be inflexible about this and impeach any president who commits a felony. Surely, then, you would support the impeachment of the incumbent for kidnapping (arresting with no intention to try) and torturing hundreds of people?
 

As a recently minted law school graduate (and a huge Watergate junkie), I had a conception of what a trial would have been like--and cringed.

That said, I always thought that Ford acted WAY prematurely. He should have let ptoceedings go to the indictment stage--and then do what he did. That would have brought more clarity to the matter, while still avoiding the pitfalls and national focus of a trial.
 

Nelson Rockefeller didn't take office until December. If Ford had offered to resign absent Congressional support, Congressional support wouldn't have been found--the Democrats would have had the prize they were seeking.
 

Henry, there are "felonies" and felonies; Some represent an effort to criminalize policy differences, and thus are appropriate fodder for impeachment, but not prosecution. Bush's "felonies" fall mostly into this catagory, and impeach away; I won't object. In fact, I'd be delighted to see the bar for impeachment lowered a bit, it might take the imperial presidency down a peg or two.

Some, however, are simply criminality of a conventional sort, or abuse of office for personal advantage, and should most assuredly be prosecuted in criminal court. Siccing the IRS on your enemies, arranging for malicious prosecutions or violations of privacy statutes for PR purposes, perjury, subornation of perjury, witness tampering, destruction of evidence, in the course of legal procedings concerning private behavior, are of this sort.

Nixon and Clinton would have been appropriate to prosecute criminally. And impeach only to the extent that their crimes involved abuse of office, or demonstrated a lack of fitness for the same.

Personally, since assuming the Presidency requires one to swear an oath of office, I regard any evidence that you have contempt for formal oaths as disqualifying in that sense.
 

Brett: I don't know the extent to which Bush's war crimes, imprisoning people without trial, and torture, violate federal law (though, as a reader of this blog, I should), but surely they violate international law. Indeally, we should ship him to the Hague to face charges -- that would take the imperial presidency down a peg or two, and would be an acknowledgement by the U.S. that it is part of the family of nations.
 

Henry said...

Bart: There are felons and then there are felons. Some threaten our democracy, whereas others commit perjury in connection with a civil suit that involved conduct that occurred before his presidency.

Both Nixon and Clinton committed the same type of felonies covering up a politically embarrassing episode. To paraphrase the old saying - its not the crime, its the coverup.

Surely, then, you would support the impeachment of the incumbent for kidnapping (arresting with no intention to try) and torturing hundreds of people?

I would if there was any evidence whatsoever of your alleged crime. The government is authorized to detain enemy combatants or their agents and interrogate them. Such detention is not kidnapping and, as we have beaten to death in the past, coercive interrogation is not torture.

IMHO, if the President failed to detain and interrogate the enemy during a time of war, that would be a dereliction of duty as CiC so fundamental as to deserve impeachment.
 

Brett said...

Nixon and Clinton would have been appropriate to prosecute criminally. And impeach only to the extent that their crimes involved abuse of office, or demonstrated a lack of fitness for the same.

I have to disagree with this defense offered by Mr. Clinton's supporters.

There is a very good argument to be made that impeachment is the only sort of prosecution of the President allowed under the Constitution while he or she is in office.

If you also hold that a President may only be impeached for high crimes and misdemeanors which involve an abuse of his office, the President could then walk out on Pennsylvania Avenue and murder a dozen people without being subject to prosecution so long as he or she is in office.

Perhaps I am being too much of a populist here, but I hold to the quaint notion that the President is subject to the same criminal laws as are the rest of us.
 

"There is a very good argument to be made that impeachment is the only sort of prosecution of the President allowed under the Constitution while he or she is in office."

Really? I must admit, I've never heard it. You would think that if the President were immune to prosecution during his term of office, it would be mentioned somewhere in the Constitution. After all, they saw fit to mention the rather more limited immunity members of Congress have while the legislature is in session.
 

Brett said...

BD: "There is a very good argument to be made that impeachment is the only sort of prosecution of the President allowed under the Constitution while he or she is in office."

Really? I must admit, I've never heard it. You would think that if the President were immune to prosecution during his term of office, it would be mentioned somewhere in the Constitution. After all, they saw fit to mention the rather more limited immunity members of Congress have while the legislature is in session.


I believe there is a court decision or two which has held that, because the only form of prosecution noted in the Constitution for a President is impeachment, then that is the only form permitted.

I have not looked at this subject since the Clinton impeachment proceedings, but perhaps one of our resident Professors might know where to find these cases.
 

"Bart" DePalma:

There is nothing to celebrate about Ford's pardoning of the felon Nixon for political reasons any more than there was anything to celebrate about the not guilty votes in the Senate trial of Bill Clitnon when it was obvious he had committed at least two counts of felony perjury.

"Asked and answered." Actually, pointed out by me repeatedly, and never responded to by "Bart": "Bart" continues to ignore the fact (as did Ken Starr and the RW foamer Republicans insistent of Clinton's blood) that perjury (18 USC § 1621 et seq.) involves three essential elements, only one of which "obviously" occured, and one of which -- the most studiously avoided by the RW foamers -- is, by any objective assessment, missing: materiality.

It is also not at all clear that Clinton believed his answers to be false, and it is the belief, as opposed to the actual falsity, that is another essential element of the crime of perjury (strangely enough, in theory one could be prosecuted for a true statement as long as the affiant believed it to be false). Clinton may have been treading a very thin line, and in his 2001 statement to Ray he admits that in hindsight he thinks he may have crossed over the line of truthfulness, but it was his belief at the time of making the statement that matters.

All academic, of course; the perse... -- ummm, sorry, "prosecution" -- of Clinton was entirely political and partisan; various Republicans had been putting out theories of impeachment almost from the second Clinton stepped into office. They just needed a "hat" to hang their witch-hunt on. The "perjury" one was pretty damn lame (even with some tittilation thrown in for good measure), but it was the best they had and the Republicans, ever partisan, ran with it as far as they could. Needless to say, it was only Republicans that voted to convict, and even some Republicans of good conscience (or at least a slight thread of remaining conscience) couldn't sign on to that despite the strong-arming of the leadership, and it ended up an(other) embarrassing blot on the Republican party.

Cheers,
 

"Bart" DePalma said:

Perhaps I am being too much of a populist here, but I hold to the quaint notion that the President is subject to the same criminal laws as are the rest of us.

... such as 50 USC § 1809. Right?

Cheers,
 

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