Appendix to Opinion of the Court
The portions of The Nation article which were copied verbatim from “A Time to Heal,” excepting quotes from government documents and quotes attributed by Ford to third persons, are identified in bold face in the text. See ante at 562, n. 7. The corresponding passages in the Ford manuscript are footnoted.
The Ford Memoirs Behind the Nixon Pardon
In his memoirs, A Time To Heal, which Harper & Row will publish in late May or early June, former President Gerald R. Ford says that the idea of giving a blanket pardon to Richard M. Nixon was raised before Nixon on resigned from the Presidency by Gen. Alexander Haig, who was then the White House chief of staff.
Ford also writes that, but for a misunderstanding, he might have selected Ronald Reagan as his 1976 running mate, that Washington lawyer Edward Bennett Williams, a Democrat, was his choice for head of the Central Intelligence Agency, that Nixon was the one who first proposed Rockefeller for Vice President, and that he regretted his “cowardice”1 in allowing Rockefeller to remove himself from Vice Presidential contention. Ford also describes his often prickly relations with Henry Kissinger.
The Nation obtained the 655-page typescript before publication. Advance excerpts form the book will appear in Time in mid-April and in The Reader’s Digest thereafter. Although the initial print order has not been decided, the figure is tentatively set at 50,000; it could change, depending upon the public reaction to the serialization.
Ford’s account of the Nixon pardon contains significant new detail on the negotiations and considerations that surrounded <471 U.S. 571> it. According to Ford’s version, the subject was first broached to him by General Haig on August 1, 1974, a week before Nixon resigned. General Haig revealed that the newly transcribed White House tapes were the equivalent of the “smoking gun“2 and that Ford should prepare himself to become President.
Ford was deeply hurt by Haig’s revelation: “Over the past several months Nixon had repeatedly assured me that he was not involved in Watergate, that the evidence would prove his innocence, that the matter would fade from view.”3 Ford had believed him, but he let Haig explain the President’s alternatives.
He could “ride it out“4 or he could resign, Haig said. He then listed the different ways Nixon might resign and concluded by pointing out that Nixon could agree to leave in return for an agreement that the new President, Ford, would pardon him.5 Although Ford said it would be improper for him to make any recommendation, he basically agreed with Haig’s assessment and adds,“Because of his references to the pardon authority, I did ask Haig about the extent of a President’s pardon power.” 6
“It’s my understanding from a White House lawyer,” Haig replied, “that a President does have authority to grant a pardon even before criminal action has been taken against an individual.”
<471 U.S. 572> But because Ford had neglected to tell Haig he thought the idea of a resignation conditioned on a pardon was improper, his press aid, Bob Hartmann, suggested that Haig might well have returned to the White House and told President Nixon that he had mentioned the idea and Ford seemed comfortable with it. “Silence implies assent.”
Ford then consulted with White House special counsel James St. Clair, who had no advice one way or the other on the matter more than pointing out that he was not the lawyer who had given Haig the opinion on the pardon. Ford also discussed the matter with Jack Marsh, who felt that the mention of a pardon in this context was a “time bomb,” and with Bryce Harlow, who had served six Presidents and who agreed that the mere mention of a pardon “could cause a lot of trouble.”7 <225 USPQ 1086>
As a result of these various conversations, Vice President Ford called Haig and read him a written statement: “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.”
Despite what Haig had told him about the “smoking gun” tapes, Ford told a Jackson, Mich., luncheon audience later in the day that the President was not guilty of an impeachable offense. “Had I said otherwise at that moment, “ he writes, “ the whole house of cards might have collapsed.”8
In justifying the pardon, Ford goes out of his way to assure the reader that “compassion for Nixon as an individual <471 U.S. 573> hadn’t prompted my decision at all.”9 Rather, he did it because he had “to get the monkey off my back one way or the other.”10
The precipitating factor in his decision was a series of secret meetings his general counsel, Phil Buchen, held with Watergate Special Prosecutor Leon Jaworski in the Jefferson Hotel, where they were both staying at the time. Ford attributes Jaworski with providing some “crucial” information11 – i.e., that Nixon was under investigation in ten separate areas, and that the court process could “take years.”12 Ford cites a memorandum from Jaworski’s assistant, Henry S. Ruth Jr., as being especially persuasive. Ruth had written:
“If you decide to recommend indictment I think it is fair and proper to notify Jack Miller and the White House sufficiently in advance so that pardon action could be taken before the indictment.” He went on to say: “One can make a strong argument for leniency and if President Ford is so inclined, I think he ought to do it early rather than late.”
Ford decided that court proceedings against might take six years, that Nixon “would not spend time quietly in San Clemente, “13and “it would be virtually impossible for me to direct public attention on anything else.”14
Buchen, Haig and Henry Kissinger agreed with him. Hartmann was not so sure.
<471 U.S. 574> Buchen wanted to condition the pardon on Nixon agreeing to settle the question of who would retain custody and control over the tapes and Presidential papers that might be relevant to various Watergate proceedings, but Ford was reluctant to do that.
At one point a plan was considered whereby the Presidential materials would be kept in a vault at a Federal facility near San Clemente, but the vault would require two keys to open it. One would be retained by the General Services Administration, the other by Richard Nixon.
The White House did, however, want Nixon to make a full confession on the occasion of his pardon or, at a minimum, express true contrition. Ford tells of the negotiation with Jack Miller, Nixon’s lawyer, over the wording of Nixon’s statement. But as Ford reports Miller’s response. Nixon was not likely to yield. “His few meetings with his client had shown him that the former President’s ability to discuss Watergate objectively was almost nonexistent.”15
The statement they really wanted was never forthcoming. As soon as Ford’s emissary arrived in San Clemente, he was confronted with an ultimatum by Ron Zeigler, Nixon’s former press secretary. “Lets get one thing straight immediately,” Zeigler said. “President Nixon is not issuing any statement whatsoever regarding Watergate, whether Jerry Ford pardons him or not.” Zeigler proposed a draft, which was turned down on the ground that “no statement would be better than that.16 They went through three more drafts before they agreed on the statement Nixon finally made, which stopped far short of a full confession.
When Ford aide Benton Becker tried to explain to Nixon that acceptance of a pardon <225 USPQ 1087> was an admission of guilt, he <471 U.S. 575> felt the President wasn’t really listening. Instead, Nixon wanted to talk about the Washington Redskins. And when Becker left, Nixon pressed on him some cuff links and a tiepin “out of my own jewelry box.”
Ultimately, Ford sums up the philosophy underlying his decision as one he picked up as a student at Yale Law School many years before. “I learned that public policy often took precedence over a rule of law. Although I respected the tenet that no man should be above the law, public policy demanded that I put Nixon – and Watergate – behind us as quickly as possible.”17
Later, when Ford learned that Nixon’s phlebitis had acted up and his health was seriously impaired, he debated whether to pay the ailing former President a visit. “If I made the trip it would remind everybody of Watergate and the pardon. If I didn’t, people would say I lacked compassion.”18 Ford went:
He was stretched out flat on his back. There were tubes in his nose and mouth, and wires led from his arms, chest and legs to machines with orange lights that blinked on and off. His face was ashen, and I thought I had never seen anyone closer to death.19
The manuscript made available to The Nation includes many references to Henry Kissinger and other personalities who played a major role during the Ford years.
<471 U.S. 576> On Kissinger. Immediately after being informed by Nixon of his intention to resign, Ford returned to the Executive Office Building and phoned Henry Kissinger to let him know how he felt. “Henry,” he said, “I need you. The country needs you. I want you to stay. I’ll do everything I can to work with you.”20
“Sir,” Kissinger replied, “it is my job to get along with you and not yours to get along with me.”
“We’ll get along,” Ford said. “I know we’ll get along.” Referring to Kissinger’s joint jobs as Secretary of State and National Security Adviser to the President, Ford said, “I don’t want to make any change. I think it’s worked out well, so let’s keep it that way.”21
Later Ford did make the change and relieved Kissinger of his responsibilities as National Security Adviser at the same time that he fired James Schlesinger as Secretary of Defense. Shortly thereafter, he reports, Kissinger presented him with a “draft” letter of resignation, which he said Ford could call upon at will if he felt he needed it to quiet dissent from conservatives who objected to Kissinger’s role in the firing of Schlesinger.
On John Connally. When Ford was informed that Nixon wanted him to replace Agnew, he told the President he had “no ambition to hold office after January 1977.”22 Nixon replied that that was good since his own choice for his running mate in 1976 was John Connally. “He’d be excellent,” observed Nixon. Ford says he had “no problem with that.”
<471 U.S. 577> On the Decision to Run Again. Ford was, he tells us, so sincere in his intention not to run again that he thought he would announce it and enhance his credibility in the country and the Congress, as well as keep the promise he had made to his wife, Betty.
Kissinger talked him out of it. “You can’t do that. It would be disastrous from a foreign policy point of view. For the next two and a half years foreign governments would know that they were dealing with a lame-duck President. All our initiatives would be dead in the water, and I wouldn’t be able to implement your foreign policy. It would probably have the same consequences in dealing with<225 USPQ 1088> the Congress on domestic issues. You can’t reassert the authority of the Presidency if you leave yourself hanging out on a dead limb. You’ve got to be an affirmative President.”
On David Kennerly, the White House photographer. Schlesinger was arguing with Kissinger and Ford over the appropriate response to the seizure of the Mayaguez. At issue was whether airstrikes against the Cambodians were desirable; Schlesinger was opposed to bombings. Following a lull in the conversation, Ford reports, up spoke the 30-year-old White House photographer, David Kennerly, who had been taking pictures for the last hour.
“Has anyone considered,” Kennerly asked, “that this might be the act of a local Cambodian commander who has just taken it into his own hands to stop any ship that comes by?” Nobody, apparently, had considered it, but following several seconds of silence, Ford tells us, the view carried the day “Massive airstrikes would constitute overkill,” Ford decided. “It would be far better to have Navy jets from the Coral Sea make surgical strikes against specific targets.”23
<471 U.S. 578> On Nixon’s Character.Nixon’s flaw, according to Ford, was “pride.” “A terribly proud man,” writes Ford, “he detested weakness in other people. I’d often heard him speak disparagingly of those whom he felt to be soft and expedient. (Curiously, he didn’t feel that the press was weak. Reporters, he sensed, were his adversaries. He knew they didn’t like him, and he responded with reciprocal disdain.)24
Nixon felt disdain for the Democratic leadership of the House, whom he also regarded as weak. According to Ford, “His pride and personal contempt for weakness had overcome his ability to tell the difference between right and wrong.”25 all of which leads Ford to wonder whether Nixon had known in advance about Watergate.
On hearing Nixon’s resignation speech, which Ford felt lacked an adequate plea for forgiveness, he was persuaded that “Nixon was out of touch with reality.”26
In February of last year, when The Washington Post obtained and printed advance excerpts from H.R. Haldeman’s memoir, The Ends of Power, on the eve of its publication by Times Books, The New York Times called The Post’s feat “a second-rate burglary.”
The Post disagreed, claiming that its coup represented “first-rate enterprise” and arguing that it had burglarized nothing, that publication of the Haldeman memoir came under the Fair Comment doctrine long recognized by the <471 U.S. 579> courts, and that “There is a fundamental journalistic principle here – a First Amendment principle that was central to the Pentagon Papers case.”
In the issue of The Nation dated May 5, 1979, our special Spring Books number, we will discuss some of the ethical problems raised by the issue of disclosure.
Cross references to the original manuscript
1 I was angry at myself for showing cowardice in not saying to the ultraconservatives, “It’s going to be Ford and Rockefeller, whatever the consequences.” p. 496.
2 [I]t contained the so-called smoking gun. p. 3.
3 [O]ver the past several months Nixon had repeatedly assured me that he was not involved in Watergate, that the evidence would prove his innocence, that the matter would fade from view. p. 7.
4 The first [option] was that he could try to “ride it out” by letting impeachment take its natural course through the House and the Senate trial, fighting against conviction all the way. p. 4.
5 Finally, Haig said that according to some on Nixon’s White House staff, Nixon could agree to leave in return for an agreement that the new President – Gerald Ford – would pardon him. p. 5.
6 Because of his references to pardon authority, I did ask Haig about the extent of a President’s pardon power. pp. 5-6.
7 Only after I had finished did [Bryce Harlow] let me know in no uncertain terms that he agreed with Bob and Jack, that the mere mention of the pardon option could cause a lot of trouble in the days ahead. p. 18
8 During the luncheon I repeated my assertion that the President was not guilty of an impeachable offense. Had I said otherwise at that moment, the whole house of cards might have collapsed. p. 21.
9 But compassion for Nixon as an individual hadn’t prompted my decision at all. p. 266.
10 I had to get the monkey off my back one way or another. p. 236.
11 Jaworski gave Phil several crucial pieces of information. p. 246.
12 And if the verdict was Guilty, one had to assume that Nixon would appeal. That process would take years. p. 248.
13 The entire process would no doubt require years: a minimum of two, a maximum of six. And Nixon would not spend time quietly in San Clemente. p. 238.
14 It would be virtually impossible for me to direct public attention on anything else. p. 239.
15 But [Miller], wasn’t optimistic about getting such a statement. His few meetings with his client had shown him that the former President’s ability to discuss Watergate objectively was almost nonexistent. p. 246.
16 When Zeigler asked Becker what he thought of it, Becker replied that no statement would be better than that. p. 251.
17 Years before, at Yale Law School, I’d learned that public policy often took precedence over a rule of law. Although I respected the tenet that no man should be above the law, public policy demanded that I put Nixon – and Watergate – behind us as quickly as possible. p. 256.
18 My staff debated whether or not I ought to visit Nixon at the Long Beach Hospital, only half an hour away. If I made the trip, it would remind everyone of Watergate and the pardon. If I didn’t, people would say I lacked compassion. I ended their debate as soon as I found out it had begun. Of course I would go. p. 298.
19 He was stretched out flat on his back. There were tubes in his nose and mouth, and wires led from his arms, chest and legs to machines with orange lights that blinked on and off. His face was ashen, and I thought I had never seen anyone closer to death. p. 299.
20 “Henry,” I said when he came on the line, “I need you. The country needs you. I want you to stay. I’ll do everything I can to work with you.” p. 46.
21 “We’ll get along,” I said. “I know we can get along.” We talked about the two hats he wore, as Secretary of State and National Security Advisor to the President. “I don’t want to make any change,” I said. “I think it’s worked out well, so let’s keep it that way.” p. 46.
22 I told him about my promise to Betty and said that I had no ambitions to hold office after January 1977. p. 155.
23 Subjectively, I felt that what Kennerly had said made a lot of sense. Massive airstrikes would constitute overkill. It would be far better to have Navy jets from the Coral Sea make surgical strikes against specific targets in the vicinity of Kompong Som. p. 416
24 In Nixon’s case, that flaw was pride. A terribly proud man, he detested weakness in other people. I’d often heard him speak disparagingly of those whom he felt to be soft and expedient. (Curiously, he didn’t feel that the press was weak. Reporters, he sensed, were his adversaries. He knew they didn’t like him, and he responded with reciprocal disdain.) p. 53.
25 His pride and personal contempt for weakness had overcome his ability to tell the difference between right and wrong. p. 54.
26 The speech lasted fifteen minutes, and at the end I was convinced Nixon was out of touch with reality. p. 57.