The Pardon

President Richard M. Nixon's resignation created the Ford administration—and left Ford with the excruciating dilemma of whether to intervene in Nixon's legal fate in the Watergate scandal. In the book 31 Days, published this past April, author Barry Werth provides a day-by-day chronicle of how the question took shape, and how Ford—who died December 26 at age 93—arrived at the decision that defined his "accidental" presidency. The following is adapted from the book.

President Gerald R. Ford awoke early that Sunday, September 8, 1974, and took 8 a.m. Holy Communion at St. John's Episcopal Church, the "Church of the Presidents" across Lafayette Square from the White House. He prayed alone, asking, he said later, for "guidance and understanding," in pew 54, where every president since James Madison had worshiped. As he was leaving, reporters asked what he was doing for the rest of that day. "You'll find out soon enough," Ford said.

Back at the White House, he read over his speech—twice. "It is common knowledge that serious allegations and accusations hang like a sword over our former president's head," his speechwriter and top assistant, Robert Hartmann, had written. With a felt-tip marker, Ford inserted "threatening his health as he tries to reshape his life, a great part of which was spent in the service of this country and the mandate of its people." Morning sun slanted through the bulletproof windows along the Rose Garden. Just before ten—about an hour before he was to go in front of the TV cameras—Ford phoned the leaders of Congress to tell them what he was about to do.

Just 11 months before, Ford had decided to quit politics. He was House minority leader then—a likable legislative blocker and Republican Party workhorse—but he foresaw no hope in the reasonably near future of winning a majority that would elect him Speaker. Then Vice President Spiro T. Agnew was forced to resign after pleading no contest to bribery and tax-evasion charges. Congressional Democrats assured President Richard M. Nixon that no one but Ford could win confirmation, so he became vice president. And then the Watergate scandal metastasized, and Nixon resigned.

Thirty days before Ford took his place in the pew where James Madison had worshiped, he had become the only man in history to serve as president without having been elected to national office.

From the first, he faced a nation torn apart after a decade of Vietnam and more than two years of Watergate. With midterm elections less than three months away, and menaced by an angry snarl of problems—inflation, recession, a world energy crisis and a quickening threat of war in the Middle East—Ford's first priority was to bring his countrymen together. An accounting of events leading to his decision to pardon Nixon, based on documents and interviews with some of the surviving participants, suggests how monumentally difficult that would be.

After taking the oath of office on August 9 and asking the American people to "confirm me as president with your prayers," Ford had hit the White House hallways running, meeting with the White House staff, issuing marching orders to the White House economists, taking a round of ambassadorial calls. His newly appointed press secretary, Jerry terHorst, held his first briefing for reporters.

Washington was in a fever of tips, leaks, confabulations and rumors: that Nixon had pardoned himself and all his aides before leaving; that he had spirited the rest of the White House tapes with him to his estate in San Clemente, California. TerHorst told the press he'd been advised that Nixon hadn't issued any pardons, to himself or anyone else.

A reporter asked if Ford would consider issuing a pardon himself.

Ford had been asked the same question at his vice presidential confirmation hearing in the Senate. "I don't think the American people would stand for it," he had answered.

Without checking, terHorst said Ford still opposed granting Nixon immunity from prosecution.

"He is not in favor of immunity?" the reporter asked again.

"I can assure you of that," terHorst repeated.

But that question would hang over the Ford presidency for the next month, amplified by a host of Washington powers who had crucial and competing interests in how it would be answered. The Democratic-controlled Congress looked not only toward the midterm elections of 1974 but also toward the presidential election of 1976—and toward an electorate that seemed deeply divided on the question of Nixon's rightful legal fate. The Watergate special prosecutor, Leon Jaworski, agonized over the legal and moral consequences for Nixon, and for the coming trial of Watergate conspirators including H. R. "Bob" Haldemann, John Ehrlichman and John Mitchell, three of Nixon's closest aides. The holdover White House chief of staff, Alexander M. Haig, had brokered Nixon's resignation but did not consider the matter closed at that.

In fact, just eight days before the resignation, while still serving Nixon, Haig had urgently visited Ford at his office in the Executive Office Building to tell him that the president planned to step down, and he had presented Ford a handwritten list, prepared by Nixon's special Watergate counsel, Fred Buzhardt, of "permutations for the option of resignation"—ways that Nixon could relinquish the presidency yet avoid indictment. One of them was that, as Ford put it, "Nixon could agree to leave in return for an agreement that the new president—Gerald Ford—would pardon him."

Outraged that Ford hadn't thrown Haig out of his office—there was no way a Ford administration would survive the idea that he had ascended to the presidency as part of a deal—Hartmann and Ford aide Jack Marsh had insisted that Ford phone Haig the next morning to state unambiguously, for the record, and in front of witnesses, that Ford had made no commitments of any kind.

But the question of Nixon's legal status would not go away. And despite all the parties who had a stake in the outcome, Gerald R. Ford ultimately arrived at the answer very much on his own.

Ford was determined to put Watergate in the past, but he was forced into the fray on his second day in office.

Nixon, like every president before him, had laid claim to all his White House tapes and files—950 reels and 46 million pieces of paper. Lawyers in the special prosecutor's office—and defense attorneys in the Watergate coverup trial—believed that those records had to be available to them. After a Ford adviser discovered that some files had already been shipped to Nixon's California estate, the new president ordered that the remainder be kept in White House custody until their legal status could be sorted out.

From there, Watergate entanglements multiplied. Ford, despite his solid support for the Vietnam War, believed that the approximately 50,000 draft resisters and deserters who had left the country were also war victims. On August 19, in a Chicago speech before the Veterans of Foreign Wars (VFW), he proposed a program of "earned re-entry" to bring them home. While the VFW conventioneers greeted the announcement with stony silence, draft exiles in Canada—and, soon enough, others—voiced their suspicion that it was intended as a trade-off for a Nixon pardon.

Three days later, the House Judiciary Committee released its final report on Nixon's impeachment. The 528-page document stated unanimously that there was "clear and convincing evidence" that the former president had "condoned, encouraged...directed, coached and personally helped to fabricate perjury" and had abused his power, and should have been removed from office had he not resigned. The House approved the report by a vote of 412 to 3.

Philip Lacovara, Jaworski's counselor in the special prosecutor's office—a Goldwater conservative in a regiment of liberals—was adamant that his boss could not forgo a prosecution, but arguments for a pardon were being made.

Ford's nominee for vice president, Nelson Rockefeller, proclaimed that Nixon had suffered enough, and Nixon lawyer Herbert "Jack" Miller argued that his client could not receive a fair trial in the United States. In a memo to Ford, Nixon's old friend Leonard Garment, still the White House counsel, suggested that Nixon's mental and physical condition couldn't withstand the continued threat of criminal prosecutions and implied that, unless Nixon was pardoned, he might commit suicide. "For it to continue would be to treat him like a geek—a freak show," Garment said. "It was an awful thing to contemplate."

Garment stayed up through the night to write his memo, delivering it on Wednesday, August 28. Unless Ford acted, he wrote, "The national mood of conciliation will diminish; pressure from different sources...will accumulate; the political costs of intervention will become, or in any event seem, prohibitive; and the whole miserable tragedy will be played out to God knows what ugly and wounding conclusion."

Garment urged that Ford announce a pardon at a news conference scheduled for that afternoon.

At 2:30 p.m. that day, all three networks interrupted their broadcasts to carry Ford's news conference live from the packed East Room. Entering briskly, eyes ahead, Ford strode to the lectern, appearing relaxed and comfortable.

"At the outset," he said, "I have a very important and very serious announcement." Absent any prepared text, it was hard to know where he was headed.

"There was a little confusion about the date of this press conference. My wife, Betty, had scheduled her press conference for the same day. Obviously, I had scheduled my press conference for this occasion. So, Betty's was postponed."

Ford's eyes scanned the room. "We worked this out in a calm and orderly way," he said, leaning into his punch line. "She will postpone her press conference until next week, and until then I will be making my own breakfast, my own lunch and my own dinner."

There was light laughter, and then Ford called on Helen Thomas of UPI. "Mr. President," Thomas asked, "aside from the special prosecutor's role, do you agree with the [American] Bar Association that the law applies equally to all men, or do you agree with Governor Rockefeller that former President Nixon should have immunity from prosecution, and specifically, would you use your pardon authority, if necessary?"

"Well," Ford began, "let me say at the outset that I made a statement in this room in the few moments after the swearing-in, and on that occasion I said the following." Ford paused, looked down, shuffled through some cue cards, then read, slowly, "‘that I hoped that our former president, who brought peace to millions, would find it for himself.'

"Now the expression made by Governor Rockefeller, I think, coincides with the general view and the point of view of the American people. I subscribe to that point of view. But let me add, in the last ten days or two weeks I have asked for prayers for guidance on this very important point.

"In this situation," Ford declared, "I am the final authority. There have been no charges made, there has been no action by the courts, there has been no action by any jury, and until any legal process has been taken, I think it is unwise and untimely for me to make any commitment."

"May I just follow up on Helen's question?" someone asked from the back. "Are you saying, sir, that the option of a pardon for former President Nixon is still an option that you will consider, depending on what the courts do?"

"Of course, I make the final decision," Ford said. "And until it gets to me, I make no commitment one way or the other. But I do have the right as president of the United States to make that decision."

"And you are not ruling it out?"

"I am not ruling it out. It is an option and a proper option for any president."

Several voices rose at once. Ford had created an opening, and the reporters, accustomed to doing battle with Nixon, blitzed. Scanning the expectant faces, the president found Tom Jarrell of ABC.

"Do you feel that the special prosecutor can in good conscience pursue cases against former top Nixon aides as long as there is the possibility that the former president may not also be pursued in the courts?" Jarrell asked.

"I think the special prosecutor, Mr. Jaworski, has an obligation to take whatever action he sees fit in conformity with his oath of office, and that should include any and all individuals."

Nixon usually answered about 15 questions at his news conferences. After taking 29, Ford charged back to the Oval Office, seething. Although only eight of the questions had referred to Nixon, and the network summaries had emphasized Ford's statements on the economy, Ford felt besieged, and angry with himself for the confusion he knew his answers would cause. "God damn it," he recalled telling himself, "I am not going to put up with this. Every press conference from now on, regardless of the ground rules, will degenerate into a Q&A on, ‘Am I going to pardon Mr. Nixon?'

"It would come after he was indicted, which he was going to be," he recalled thinking. "It would come after he was convicted, which he was going to be. It would come after his appeals, probably up to the Supreme Court. It was going to be a never-ending process. I said to myself, ‘There must be a way for me to get my attention focused on the major problems before us.'"

By declaring first that he had "asked for prayers for guidance" and then that he wouldn't intervene "until the matter reaches me"—implying he might have to wait until just minutes before Nixon went to prison—Ford had staked out positions utterly at odds with each other. Yet he didn't know any way to avoid it. For him to say Jaworski shouldn't do his duty would be illegal and would undermine the entire Watergate prosecution. How, he wondered as he huddled with his top advisers, could he and the country not be incrementally swallowed by his dilemma?

Ford groped his way toward a firm decision, fighting, as Hartmann wrote, "for a little more time." He delegated someone to research, in secrecy, the scope of his pardon authority.

Soon after Jaworski arrived at work the next day, August 29, Lacovara handed him a confidential memorandum saying the president had placed Jaworski in "an intolerable position." By declaring that he reserved the right to pardon Nixon, yet also citing the special prosecutor's "obligation to take whatever action he sees fit," Ford had forced Jaworski's hand, telling him to make up his mind about—and take the heat for—indicting Nixon. From Lacovara's point of view, Jaworski needed to retaliate in kind.

Lacovara thought that the longer Ford waited to clarify his position, the greater the risk to the government's case against the six defendants in the coverup trial, which was scheduled to start in less than five weeks. "So I said in my memo, if President Ford is seriously considering pardoning President Nixon in order to spare him from criminal prosecution, he ought to make the decision now, as early as possible, before there's an indictment, and before we got onto the eve of trial," he says.

After considering his memo, Lacovara says, Jaworski "went to Haig and said, ‘Not only am I getting pressure to indict, but I'm also getting pressure from my senior staff to have the president—President Ford—fish or cut bait....The president needs to know that this is a call that he's ultimately going to have to make.'"

The next day, august 30, Ford entered the Oval Office and brought in Haig, who sat down across from him. Joining them soon were Hart-mann, Marsh and Philip Buchen, Ford's former law partner in Michigan and one of his most trusted counselors. Ford tamped and lit his pipe thoughtfully. "I'm very much inclined," he announced, "to grant Nixon immunity from further prosecution."

No one spoke.

"Phil, you tell me whether I can do it and how I can do it," he told Buchen. "Research it as thoroughly and as fast as you can, but be discreet. I want no leaks." Ford blamed himself for not having studied the issue more thoroughly before the press conference, and he believed his contradictory answers resulted mainly from his not understanding fully his role and authority. Buchen, having handled sensitive matters for Ford for more than 30 years, understood he wasn't being asked his opinion. "It was my job to go find out how he could do it, rather than whether he should do it," he recalled.

Ford swore them all to secrecy, emphasizing that he had not made up his mind. He listed the reasons in favor of granting a pardon: the "degrading spectacle of a former President...in the prisoner's dock"; the pretrial publicity; the press stories that would resurrect "the whole rotten mess of Watergate"; ultimately the possibility that Nixon might be acquitted, or, if he were found guilty, that strong public opinion would arise to keep him out of jail.

None of the group disagreed.

Hartmann challenged Ford's timing—before Ford had a clear chance to establish himself in office. "What everybody believes is that you may pardon Nixon one day," he warned, "but not right away, and not until there have been further legal steps in the case.

"And if you do," Hartmann said, "the professional Nixon haters in the press and in the Congress will go right up the wall. You're going to face a firestorm of angry protest."

Ford acknowledged that there would be criticism but predicted he could survive it. "It'll flare up and die down," he said. "If I wait six months, or a year, there will still be a ‘firestorm' from the Nixon haters....But most Americans will understand."

Hartmann thought sympathy for Nixon would build the longer he was out of office. "It's already begun," he told Ford. "Newsweek says 55 percent of the people think further prosecution should be dropped." Why not wait, he suggested.

"If eventually," Ford asked, "why not now?"

Buchen, too, asked if this were the right time.

"Will there ever be a right time?" Ford replied.

At ford's direction, attorney Benton Becker studied law books all through that Labor Day weekend, immersed unnoticed at the Supreme Court library. One 1915 ruling in particular impressed him.

The opinion in Burdick v. United States answered, in effect, a query Ford had posed: What does a presidential pardon mean? New York Tribune city editor George Burdick had declined to answer some questions before a federal grand jury about stories he had published—even though President Woodrow Wilson had issued him a blanket pardon for all offenses Burdick "has committed, or may have committed, or taken part in" regarding not only the published articles, but any others the grand jury might ask about. Burdick had refused the pardon because he believed accepting it would constitute an admission of a crime. The Supreme Court agreed, clarifying that a pardon "carries an imputation of guilt; acceptance a confession of it."

Becker believed that he had found in Burdick a rationale for pardoning Richard Nixon that would keep Nixon from being prosecuted yet also carry an admission of guilt, and he began to warm to the idea as a solution to Ford's dilemma. A pardon, unlike amnesty, instructed only that an individual would not be punished. Becker doubted Nixon would do anything that looked as if he were confessing—Haig had said Nixon would never confess or relinquish his claim to his records—but he thought Ford, by offering Nixon a pardon, could place the burden squarely on Nixon to accept or reject it.

The Tuesday following Labor Day, Becker presented his findings to Ford and Buchen in the Oval Office. Ford's power to pardon Nixon—at any time—of crimes he might have committed provided a whip hand that strengthened his resolve and his conviction that the country, despite a new Gallup poll that found 56 percent of Americans in favor of prosecuting Nixon, would support him.

"Look," Buchen said. "If you're going to do this to put Watergate behind you, I think you also ought to let me see how far we can go to get an agreement on the papers and tapes and have that in place at the same time." The attorney general had upheld Nixon's claim to his records; by linking a pardon to the fate of Nixon's materials, Buchen hoped to rescue Ford's leverage.

"Well," Ford said, "if you can get the papers and tapes question settled prior to the pardon, that's fine. Let's get it behind us. But I don't want to condition the pardon on his making an agreement on the papers and tapes, and I don't want you to insist on any particular terms."

With Ford resolved to move quickly ahead, Buchen had to conduct, in utmost secrecy, a three-way negotiation in which he would be discussing two momentous issues—clemency for a former president and the fate of Nixon's records, papers and tapes—with both the special prosecutor and Nixon's lawyer. Jaworski gave no indication he would oppose a pardon. Miller and Nixon agreed to yield a degree of control over Nixon's records to the federal government. It took days to hammer out a statement in which Nixon would accept blame, but by Saturday, September 7, Ford had what he needed. "Once I determine to move," he wrote, "I seldom, if ever, fret."

As he phoned Congressional leaders on Sunday to notify them that he would pardon Nixon later that very morning, one after another of Ford's former colleagues, conservatives and liberals alike, expressed dismay, anger and confusion. In the end their objections shrank mostly to this: it was too soon. Nerves were shot. Ford's urgency seemed imprudent, willful, more a personal statement of his need to make Nixon go away than a judicious act of state. Or else there had been a deal—which would have been another crushing blow.

At 11:01 a.m., Ford faced the TV cameras. "Ladies and gentlemen," he read, his jaw set squarely, "I have come to a decision which I felt I should tell you and all my fellow American citizens as soon as I was certain in my own mind and in my own conscience that it is the right thing to do."

After much reflection and prayer, Ford said, he had come to understand that Nixon's "was an American tragedy in which we have all played a part." He acknowledged that there were no precedents for his action, and said he'd been advised by the special prosecutor's office that bringing Nixon to justice might take a year or more. "Ugly passions would again be aroused," Ford said heavily, "our people again would be polarized in their opinions, and the credibility of our free institutions of government would again be challenged at home and abroad."

Nixon and his family had "suffered enough, and will continue to suffer no matter what I do," Ford said. With that, he read a single-sentence proclamation granting "a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he...has committed or may have committed or taken part in" during his five and a half years as president. And with a looping left hand, Ford signed the document.

With that pen stroke, Gerald Ford spent almost all that he had gained simply by not being Richard Nixon—the bi- partisan goodwill, the trust and affection of a divided nation that was willing to extend him the benefit of the doubt. Pardoning Nixon when he did, the way that he did, aborted the widespread hope—both shared and promoted by Ford, his team and most of the press—that his candor, decency and courage could clear up the wreckage of Watergate. "His action had quite the opposite effect from that which Ford intended," his biographer John Robert Greene wrote.

TerHorst, his press secretary, resigned in protest. Congress, freed of the necessity of further accommodation toward an unexpectedly popular leader, bolted. The Senate passed a resolution opposing any more Watergate pardons until the defendants had been tried, found guilty and exhausted all their appeals. The House passed two resolutions asking the White House to submit "full and complete information and facts" regarding how the decision was made. In addition to holding hostage Rockefeller's nomination as vice president, prolonging his confirmation until after the elections, Congress rebelled at the agreement for Nixon's tapes and records, perceiving it to be part of a bargain surrounding the pardon. Within months, it passed the Presidential Recordings and Materials Preservation Act of 1974, directing the National Archives to seize possession and control of Nixon's papers, records and tapes.

As Ford struggled to regain momentum throughout the fall, his clemency plan for Vietnam antiwar exiles fell flat. Less than one-fifth of those eligible signed up for the Vietnam Era Reconciliation Program, announced in mid-September.

On February 21, 1975, Mitchell, Haldemann and Ehrlichman were convicted on various charges of conspiracy, obstruction of justice and perjury and sentenced to two and a half to eight years in prison. A panel of circuit court judges denied their appeals, ruling that they had received a fair trial despite massive pretrial publicity.

After electoral defeats that fall, Republican conservatives began to criticize Ford openly. By late 1974, California governor Ronald Reagan stopped anguishing publicly about whether he should challenge a sitting president and began attacking Ford's policies in a weekly newspaper column. Ford's loss to Jimmy Carter in the 1976 presidential election set the stage for Reagan's victory four years later.

From 31 Days, by Barry Werth. Copyright © 2006 by Barry Werth. Published by Nan A. Talese Books/Doubleday, a division of Random House, Inc. Reprinted with permission.