This essay, by Anna Pomper, MPP '24, was awarded third place in the Ford50 essay contest.
I. Background
On August 1st, 1974, Vice President Gerald Ford received a visit from the President’s Chief of Staff, Alexander Haig. The “smoking gun tape,” a recorded conversation between Nixon and his previous Chief of Staff H. R. Haldeman, had definitively placed him at the center of a plot to use the CIA to impede the FBI’s investigations into the Watergate scandal, a bungled attempt to bug DNC headquarters. The Nixon presidency was over. On Friday, August 9th, Nixon resigned, and Gerald Ford became president, declaring “My fellow Americans, our long national nightmare is over.”
But the Nixon presidency, and his prosecution, still “haunted” the Ford white house. Ford asked Benton Becker, an aide and lawyer, to look into presidential pardons. Becker found the 1915 supreme court case, Burdick v. United States. In it, the court had ruled that pardons carried with them “an imputation of guilt, acceptance, a confession of it.” In the years following his pardon of Richard Nixon Ford would carry a scrap of paper with the Burdick v. United States decision in his pocket, a reminder of the justice he felt the pardon represented. He told Becker to make sure Nixon and his staff understood that from the point of view of the white house, an acceptance of the pardon would mean an admission of guilt. Becker went to meet with Nixon and his staff. The statement that Nixon produced stated:
Looking back on what is still in my mind a complex and confusing maze of events, decisions, pressures, and personalities, one thing I can see clearly now is that I was wrong in not acting more decisively and more forthrightly in dealing with Watergate, particularly when it reached the stage of judicial proceedings and grew from a political scandal into a national tragedy.
It was hardly a full throated acceptance of culpability, but it was the closest he had come to an admission of personal responsibility. On September 8th, Ford pardoned Nixon.
II. Analysis
Democratic Accountability
Ford’s pardoning of Nixon placed mercy in tension with democratic accountability. Danielle Allen notes that John Rawls’s “justice as fairness” is fundamental to democracy, writing, “as either James Madison or Alexander Hamilton put it in Federalist 51, ‘Justice is the end of government. It is the end of civil society.’” Under this definition, Ford interrupted democratic accountability as justice in pardoning the ex-president. The resignation letter of Ford’s press secretary, Jerald F. terHorst, sums this up best:
It is with great regret, after long soul-searching, that I must inform you that I cannot in good conscience support your decision to pardon former President Nixon even before he has been charged with the commission of any crime. As your spokesman, I do not know how I could credibly defend that action in the absence of a like decision to grant absolute pardon to the young men who evaded Vietnam military service as a matter of conscience and the absence of pardons for former aides and associates of Mr. Nixon who have been charged with crimes – and imprisoned – stemming from the same Watergate situation; These are also men whose reputations and families have been grievously injured. Try as I can, it is impossible to conclude that the former President is more deserving of mercy than persons of lesser station in life whose offenses have had far less effect on our national wellbeing.
terHorst articulates powerfully how, in commuting democratic accountability with mercy, Ford compromises Rawls’s “justice as fairness.” Rawls writes:
Justice as fairness begins, as I have said, with one of the most general of all choices which persons might make together, namely with the choice of the first principles of a conception of justice which is to regulate all subsequent criticism and reform of institutions.
The consequences of abandoning those first principles, Rawls wrote, is mistrust and the eventual dissolution of society. In the United States, the first principles are that “all men are created equal.” These first principles were compromised by Ford’s selective mercy.
The pardon was also an undemocratic decision in the sense that the polity was not, initially, aligned with Ford’s choice. In 1974, only 38% of Americans wanted to see Nixon pardoned. Historians believe that the decision to pardon Nixon was a major factor in Ford losing the election. But Ford believed the pardoning of Nixon was a matter of mercy, and, in this case, the considerations of mercy overwhelmed the public’s calls for justice. He said:
I do believe that the buck stops here and I can not rely upon public opinion polls to tell me what is right. I do believe that right makes might, and that if I am wrong ten angels swearing I am right would make no difference. I do believe that with all my heart and mind and spirit that I, not as president, but as a humble servant of god, will receive justice without mercy if I fail to show mercy.
Democratic Mercy
Ford argued that democratic accountability and mercy were, in fact, aligned, rather than in opposition, by casting the pardon as a choice to safeguard democracy, rather than undermine it. In his remarks announcing the pardon, he said:
My concern is the immediate future of this great country…My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed.
My conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to insure it.
In Grand Rapids, Donald Carey, Ford’s hometown minister, echoed the President. He argued that Nixon had been held democratically accountable, by congress and by virtue of his resignation. To denigrate the presidency further would undermine democracy, rather than uphold it. He argued that Nixon’s special treatment was aligned with the first principles of equality, because “the pardon is not for the President, it's for the office,” and the office, in turn represents all of us:
[The President] is the office as well as the executive. He's the Nation as well as a political and party leader. He is a symbol of our Nation, our tradition, our history. Do you think that we have not been humiliated enough? [If] you think that [there is] only real value in humiliating the Presidency any more, I know the horror and I share it. It isn't just Richard Nixon – it's the Presidency that's been shamed. I think we all know it. And [if] that Presidency is going to be something, there's no need to drag it any further, it seems to me. We've taken our punishment. We are not escaping our guilt. We are not escaping our wrong-doing. Do you really want more? Do you really think that more shame would help us as a nation? Do you think that more shame would make the Presidency more just, more significant and more important? Do you really think that more punishment would make us better?
In framing the continued punishment of the ex-President as collective punishment, Carey reframed the pardon as a collective mercy done, and thus an act of democratic fulfillment. Rather than undermine the nation’s first principles of equality through Nixon’s special treatment, Ford’s decision had protected the nation’s first principles by allowing the nation’s trust in its democratic institutions to heal. Bryan Stevenson writing on justice and mercy, reflects on the capacity of mercy to facilitate mutual healing, and, ultimately, to facilitate justice:
We’ve submitted to the harsh instinct to crush those among us whose brokenness is most visible. But simply punishing the broken – walking away from them or hiding them from sight – only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity.
Ford’s pardon represented a collective acknowledgement of our national brokenness without condemning the country to despairing, perpetual self-flagellation for that brokenness. In mercy, Ford facilitated a national acknowledgement of our reciprocal humanity, and a step towards repair.
III. Concluding Thoughts
Ford’s decision to pardon Nixon is only a semi-written chapter, a fact Ford acknowledged at his acceptance of the profile in courage award:
History has been defined as "argument without end”...No doubt arguments over the Nixon pardon will continue for as long as historians relive those tumultuous days.
Today, a new ex-president faces criminal charges, this time while undertaking a political campaign. Ford’s decision and precedent will be tested by contemporary, rapidly evolving circumstances. Presidents can still be held accountable without conflicting with Ford’s precedent, but this period will prove a perilous gauntlet for Ford’s decision. Perhaps Anthony Ferreira, an elementary school student from New Jersey who wrote Ford a response to his decision in 1974, said it best, echoing Ford’s own reflections on history as “argument without end”:
Dear President Ford,
I think you are half right, and half wrong.
Yours truly,
Anthony Ferreira
America is its own argument without end. The lesson Ford’s pardon of Nixon teaches us in the present day is the value of continuing that argument. If the intercession of mercy is a shared recognition of our collective humanity, then a continued argument is as well; in its best form, it is a promise to continue struggling onwards, towards understanding each other and understanding ourselves.
Works Cited:
Allen, Danielle. Justice by Means of Democracy. University of Chicago Press, 2023. John Rawls. A Theory of Justice. Cambridge, Mass: Harvard Univ Press, 1971.
Stevenson, Bryan. Just Mercy: A Story of Justice and Redemption. One World, 2019. Woodward, Bob. Shadow: Five Presidents and the Legacy of Watergate. Simon & Schuster, 1999. https://www.fordlibrarymuseum.gov/library/exhibits/pardon/005601018-007…
https://www.nytimes.com/article/trump-investigation-conviction.html#:~:….
https://www.jstor.org/stable/2183992
https://www.mlive.com/opinion/grand-rapids/2016/06/the_difference_betwe…
https://www-oxfordreference-com.proxy.lib.umich.edu/display/10.1093/acr…
https://www.law.msu.edu/faculty_staff/candeub/QueenvDS.Edited.pdf
https://www.fordlibrarymuseum.gov/library/document/0122/1252066.pdf
https://www.fordlibrarymuseum.gov/library/exhibits/pardon/044200000-004…
https://www.fordlibrarymuseum.gov/library/document/0047/phw19740918-02…