An assessment of the Nixon pardon: A 50-year perspective

0:00:00.9 Celeste: Good afternoon and welcome everyone and welcome back to the Gerald R. Ford School of Public Policy. I am Celeste Watkins-Hayes, the Joan and Sanford Wilde Dean of the Ford School. Thank you. Appreciate that. It is so great to see so many alums and students and faculty, staff, family, and community members here at this reunion event. Welcome. This event is part of our ongoing commemoration of the presidency of Gerald R. Ford. We've been able to participate in events with our friends at the Gerald R. Ford Presidential Library and Foundation. We've had a photo contest with GRF50 buttons, and be sure to grab some and wear them proudly. Tomorrow, we will honor members of the Ford family on the field during the football game at the Big House. And I believe we are joined today. I know we are joined today by Christian Ford, President Ford's grandson, who is a proud Ford School BA graduate from 2020. Christian, where are you? Yes, welcome. Welcome back. We also held an essay contest for students and recent graduates asking them to explore Ford's legacy in the context of today's political and policy environment. Of the many excellent essays we received, I'm happy to announce the winners. In third place is Anna Pomper who now resides in New York. In second place we have with us today Aishwarya Padmanabhan. Where is Aishwarya? Wonderful. Congratulations.

0:01:49.8 Celeste: And our first place essayist is Kelly Rogers Victor. Where's Kelly? There she is. So Kelly's essay will be published in Staten Hill, our magazine, and in the Ford Presidential Forum newsletter. Congratulations to all of you. Kelly will be helping with the Q&A session later, joined by our very own Professor John Hanson. And special thanks to our judges from the library and the foundation, Morell Lukey, Lauren White, and Jeff Pelett. So now to the discussion at hand. President Ford's pardon of Richard Nixon was one of the most consequential acts of his presidency. Here to talk about its ongoing, remarkably contemporary implications are our distinguished panelists, including Barbara McQuade, our friend and colleague from Michigan Law School, who will be moderating. We also have Jill Wine-Banks. We have Kimberly Whaley and we have John Dean on video. And I'm going to leave it to Barbara to make the formal introductions of these distinguished guests. For questions in the room, please use the QR code or submit using one of the note cards that are all around the room. If you're watching online, welcome. The question link can be accessed on the event page or in the event description on YouTube, LinkedIn, or Facebook. So now, let me hand it over to Barbara and to our panel.

0:03:28.1 Barbara: Well, thank you so much, Celeste. I am so thrilled to be here at the Ford School. My first memory of any sort of news event was Watergate. And so I'm so interested to be here. Just by fortune of my age, I was, nine or ten years old during the time of the Watergate hearings, the resignation. And, yeah. And got to look up to my friend here, someone that I admired as a real pioneer in the legal field. But I remember thinking, seeing the headlines every day in the Detroit News that landed on my parents' porch every day, talking about Watergate, Watergate, Nixon, Watergate. So I knew it was something the president had done that was bad, but I didn't really understand it. And so I finally asked my mother one day, I thought maybe I'm too young to understand mom, but what's Watergate? And then she said quite accurately but quite misleadingly, it's an office building. And I thought to myself, I really am too young to understand this, because I just don't understand what that is at all.

0:04:35.9 Barbara: But certainly, the pardon of Nixon, here we are 50 years later, is certainly worthy of reflection, now that we have seen some other cases that have come along that may give different context to what that meant when Gerald Ford said, our long national nightmare is over. Was it really over, or was it just beginning? And so we're going to unpack that a little bit today. With some of the key figures in the Watergate scandal and with someone who has really studied it as a legal scholar. So let me introduce our speakers. First, John Dean. I mean, John Dean, my gosh, he was on TV during the, for those of you who are not old enough to remember those hearings, John Dean was a major witness during the Watergate hearings. And that's because he served as counsel to the president, to President Nixon from 1970 to 1973. And John has joined us now on the video. John was not able to travel to be with us today, but did agree to join us remotely. And we're so honored that he's here. John is a very distinguished lawyer.

0:05:42.8 Barbara: He previously served as chief minority counsel to the Judiciary Committee of the US House of Representatives. He was an associate director of a law reform commission. He was an associate deputy attorney general at the US Department of Justice. And he was eventually implicated in that Watergate scandal, but he, unlike some, cooperated with investigators immediately. He cooperated with federal investigators in March of 1973 while continuing to work as counsel to the president until he was finally fired on April 30th of 1973. In June, he began testifying at those same hearings that I recall so well.

0:06:26.4 Barbara: He would later plead guilty to conspiracy to obstruct justice and he served four months in prison. During his time in prison, he continued to testify in the Watergate cover-up trials against president Nixon's top aides all the president's men including president Nixon's attorney general, his chief of staff and his chief domestic advisor. So how about a round of applause for John Dean.

[applause]

0:07:00.4 Barbara: And one of those prosecutors in that prosecution of all the president's men was Jill Wine-Banks. Jill was often the only woman in the room when she began her career as an organized crime prosecutor at the Department of Justice. She later served as a Watergate Assistant Special Prosecutor in that very same trial. President Nixon was actually named as an unindicted co-conspirator in that case. And the evidence from that case led to President Nixon's resignation.

0:07:32.7 Barbara: Before his resignation, Jill's team delivered a briefcase full of evidence to the House Judiciary Committee known as the Roadmap to Impeachment, and we still hear that term today. She was also a major player in the Watergate tapes hearing, famously cross-examining Rosemary Woods, President Nixon's secretary, about the missing eighteen and a half minutes in a key White House recording. So maybe we'll get to hear more about that today. How about a round of applause for my friend Jill Wine-Banks. Jill is also my co-host on the Sisters in Law podcast. So we just finished recording and we had a lot of fun doing that here today. And finally, Kimberly Whaley is an expert in constitutional law and the separation of powers with a particular emphasis on presidential powers and administrative agencies. She's a tenured law professor at the University of Baltimore School of Law, where she teaches constitutional law, civil procedure, administrative law, and federal courts.

0:08:42.4 Barbara: She also served as an assistant US attorney in the Washington DC office, and as an associate independent counsel in the Whitewater investigation. Graduate of our law school right across the parking lot, University of Michigan Law School, go blue. And her new book is,"Pardon Power, How the Pardon System Works and Why."So she will have some key insights about how the pardon power is supposed to work. And how we see it working in practice today. So thank you all for being here. How about a round of applause for Kimberly Whaley.

[applause]

0:09:20.4 Barbara: And I'm just delighted to be here. In fact, I chose this jacket to wear today, especially for the occasion. I know it's a little Ohio State Buckeye for this crowd to be here, but this summer I had a chance to visit the Richard Nixon Presidential Museum in Yorba Linda, California. And I happened to be wearing this because I'd been at Book Talk earlier in the day. And while I was at the Presidential Library and Museum, people kept asking me things like, do you know where the Watergate collection is? Or do you know where the gift shop is? I thought, I must look like I'm incredibly intelligent because people keep asking these questions.

0:09:55.0 Barbara: What do I look like I work here? And then I realized the answer was yes. All of the docents wore a red blazer and black pants. And so I thought in an effort to guide you back in time to Watergate, it would be appropriate to wear that very same outfit that the docents wear at the Nixon Presidential Library. John, why don't we start with you? I would love to hear for, five minutes, 10 minutes or so. Just some reflections of what it was like at that time. You are a reformed member of all the president's men, but you were there in the White House, in the Oval Office while all this was going. Can you just share with us some reflections of the time and maybe what the pardon meant at that moment in history 50 years ago?

0:10:42.7 John: Sure, Barb, I'd be happy to. In fact, I'll put my stopwatch on to make sure that I stay within your five-minute time. I regret I can't be with you guys. It would be fun to be there. I unfortunately have an event tomorrow that I just couldn't do the travel. So I'm coming to you from my CNN studio in my file room in Beverly Hills. Nobody said it would be easy here in Beverly Hills but anyway I what I plan to do is because this is not the most comfortable chair in my office is I'm going to for a while be live and then I'm going to just put up my avatar and sit in a very comfortable chair and listen and come in on another line. Actually I was thinking about this before your question is I hope everything we discuss today is really just an interesting historical reminiscence.

0:11:42.1 John: But I say that because I think pardon powers are something that should be in a remote corner of the presidency and not very prominent. They really shouldn't dominate a presidency. If Mr. Trump is re-elected, they're gonna be a very powerful part of his presidency because of presidential immunity. And we have a president who's shown no disposition to stay within the guardrails. But now let me get down to your question to stay within my time limit before I reflect too broadly on that. Yes, I was there. In fact, Jill learned about the board pardon from my wife, as I did at the same time. I had an office in the special prosecutor's office, a cubbyhole they gave me, or actually it was a guest office sometime. And Jill was there with a fellow by the name of Larry Eisen and Jim Neal, who was the lead trial attorney on a Sunday afternoon of the 9th, came in and said, listen, I've got news for you guys.

0:12:47.9 John: And he began explaining the pardon and my wife had just called to tell him that she'd heard it on the radio. So this, my wife was the first to inform all of us that Ford had issued the pardon. At the time, I had a special feel for it because I was, I never was in prison, Barb. I never made it that far. I was in the witness protection program and in the custody of the US Marshals. But I was not allowed to sleep at home anymore. The marshals had a, an arrangement with a, for an abandoned portion of a former army base. That they kept witnesses in. And I was a special witness in that I couldn't even talk to any of the other witnesses. So they really shoveled me every day, virtually, except on weekends, to the special prosecutor's office.

0:13:52.6 John: I remember my immediate reaction to the pardon is I was terribly relieved because I knew I was going to be a witness in the Nixon trials. Today, I'm familiar with some of the drafting that Peter Rient, one of the special prosecutors, had been drawing up potential indictments of Nixon before the pardon, and they were all centered around his conversations with me. So I was going to be a key witness. I knew that from my general discussion. So the fact that I wouldn't have to go one-on-one in another trial, I had one in front of me then where I would spend two weeks on the stand for the government. But I wasn't looking forward to even a more celebrated trial with a former president who had just been pardoned. So anyway, as I said, I had a special feel for it.

0:14:50.0 John: And the reaction was relief. I'll not have to be a witness. But wondering the point my wife had made to Jim Neal was, is he going to issue more of them? How can he just let Nixon go and everybody else who's involved in this, who all did it for him and for, on his behalf and wouldn't have done it otherwise. And he's walking and everybody else is paying the price. That's still an issue today. And I think that's why Kim's book is so important, because if Mr. Trump is elected and he has presidential immunity, the question is he might not be prosecuted for criminal activity. But those who carry out that activity for him, there's no indication that they're going to get immunity. Certainly the military, the famous example given as the immunity case was going up through the DC Circuit. Was, can the president direct SEAL Team 6 to take out a political opponent? And the answer under the Supreme Court's ruling is yes. All he has to do is issue an official order. Problem is, the military is not immune from criminal prosecution if they execute that order. So the pardon powers then become a real issue, and the Ford precedent is something that will... Probably be even deeply, more deeply examined than we do today. And if that happens, I think that's about, what is that? That's just about a little over five.

0:16:32.7 Barbara: Time. Yeah. Thank you, John. I hate to cut you off because it's absolutely fascinating, but we're going to hear more from you. And I look forward to hearing that. Well, Jill, let me turn it over to you because I've heard John say that when he heard that President Nixon had been pardoned, his reaction was relief. You as a prosecutor, I imagine you had a different reaction to that. Can you share with us your reaction and also just sort of set the stage and the scene of what it was like during that era in your work and your perspective on this?

0:17:05.8 Jill: So I was angry, very, very angry because I believed that Richard Nixon should have been indicted while he was the sitting president. I don't see anything in the Constitution that prevents that. I certainly thought that as soon as he resigned and was a private citizen, I went back to Leon Jaworski, who had replaced Archie Cox by then, and said, okay, you said that we couldn't indict him, that you allowed us, we negotiated, you allowed us to make him an unindicted co-conspirator and to get permission to give our evidence to the House Judiciary. That was in exchange for our not insisting on indicting. And the grand jury wanted to indict too. Can you hear my mic?

0:17:51.1 Barbara: The pack. Get the pack.

0:18:00.9 Jill: Thank you. Can you hear me now? Should I start from the beginning? Did you hear any of that? Okay.

0:18:06.4 Barbara: No, we got you.

0:18:08.1 Jill: Okay, you got me. So, now I forgot where I was.

0:18:12.5 Barbara: You were angry.

0:18:15.4 Jill: So I was angry, yes. Because really, especially at that point, the argument Leon had made was that you can't interfere with the conduct of the office of the President. And I was raised to respect the President no matter who it was. Once you hear the White Watergate tapes, you cannot respect the particular incumbent who did the things he did as you listen to him violating his oath of office and committing crimes. But I had been raised. And this is before I heard the tapes, so I really felt like we should indict him right then. Unfortunately, President Ford, who took over as soon as he resigned, and who, by the way, of course, replaced the Vice President Agnew, who had left just shortly before that because he had pled nolo contendere to a different crime, not related to Watergate, but related to his taking bribes. Both as governor of Maryland and then in the White House when he became vice president. So you can see how much corruption and crime there was in the Nixon administration. And Gerald Ford came in as a very respected and admired, honest person. And so I couldn't understand why he would pardon this person.

0:19:35.0 Jill: I believe that accountability is an important part of the rule of law, I believe that if we had gone to trial and the evidence was very clear, there's no question in my mind that he would have been convicted. I think that maybe it would have been a warning to all future miscreants in the White House. I have to say, I now wonder whether it actually would have stopped Donald Trump, who really believes that he is above the law, I'm not sure it would have actually done it, but back then, I really believed it was the warning you needed to not have this happen again, and I was very disappointed. We did research and in our research, and I can't wait to hear him say what's going on, but.

0:20:21.7 Jill: We really believe that once the pardon was issued, we could not indite him despite that even though the pardon was for crimes he may have committed before the date of the pardon. And anything in the future, I mean, it was the broadest possible pardon, and we just felt we were constrained by that... Let me go on to, you said sort of the ERA, and two things, one is the Army facility where John was housed was a place where I ended up with one of the other significant witnesses was Job magruto, and right before the trial started, he was in prison, a federal prison, but he was brought to Washington and placed in the Washington jail for me to start preparing him for trial, and the first day he came into my office, I said good morning job, and he put his head down on my desk and started heaving...

0:21:18.7 Jill: With sobbing, unbelievable tears, I thought, What is going on? And the only thing I could think was he had been raped in jail, that this was his first time in a real district jail, and I knew he would never tell me, so I went and got Tony pastor ready, who was sort of the father figure of the office, he was an IRS agent who worked with us. I said, Please go in there and find out what's wrong. Well, it turned out that he just didn't like being in jail where there were lights on all night and people were talking, he couldn't sleep, obviously, I couldn't prepare him for trial in those circumstances, so he was also put it at the same for... But they were not allowed to talk to each other because you wouldn't want witnesses talking to each other, but the fact that I had to call a man is because no male witness is going to tell me if I was right and he had been raped, he wasn't gonna tell me, but he might tell Tony, on the other hand, Witnesses frequently told me more than they would tell a man because they think women are better listeners, more sympathetic, more empathetic.

0:22:28.4 Jill: And so I often did get more information, but this was a time when only 4% of all lawyers were female, and of that 4%, almost zero were trial lawyers, so I was always the only woman in the room, whether it was in the courtroom or in preparation and Grand Jury and sexism, which we're seeing again with our last presidential debate, and our sisters-in-law episode today, we've talked a little bit about how Vice President Harris was treated in the debate setting and in other places, when we talk about what she wears, whether her earrings were actually feeding her information 'cause she's not smart enough to do it on her own, although obviously, that's clearly not true, and the sexism of the time was really rampant...

0:23:25.0 Jill: Not as bad as when Sandra Day O'Connor graduated and was offered a job as a receptionist. Even though she was first in her class, Ruth Bader Ginsburg, the same thing. Couldn't get a job as a lawyer. I did get hired, but it was... I would be told by one place, oh, you can't... We can't hire you because you'd have to travel and everybody else is a man, and we can't possibly let you travel with a man. So it was things like that that were going on at the time. My classmates, this was during the Vietnam war, would say, someone's going to die in Vietnam because you took their rightful place in the class, and they're gonna get rafted. Those were the kind of things I was asked in interviews, What kind of birth control do you use, how many children are you going to have... Those were questions that I had to answer or not get the job. So I'm very happy that now 50% of the law school is women. But I do hope that we can change. As anybody who is a sister-in-law now is, I'm a big fan of the era, and I'm hoping that that will be the last thing that President Biden does is to order it to be enacted and enrolled and published so that it becomes part of our Constitution.

0:24:47.6 Jill: Or I'll settle for the first act of President Harris doing them either way, I'd be happy, but it's gonna take more than the ERA, it's gonna take changing attitudes and changing culture. So I hope that we can do that as well.

0:25:04.4 Barbara: Great, and by the way, Jill has written an amazing memoir about this time called the WaterGate girl, because that's what the press called her at the time, lawyer, prosecutor in court with the men, she was the Watergate girl. But it's amazing memoir because not only is it very educational about the Watergate case, but it is also really an interesting insight into the era, I think so often, people like me who stand on the shoulders of Jill banks or the next generations of lawyers, don't realize the kinds of battles that people like Jill fought so that we can walk through those open doors. So thank you Jill for that.

0:25:46.9 Jill: Thank you Barbara.

0:25:51.5 Barbara: And Kim, I wanna talk with you a little bit about the pardon power. You have studied the pardon power as a legal scholar, and just thinking about, can you maybe set the stage for explaining to everybody what part are supposed to be and maybe how it's been used that may diverge from its original concept.

0:26:14.8 Kim: Yeah, well, first, thank you so much for inviting me here. It's such an honor. And John Dean, by the way, I actually wrote forward to this book and talks about the Jimmy half a part in talks about the differences between President Nixon and President Trump. And not to spoil the book, but he says One had into some kind of conscience and the other did not, which was kind of surprising, but actually about when Trump took office, I was reading the New York Times, and there was a statement in the Times that said, the pardon power is absolute, and that was the first time I wrote my first opinion editorial for the Baltimore Sun, and I've also gotten involved in over the years in television and podcasts and writing for various outlets, and this is my fourth book in the and Why series. How to read the Constitution and why, etcetera, because they're such a dearth of civic education in the United States, and we can't fix the car if we don't know how the car works, and so the part power was knowing that this election is coming up, that this editor actually approached me and asked to write it, and it sort of encapsulates so much of what's going on rear with democracy, which with polarization, with misinformation, with this, I think scary, a grand Iman of power, not just in the White House, but also in the United States Supreme Court.

0:27:38.7 Kim: So the pardon power goes back to pre-biblical times, the Code of Hammurabi, and of course, the most famous pardon was for Barabbas by Pontius Pilate that sent Jesus Christ to be crucified and birth to the Christian religion that was a part in the Romans at the time. The people could decide on a pardon, and then it went through common law England, and at the time, I think it was 600 where the first King started issuing pardons at the time, there was no criminal justice system. So jury trials did not come on the scene until the 13th century, there were no fourth, fifth, six amendments, there were no judges and appeals and all these mechanisms to ensure fairness, and so it was really a cycle of retribution among the Private parties. So if someone did it wrong against a family then the other, the family could exert vengeance against the wrong door, and it created this cycle, and then the king came in at some point and said, No. Actually, my power comes from God, the Divine Rite of Kings, any wrong against us, on one of my subjects is a wrong against me, so I can issue...

0:28:51.6 Kim: I can forgive. Issue forgiveness and pardon. There's a story in the book of a little girl, four-year-old who pushed her brother into boiling water, and a lot of the punishment at that time was execution for low level crimes her father secured a part in, so the primary objective of pardons is to show mercy in a context where there was so much injustice and not a mechanism to ensure fairness, and then the other would be mass pardons, what we call amnesty, the very first pardon issued by President United States was George Washington, after the Whiskey Rebellion taxes put on whiskey distillers to pay for the Revolutionary War, they got really angry. They rebelled. He pardoned them, of course, and that went all the way into the 20th century with Jimmy Carter, pardoning the people that dodged the draft in the Vietnam War. So that being said, there were certainly corrupt pardons by kings, pardon for people to basically get them to come to the United States to come to Australia, former convicts, to get them off the mainland, England. And then there were shenanigans around corruption and cronies and things like that, but even at the time of the ratification of the Constitution, Parliament over the years had imposed and attempted to impose limits on King George the third pardon power, and it was shared with the church.

0:30:19.2 Kim: So there was never this unlimited power in the king, in the way we just assume, there is such unlimited power in the presidency, there was actually vestal virgins could pardon. If you lock eyes with a vestal virgin on your way to the death chamber, that means God wanted you to be pardon. So there was lots of ways of getting part in common law England, and it was adopted at the ratification of the Constitution without much debate. There was a proposal to have Senate approval of pardons, there was a proposal to ban pardons for treason, but basically James Madison, Alexander Hamilton prevailed in this idea that you need to have... I think the assumption was a person of measured, thoughtful integrity, they all know each other, the folks that could be eligible for all those high offices one day, you're Supreme Court Justice, the next day you're president, so I think the idea was they needed that, and of course, that was before the Bill of Rights. There wasn't even this mechanism at that time in the early stages of the republic to have a criminal justice system, that was the head fairness in it. Fast-forward to the 20th century, and I would say probably starting with George HW Bush in the Iran-Contra fair, pardoning Casper Weinberger Secretary of Defense and others that could have implicated him, people believe in his own wrong doing all of a sudden now pardon folks, and they're not available to testify.

0:31:49.1 Kim: You cannot, as a prosecutor, both of you you can't sort of there any leverage on them, so that shut down that investigation, and then in the Bill Clinton numerous controversial pardons, I think the most well known was for Mark Rich, a financier who gave a lot of money to the Clinton interest, and there was even a congressional investigation and an investigation of the Southern District of New York, the Department of Justice, to see if that was a pay-per-play pardon, and then fast forward to Donald Trump. Where pardons in connection with the Mueller investigation, pardoning Roger Stone, pardoning Paul Manafort. And I think at Roger Stone's, sentencing, the judge, a federal judge on the record said, This was a silencing effort, I'm paraphrasing, but there was a recognition and he dangled pardons for silence. That's obstruction of justice. And then you fast forward, as John Dean said to the immunity decision, and you couple that with pardon, you couple that with this idea of unlimited pardons, and now you can commit crimes, the Supreme Court said, You can commit crimes using official power, which is the scary stuff that's the stuff you have control over.

0:33:09.6 Kim: Your Commander, the cheat and Panera Chief Department of Defense, the military, the FBI, the CIA, and all the spy investigation apparatus is... The IRS, all this stuff where you could really abuse the power, that's the stuff you can now get immunity for, but you have to get someone to execute the order, as John said, and you couple that with the pardon, and that makes it possible, and Donald Trump said pardons were his favorite thing, because there was no accountability. 60% of his pardons were in the last few days of office, Rudy Giuliani reportedly peddle them for 2 million a pop. There are people in Washington, Alan Dershowitz, Harvard Law professor, that are getting paid money to peddle pardon, so people with power and influence have more access, and I would argue that mercy idea is no longer really functioning... We talk at length, but on my last point on the Ford part in... I think it's not just what happens with Donald Trump, it will... If it's Kamala Harris, will it be pressure in the light of the Ford pardon, of Nixon to pardon Donald Trump for the January 6 in the mar-a-lago cases, that I think there could be political pressure from the Republican side for her to do that.

0:34:25.2 Kim: So this isn't going away, regardless of who's president, the parting question, I think, as I said in the beginning, is really the heartbeat of so much of what we're talking about right now.

0:34:34.9 Barbara: Well, speaking of long national nightmare, that would be the scenario. Wouldn't it? John, I'd love to come back to you. Your Counsel to the President in 1973, Richard Nixon is asking your advice, and you can see into the future that the Supreme Court would say you're immune from prosecution from anything you do in your official duties. For those of us who are less familiar with exactly what Richard Nixon did, would you describe his conduct and maybe make the case that those were official acts that would be immune from prosecution today, meaning what was the point of a pardon anyway?

0:35:18.1 John: The largest book I've written is a book that relies on all of Nixon's Watergate conversations, it's called The Nixon Defense. It's a book I would not have done had I known what I was getting into, that I would be involved in transcribing all of his watergate related conversations, there're about a thousand conversations. So I started it and realized, Well, I need the conversation in front of that one, in the front of that one, then the one behind, and soon I realized I need to do all 1000 conversations. So I assembled a team of grad students, and it took four and a half years to working with the few, maybe maybe a 100 good decent transcripts, may be 150 total, with some FBI secretaries taking cracks at it where they didn't even know who was talking... The audio on the Nixon tapes varies tremendously from each venue that had taping capability.

0:36:25.7 John: I was White House counsel, and fortunately, every time I went in to talk to the President while I had the title, I really wasn't the President's legal advisor. That remained in the hands of my predecessor, John Ehrlichman, and I reported to Ehrlichman and the chief of staff Haldeman, but late in the game, the president did call me and I started having one-on-ones with the President, and thank God every one of my conversations with him is recorded, but for two that are missing, and I think I know why they're missing because I testified about them at the Senate, and suddenly after that, having years later talked to the Secret Service, that tape was...

0:37:12.6 John: The entire reel was requested and never appeared again, and I'm still hopeful it'll come out of somebody's attic some date. But anyway, to your question, what are the offenses? Well, it's a long list. When I did the tapes, I found Nixon committing crimes that I was unaware he had even been involved in... What I was asking earlier by you Barbara, so tell people, what Watergate was... Many people say it was just a bungled burglary that was covered up, it was much more... It was the name of a scandal that represented a lot of abusive power, some of which was criminal, when Ford's Parton really defines Watergate well, because he pardons him for all crimes he may have committed during his presidency, and he doesn't specify them because he didn't know them all. But he gives him a blanket pardon for far more than a bungle burglary cover-up, which is what in fact, it is just the label it was put on that activity was some of that official conduct, you bet, for example, the smoking gun tape or Which Nixon would be forced to resign from Office, is a recording of the Chief of Staff Bob Haldeman, telling the President that his former Attorney General recommends that they tell the CIA, calling the CIA and have the CIA direct the FBI to stop their investigation of people that could have CIA connections.

0:39:00.5 John: And Nixon even leaps on that and takes it further than even the recommendation of Haldeman and it says, aha, this is how I can cut this off. And nobody other than the president at that point had that kind of power other than through an official order to direct the CIA to do anything. So Haldeman explained when he called the CIA in that he was indeed acting at the behest of the president. That's certainly pure official conduct. And for that, he would have been immune. And there are countless examples of how, indeed, had that immunity existed, the event could have, the activity could have been cast as certainly a core activity, if not in the outer perimeter, as the court discusses, of his official conduct. So I think that, by and large, virtually all of his Watergate conduct would be immune activity today.

0:40:08.2 Barbara: Yeah, and would you have thought that at the time in 1973?

0:40:13.2 John: Would I have thought that? No, I would have never dreamed that. To me, I was, thinking about preparing to chat about this, I pulled out the indictment that was drafted by Peter Rehan to see what, how they were thinking about going after Nixon. And it's really my warning Nixon, there's a cancer on his presidency, trying to get him to end the cover-up. And they used that as the, that would have really covered, it was an hour and 50-minute conversation. One hour of just Nixon and myself, the last 50 minutes, Haldeman was called in, has me repeat to Haldeman some of the things, and then gives orders that are up at the Haldeman level to execute and what to do. That, as I say, most of that, I think all of it could be cast as official conduct. At the time, I thought it was pure criminal conduct, 'cause it was at that time, and still is.

0:41:21.4 Barbara: Yeah, it sounds like official conduct to me. Yeah, I wanted to ask you to react to that... Well, same really, I mean, today, we know from the Supreme Court's decision that official conduct by a president is immune from prosecution, if it's within the core of the responsibilities, and then even things that are outside the core have a rebuttable presumption of immunity, in 1973, did you think that anything that Richard Nixon had done was immune from prosecution?

0:41:50.2 Jill: Absolutely not. And I would go a little further, because the Supreme Court went out of its way to say, not only are core responsibilities and some that are rebuttable presumptions, they said you can't use evidence of that, even for things that aren't a core responsibility. To me, the things that Richard Nixon did, the things that Donald Trump is alleged to have done, are clearly political candidate conduct, not presidential. And if you can't be charged for having a conversation with your Attorney General, because his a core responsibility is to run the Department of Justice, you appoint the AAG, but you're talking to him saying, lie. Say there's fraud, even though we both know there's no fraud. You can't look at his motives for those conversations. It makes virtually everything unenforceable. I think that Smith has done a good job of reframing the indictment with the superseding indictment and saying, well, the conversation with the Vice President were the Vice President as President of the Senate, not as my Vice President, and therefore it's an unofficial conduct.

0:43:07.6 Jill: I don't know what the Supreme Court, when they review that, is going to say. If the President is talking to his Chief of Staff and talking to his Chief Domestic Advisor and to his White House Counsel, are those official conduct that, even though they're plotting to do what they were doing, which was to cover up and to pay hush money, oh, does that sound familiar to you, hush money? Maybe it does. He said, yeah, it would cost a million dollars, and Nixon says, well, I know where I could get it. Those kinds of conversations should not be excused from culpability, from prosecution, from accountability. Nixon did have a sense of shame, and he did when confronted with facts. I have to, when we're talking about the era, back then there was only one set of facts. There were no alternative facts. There were three networks. They all had the same facts. There was no social media. There was no Fox. There was no MSNBC. There was one set of facts, and people believed them. The three top Republicans in Congress went to him when we won the Supreme Court case and got the smoking gun tape. It became public.

0:44:26.9 Jill: They saw it, and they went to him and said, you know those articles of impeachment, which had only been passed by the judiciary. They hadn't gone to the full House. They will be passed by the House, and we, the Senate, are going to, we're gonna convict you if you don't resign. It was the Republicans who went to him and said that, and he said, okay.

0:44:47.1 John: Jill, I have to correct you on that. I talked to Senator Goldwater at length about that meeting. He said, we were told by Al Haig before going in to visit with the president, do not tell him he has to resign. He's already reached that conclusion, and if you tell him, he will get his back up and do exactly the opposite.

0:45:07.3 Jill: Interesting, but he did have the sense of responsibility to take that. It's also supposedly true that he didn't, after he said he was resigning, and he did announce his resignation the day after this meeting, effective 24 hours later at noon, he didn't have the courage to tell his wife and his daughters. He asked Rosemary Woods, who he had thrown under the bus by accusing her of having created the 18 and a half minute gap in this key tape. He asked her to inform them that he was resigning and moving back to San Clemente.

0:45:44.4 Barbara: Wow. I really just want to do a little aside here on Rosemary Woods while we're on the topic. She was the secretary who was testifying about this missing 18 1⁄2 minutes, and can you just tell us a little bit about the cross-examination and recreating the posture that she claimed resulted in this erasure of 18 and a half minutes 'cause I think it was a brilliant legal strategy, and I'd love for you to talk about that.

0:46:11.9 Jill: Sure. Well, first of all, let me say, in this world today, she would have been chief of staff as opposed to being a secretary, and when you say secretary, it may conjure an image that is different than her role was. Because she was an advisor to him, and in writing my book, I did listen to conversations that weren't relevant to the Watergate scandal, but just conversations between the two of them. And he really did consult with her and ask her advice, and she played a much more significant role than one, and she also had a lot of secretaries working for her. She had a staff. She was not like a secretary.

0:46:49.0 Barbara: A typist.

0:46:50.9 Jill: Yeah, she was not a typist, although in this case that we're going to talk about, she was a typist. She was assigned to transcribe as best she could, and as John pointed out, these tapes are very hard to hear. These are not crystal clear. It's not like modern technology. The bugs were put in various places in the office, and sometimes he would put his feet up on the desk, and it would obliterate all conversation because you could hear the slam or Manolo, who was his valet, would put down a cup of coffee, or the band would play outside the window of the Oval Office, and that would obliterate conversation. But anyway, we subpoenaed originally nine conversations, mostly based on John Dean's testimony. And he has, guys, the best memory of anybody you will ever meet as a witness or as a human being.

0:47:47.8 Jill: He was escorted out of the White House without any documents. He testified without knowing there was a taping system, and he testified to details that you would be shocked that someone would remember, but he was excellent in his memory. And so when we knew we had to overcome executive privilege, we knew we had to show that things were within the crime-fraud exception, we thought, well, we believe John Dean, and so when he says, I told the president on March 21st that there was a cancer growing on the presidency, that was one of the tapes we subpoenaed. And by the way, it was the first tape we listened to. The first tape that we subpoenaed, 'cause they were more in sequence, was a much earlier tape, and that's the tape that ends up with the 18 and a half minute gap. And so my theory is, finally he realizes he's gonna have to give us the tape, so he's gonna listen to them. And the first tape she's working on is this tape, because he wants to see what it says, and it's hard to hear. And so Rosemary tells a story, and I'm gonna try to be physical, but all of you can come up here later, there's a picture of the Rosemary stretch in here.

0:49:08.2 Jill: And so she's blamed for this. In the first set of hearing, we asked for nine, and we're waiting for them to be turned over when they finally decide they will turn them over. And then Fred Buzhardt, J. Fred Buzhardt, the person who was responsible for the tapes hearing, calls us to court and says, well, two are missing. One was recorded from the White House residence, and there's no taping system there, and one, there was a technical malfunction These were old-fashioned reel-to-reel things, and when one reel ended, it was supposed to flip to a second machine. It didn't work, and that one fell in the time period before the Secret Service caught it and put a new tape on. The hearing ends, and in the worst trial strategy you could imagine, about a month later they come back, oh, there's a third tape with a problem, it has an 18 and a half minute gap, and there's no innocent explanation, and only Rosemary Woods can explain it.

0:50:08.2 Jill: So in the first hearing, I had questioned her, and as is common for trials, if a witness is yours, if something else comes up, they say you're a witness. So now she's a suspect in what is obviously an obstruction of justice, the destruction of evidence, and this is the day before Thanksgiving, so it's Wednesday, I spend the entire Thanksgiving trying to prepare to violate the first rule of trial law. Don't ask a question you don't know the answer to.

0:50:38.1 Jill: But I'm going to have to say, please, Ms. Woods, tell me what happened, and I have no idea what her explanation is going to be. Then she testifies, she says, well, I was listening and trying to transcribe, it's very hard to hear, but I was doing the best I could, and the phone rang, and I had to answer the phone, and I must have accidentally hit the record button instead of the stop, and I had my foot on a pedal, my left foot is on the pedal, and I reached for the phone, but I kept my foot on the pedal, hit the wrong button, but it kept going because I had my foot on the pedal, and I was hitting record, and so that's how it happened. I said, well, how far away was your phone, how big was your desk? So she's typing here at her typewriter and listening to the thing, her desk is perpendicular, and more than six feet away, and she's a very petite woman, she has to reach for her phone, and she had already in the first hearing said her left foot was on.

0:51:36.8 Jill: So she's like, if it was her right foot, think how much further you can go with your right foot, but with your left foot, you're, so she's like, so you get the picture, she's holding on for dear life with her right hand, because, so in the courtroom, she gives this testimony, and I go, I can't visualize this, I ask the White House to bring the machinery in, it's put on the edge of the witness box, and she puts on the headphones, and she puts her foot on the pedal, and I said, okay, what happened next? And she goes, she lifts the headphone, I can't hear you. I said, okay, you're gone have to take them off for the purposes of this. Put them down, she puts them on the witness box, I ask her a question, and she says, well, first I had to, and she moves her hand this far to point to the headphones, and with that tiny movement, her foot came off the pedal, and the tapes stopped cold.

0:52:33.9 Jill: The jury box was filled with the press, who ran out in days before cell phones to go to a bank of payphones, everybody remember what a bank of payphones is, to call in the story, and I'm a little, kind of, Perry Mason does it every night, but I've never done this before, and I said, but your foot came off the pedal, you're not erasing, she said, well, it's different in my office, and I said, well, judge, maybe we should go to her office, and let her do it there, and for some reason, no one, her lawyer didn't object, the White House lawyers didn't object, the judge didn't object, so now I'm going to the White House, adjacent to the Oval Office, for the first time in my life, and I have to walk up, if you watch TV, you see the walkway that people go up, and then the Marines are standing guard at the entrance.

0:53:21.0 Jill: And I'm escorted into a room with lots of people at that point, a friend of hers, oh, I wish I could remember her name, it's a really strange name, sounds very southern, but she was from New York, a friend of hers was there, the wife of one of her lawyers was there, it was quite a scene, and she does manage, as you'll see in the picture, she does manage to do what she said, without, now, there's no way she sat like that for 18 minutes, that's impossible, it couldn't have happened, but she did manage to reach the phone, what I noticed was, and we weren't allowed to bring a photographer, we had to use Ali Atkins, who was the White House photographer, the phone had been moved slightly closer to the middle of the desk.

0:54:10.9 Jill: I could see the trail, but that picture came out as a flash, it didn't show, and unless I testified, which meant I couldn't be the lawyer, there was no way to prove that it had been moved, so we dropped that as part of the evidence, and the next day, the photographs of her doing this were front page of every news magazine, every newspaper, and she testified in court, and at one point, she says, well, you made me do that, you made me pose like that, and I said, I beg your pardon, but that isn't, and Judge Sirica interrupts and says, now, ladies, we have enough problem in the courtroom without two women fighting. I rest my case.

0:55:01.0 Barbara: Wow, history, it's all, I've been brought a copy of the Watergate girl, really great stuff and details about that story there. Kim, let me ask you what will be the last question, and then we're going to open it up for your questions. Just back to the pardon power, historians like to play this game, what if, what if things had been different, how would that impact life today, so what if Gerald Ford had not issued that pardon for Richard Nixon, and Jill's indictment would have gone forward, and according to John Dean, there had been crimes committed, and according to Jill, with very strong evidence, perhaps resulting in a conviction and a prison sentence for Richard Nixon. How do you think that would have been different for perhaps the Trump administration or other presidents going forward?

0:55:52.1 Kim: Well, two points. One is just has to do with law in general, which is, as it's about incentives and disincentives, right, so if you see a speed limit, you'll go through the speed limit until you get that dreaded thing in the mail, 'cause the little, the machine caught you and you get the $150 ticket, at least in Washington. So I do think it's conceivable that had he been indicted, it would have been a disincentive for future presidents to cross boundaries, even before the immunity decision, because there's so much secrecy around what happens in the White House. I mean, there's the Freedom of Information Act, but there's a bunch of exceptions, and now I kind of wonder if even if executive privilege, that which produced the Nixon tapes for, in the context of a criminal investigation and that balancing test, now the Supreme Court has said you can't use any evidence of official acts if that's eclipsed that ruling, that it's all gonna now be not only green-lighted but secret.

0:56:58.5 Kim: As a matter of law, however, the only thing that Article II of the Constitution that has the pardon power in it says that the president shall have the power to grant pardons and reprieves except in the case of impeachment. Now that impeachment part came from a limit on the king's pardon power, but the mythology around the pardon, which is why I wrote my first op-ed that's now turned into a book all these years later, is that somehow those words, pardons and reprieves, have no constraints and no limits. Everything else has constraints and limits. The power to execute the law...

0:57:37.0 Kim: To take care that the laws are faithfully executed, the power of commander-in-chief, all other powers are constrained by other parts of the Constitution. And there's this mythology that pardons somehow are king-like beyond even a king. But the reason I think the Ford pardon, as a matter of law, was so important is the Supreme Court has never held, or had occasion to hold, that you can pardon for crimes that have not been indicted. It's possible that you could take that word pardon and say, that assumes you have an indictment or even a conviction. The DOJ pardon guidelines, which are not binding, just like Georgia pardons, Donald Trump's been indicted in Georgia, you're not eligible until five years after you've completed your sentence. So and that's the case in various states.

0:58:30.9 Kim: There are constraints on the pardon power. Across the globe, there's constraints on the pardon power. So the Ford pardon has now almost, as a matter of historical precedent, has morphed its way into constitutional precedent with this assumption that you can pardon people before there's been an indictment. And I think Donald Trump did that. And then we're moving forward on that meta-assumption. And I would say this mythology around the pardon power has even made its way into DOJ. I mean, I listened to, as I'm sure many of us did, live the immunity oral arguments. And the question of pardons came up. And counsel for Jack Smith or the Department of Justice didn't push back on this notion that pardons are absolute, where there's no other part of the Constitution that's absolute so.

0:59:24.1 Barbara: Even if you're paid for it.

0:59:25.4 Kim: Yeah, even if you're paid, if it's a bribe. I mean, you can be expressly impeached for bribes. And the impeachment clause says you can be actually indicted and convicted and sentenced for acts for which you're impeached, presumably official acts, because you can impeach for official acts. So the court kind of wrote that impeachment part out of the Constitution. But this idea around pardon, I mean, just think logically. I think if a president were to say, I'm only gonna, I'm gonna pardon people in the federal system, that's the only thing that presidents can do, but only people of this race or ethnicity. That would raise an equal protection challenge. You would say, no, that violates the 14th Amendment. The court has held that you can't force a pardon on someone.

1:00:13.9 Kim: You cannot say, I'm forcing you to take this pardon, because that way you no longer have your Fifth Amendment privilege against self-incrimination. The court has said, you can't pardon someone. And as part of that pardon, if they paid a criminal penalty as part of their sentence, you can't force the Treasury to reimburse that penalty, 'cause that would impinge on the appropriations power of Congress, the power of the purse. So one of the reasons for the book is just to debunk, again, this mythology that we walk around almost like zombie status, like this idea that, "Oh, the pardon is a king-like power." No, I argue it's not a unlimited monarchy. It's not a triangle with the king at the top handing out goodies to the subjects. It's an inverted triangle, where the people are at the top, and the president gets whatever power we allow, and we can hold them accountable. And the pardon really is this dusty corner of history and the Constitution that gets very little scrutiny and I think, is deeply misunderstood. So that's what I think is the serious legacy of the Ford pardon.

1:01:27.8 Jill: Before we take questions from the audience, I just wanna say something on behalf of President Ford. Keep in mind, I do not approve of what he did. I think it was wrong. I think it's had historic consequences that are bad. I think he lost the election in part because he did this. But he sent a young lawyer named Benton Becker to San Clemente to offer Nixon the pardon. And he insisted, he, President Ford, insisted that Benton Becker take with him a copy of a Supreme Court case called Burdick, because Burdick says that if you accept a pardon, you are admitting guilt. And he wanted to make sure that, in exchange for giving the pardon, that Nixon was admitting guilt. And I cannot do it justice, but the museum in Grand Rapids, the Ford Museum in Grand Rapids, probably has a recording of Benton Becker talking. And it's a quite moving and sympathetic portrayal of Nixon realizing that he is going to accept and that he is admitting guilt. And Benton did a great job of presenting it. So I do think that whatever, and at the time, we thought that there was a quid pro quo, that there was some prior agreement that may have involved Leon Jaworski, may have involved Nixon, may have involved Ford.

1:02:57.1 Jill: There's no evidence of that. Let me just say, I'm just saying back then, we were very suspicious. But I do think that Ford acted out of a genuine belief that he was doing the right thing. He put this nightmare behind us by letting it go. Which is what you were mentioning, Kim, about will, if President Harris is president, will she be under the same pressure? And I personally will go to her and beg her not to do that.

1:03:28.7 Barbara: Well, good. Let's hear some questions from our audience. And I think, Kelly, we're... Gonna be our readers?

1:03:40.1 Kelly: So we have one from Shell Stark, who's a UM staff and an alumnus. I don't know my Latin. What do we know about whether Nixon and Ford decided on the pardon before Nixon resigned?

1:03:53.4 Barbara: John, do you wanna field that one? Were you able to hear the question?

1:03:55.2 John: Sure. Yes. I know a lot about the process of the pardon. My successor, Len Garman, was directly responsible for Ford addressing the pardon question. Len and I remained friendly. We talked for years about it, many times revisited the subject. He wrote a memo to Ford's counsel, a fellow named Buchan, where he argued that Nixon should be pardoned. And Len did that out of both the humanitarian feeling for his former law partner, Richard Nixon, as well as he then argued on a very practical side that Ford would not be hampered in his presidency as he was at the time with constant requests that actually went up to the president's level for decision-making on what tapes or what documents should or should not be released for further investigation by not only the special prosecutor, but the House impeachment inquiry, the Senate Judiciary Committee was now taking a look, what have you. So there was no conspiracy. And Al Haig, who is the one who informed Ford that Nixon was going to resign, has made a convincing case.

1:05:30.9 John: Al is not one of my favorite people. But I do believe that, and there's nothing on the tapes at that point that would suggest that there was a deal either. But I think that Ford acted for very practical reasons because it was truly affecting his ability to govern. And it was going to consume his presidency, not unlike it had Richard Nixon's. So he ended the national nightmare by granting the pardon and stopping all the inquiries. I think that's the...

1:06:08.7 Jill: And 50 years later, we have a new national nightmare because of it.

1:06:13.5 Barbara: John, you have one?

1:06:15.7 John.: Yes, thank you. This question also comes from an alumnus, Katie Waters, who wants to follow up on the Burdick versus US case. And she's asking for some speculation as to whether, if that decision had never been made, whether events would have transpired differently during the pardon. It may be a difficult question. But if Ford was using it as a justification to proceed with the pardon, would we have seen a different course of events?

1:06:43.8 Jill: Why is? I don't know.

1:06:46.5 Kim: I wanna just add a footnote to the Burdick. I mean that, I that is, I think there's some legal ambiguity around whether acceptance of a pardon means an admission of guilt. It's actually dicta in Burdick, meaning it's in the opinion, but it's not the sole decision. And I would just say, back to the rationale behind pardons, I mean, I argue in the book that as much as pardons can be abused, pardons also offer a possibility of a president creating more justice within a very unjust criminal justice system. So because you don't have Congress, you don't have to deal with bureaucracy, a president could come in, a Kamala Harris could come in, and say, we have tremendous racial injustice. There's no parole in the federal system anymore since 1984.

1:07:42.2 Kim: That the federal habeas corpus law, it makes it difficult, if not impossible, to get out of prison, even if you have exonerating information. And the Supreme Court has said, because there's always the pardon. So it's very hard to address injustices in the federal system. And we are paying, between federal and state taxes and prisons, $8 billion a year to keep people in prison. There are definitely people in prison that don't belong there, and it's not a good use of money. So a long way of saying is, if a president were to say, I'm gonna use the pardon as a mechanism of exoneration. We now have technology, DNA evidence, to demonstrate maybe people are on death row who should not be on death row. For those people, the acceptance of a pardon would be the opposite. So I do think we've heard, and I've talked to people who prosecuted, or were in charge of, or at the top tier of the congressional investigation into January 6th. Yeah, there were six members of Congress who asked for pardons, in addition to John Eastman and Rudy Giuliani, people involved in January 6th. So it's hard to say if you're gonna do that.

1:09:00.2 Kim: There must be some sense of guilt that's associated with. So Burdick might have a role for certain kinds of pardons, but I think as much as the pardon has a mechanism, ability for extraordinary corruption, it could do a great bit of good as well. But since Reagan, with the exception of Presidents Obama and Biden, every president has run on being tough on crime. So the ability to use the pardon in a way that's beneficial, I think, is just politically difficult. But I have one other thing. I was in the CNN green room on Monday talking about the pardon power on Jake Tapper's show, and I ran into Doris Kearns Goodwin, who is, of course, a famous Lincoln scholar. And she said one of the things, I mean, Lincoln liked the pardon just like Donald Trump liked the pardon, but the reason Lincoln liked the pardon is because there were very draconian sentences for people within the Union Army who just made just understandable mistakes, fell asleep on the job. And so he said the pardon actually gave him the ability to show mercy to some of these soldiers, to give comfort to some of their families, their mothers, when at the same time there was this tremendous loss and mass slaughter and death. So I thought that was quite interesting. It still holds some benefit in the right hands.

1:10:21.4 Jill: And Ford did think that Nixon had suffered and that he was in a very delicate mental condition. And so it was an act of mercy. And to your point about Burdick, there is a 1933 case, I think it's called Wilson. Is that the right name? That says, no, it isn't an admission of guilt. So there is, but that's a circuit court case, not a Supreme Court case. So it was, I can't predict how Gerald Ford would have actually felt in terms of would it have made a difference, would he have done it, if there was no Burdick that had given him the comfort of knowing he was getting something in exchange. David Frost, now Sir David Frost, is doing a. He's dead, but his tapes, his interviews are being used to create a documentary on different things from when he interviewed people. And the Nixon Frost tapes are gonna be used, in which, of course, Nixon remains defiant. If the president does it, it's not illegal.

1:11:29.2 Kim: One other not on.

1:11:29.7 Barbara: Sure, turns out he might've been right. Looking into the future.

1:11:31.7 Jill: Yeah, right.

1:11:34.0 Kim: One other note on mercy pardons. I think the other thing that could come up is a pardon for Hunter Biden. President Biden has said he wouldn't do it, but I think that could also come up for President Harris or even for a President Biden. I did a piece for The Hill last week about it. He was, Lindsey Graham and others, Republicans, have said that no one, if he weren't the president, some would have been indicted for lying on a gun application about an addiction. He spiraled into addiction after his brother Bo died. That gave rise to these tax violations. And his tax bracket, 1.8% of audits happen. So that, I think, is another place where pardons could come up very politically in the next six months.

1:12:21.5 Barbara: All right, Kelly?

1:12:24.3 Kelly: Okay the next question. Could Nixon ever have gotten a fair trial if he had not been pardoned? Voir dire alone would have been a very long process and added to our long national nightmare. Does that in any way add to the justification of the pardon?

1:12:37.3 Barbara: Jill, you wanna take that one?

1:12:37.9 Jill: I do, and that's a great question. Because in our discussions, or at least my discussions with Leon Jaworski, one of his arguments was it would delay the trial for a very long time. And the resignation was in August. The trial was scheduled for, it actually started on October 1st. So there was a very short period of time. And obviously, the publicity and other things and the preparation that the president and his legal team would have to do would have delayed it. All of the three trial lawyers, Jim, Rick and myself, all said, "We'll stay. If it takes too long, we'll all go back to doing other things. But we will come back to try this case." Leon, obviously, never gave in and never let us go ahead with the indictment. I do believe he could have had a fair trial. I believe our system of justice works and that people get a fair trial. I believe Donald Trump can get a fair trial wherever it happens to be, whether it's in New York or if he gets it moved to some red state.

1:13:51.1 Jill: I believe I really, having worked with a lot of juries, and Barbara, I'm sure you would agree with me, juries take their job very, very seriously. And they pay attention to the evidence. And they do put aside their biases. They may come in with, yeah, I have an opinion. Yeah, I know about this. And there's no one in the country who didn't know about the Watergate scandal. I mean, if they didn't, they were unqualified to be on the jury. I mean, let's face it. But I do believe they listen to the evidence. In the Manafort trial, one of the jurors was a Trumper. And after the conviction, she spoke to the press. And one of the things she said is, "I am a loyal Trumper. I believe everything he says. But when I was sworn in as a juror, I took an oath to decide only on the evidence in this courtroom. And that was overwhelming. He was guilty. I voted to convict him on every single count." So I think jurors really do, he would get a fair trial.

1:14:57.5 Barbara: Good. John?

1:15:00.7 John.: Yes, thank you. There are a number of questions that are interested in the relationship between the recent Supreme Court immunity decision and how it connects back to these years. They come in different forms. They would ask, first of all, would, if the immunity decision had been in effect then, how would that have changed things? Not just in terms of the legal cases, but also in terms of the politics. Would Nixon have faced political pressure to resign? Would there have been any sort of impeachment? But also questions about whether the Supreme Court justices themselves, looking back had, were maybe, to some degree, considering those years closely in their minds when they were issuing this decision.

1:15:43.8 Barbara: Why don't we have John take the political aspect of that question, and maybe Kim address the legal question. So John, politically, if the Supreme Court had already held that a president is immune from prosecution for their official acts, do you think President Nixon would have felt obligated to resign?

1:16:03.2 John: No, I don't think he would have been inclined to resign. It's not totally clear what really prompted him to resign. I've long thought it was not the threat of the Senate, and first the House impeaching him, and then the Senate convicting him. He actually had arguments. The lawyering was awful. The arguments in front of the Supreme Court were awful, very weak. He didn't get good representation until after he left the presidency and he hired Jack Miller, who wrote a powerful memo to Jaworski on the fair trial issue, whether he could ever receive a fair trial. But I think that he would have thought, well, I'm immune. And in fact, had the Supreme Court issued that ruling, I would have had a very different conversation with him on March 21st about the cancer on his presidency and how he should deal with it.

1:17:13.8 Barbara: Yeah, great. And by the way, you probably know this, but John also wrote a book about Watergate, really, in my view, the seminal book from All the President's Men, the book called Blind Ambition, as well as numerous other books, John. How many books have you written altogether?

1:17:29.0 John: I think I'm working on number 14.

1:17:34.0 Barbara: 14, yeah. I had it at 12. So working on number 14. But Blind Ambition is a really great read, and if you are looking to put yourself back into that time and what was going on inside the White House. Kim, why don't you answer that from a legal perspective?

1:17:49.7 Kim: Yeah, I thought a lot about this. And then as you mentioned, early in my career, I worked on the Whitewater investigation with now Justice Brett Kavanaugh. That was an investigation of an independent counsel under statutory creation that then lapsed, and now it's the special counsel. But it's all the same kind of concept. So there was certainly an understanding through all of that you could investigate a president. I think the concern with the majority is the January 6th indictment, is the Mar-a-Lago indictment. It wasn't part of this, but Justice Clarence Thomas wrote, gratuitous concurrence, basically attacking the constitutionality of Jack Smith, which is a different topic. I mean, the court basically upheld that in the Nixon context for that special prosecutor.

1:18:46.6 Kim: But I think. So I think if things had been different, it's hard to imagine the need for this decision. The court really talked about a concern with rogue prosecutors just boomeranging after presidents now, investigating when they're private citizens, bringing potential indictments, and that that would chill the president's ability to make important decisions, be nimble, and to protect the public. I mean, this also was a follow up to Nixon versus Fitzgerald, where the Supreme Court did hold that presidents have civil immunity, meaning you can't sue them for money damages. In that case, it involved someone who was fired from an agency and wanted to blame Nixon. And the court said, "You can't run around suing presidents for money damages, because they're people within the chain of command and making personnel decisions." That decision, I think somewhat ironically, did create this official versus unofficial act idea. And then Clinton versus Jones came along, where Bill Clinton had been sued for sexual harassment by Paula Jones based on his actions when he was Arkansas governor. So that would have been unofficial presidential act.

1:20:13.7 Kim: The court said that could go forward, that lawsuit, while Bill Clinton was sitting president. And so the same rationale you think would apply, 'cause he said that's unofficial act. So you think, "Oh, would that interfere with his presidency?" Yeah, he lied under oath, and it ended up getting him impeached. So actually, the unofficial, that Paula Jones, that distinction actually created the danger in real time that this Supreme Court is worried about criminal immunity happening. So it actually is kind of cognitively very dissonant. And I'll say one other thing. Jury trials, of course, I think are also just a bastion of democracy. These are regular people. I mean, it's about as democratic as it comes. It's kind of incredible that we have this. But prosecutors have all kinds of checks. Even before this immunity multi-tiered layer cake of tests, there's a political pushback. And I know you all probably talked about this. No one thought it was conceivable to indict Donald Trump.

1:21:18.6 Kim: People thought that would be unseemly. There's standards of evidence. There's grand juries. You have to convince beyond a reasonable doubt. There's proof beyond a reasonable doubt. There's appeals. There are checks and balances on prosecutors just not doing what I think this majority was worried about, just now becoming this cycle of political indictments, whereas now there is no checks now on the president. They seem to be more worried about a lack of integrity by prosecutors. And we're quite comfortable, notwithstanding the facts of January 6th, that we don't have to worry about presidents and the history of Nixon. We don't have to worry about presidents abusing power.

1:22:03.6 Kim: And I just go back to the Federalist Paper's Madison. If men were angels, we wouldn't need a government. The framers, ambition needs to be made to counteract ambition. The framers would not have created a three-part system of government if all we needed to do is trust that everyone's gonna use common sense and act in good faith. And I think that's kind of now where we are with this immunity decision, unless it gets pulled back or it get, there's a constitutional amendment, which has been introduced over the summer, including with a ban on self-pardons in the same amendment.

1:22:39.1 Barbara: Yeah, and if you think about in our hyper-polarized times when our Senate is refusing to convict impeached presidents, you need 60 votes. And people who are in the Senate are not voting to convict members of their own party. So you no longer have impeachment as a viable check. And now we no longer have criminal prosecution as a viable check. You really do have to be careful with your vote, with who you put in the White House, because all the guardrails are gone.

1:23:04.8 Jill: And back in Watergate, there was bipartisanship. And the impeachment, when Leon argued with us, you don't have to indict him. Impeachment is what the Constitution saw as the way to punish a criminal in office. And it was a viable option. They were really proceeding with what was a bipartisan impeachment. That, as you point out, Barb, is definitely not the case. One other little footnote is in the US v. Nixon decision, there was an abstention, because one judge recused himself, because he had served in the Nixon administration as an assistant attorney general. And if we only had that kind of character on this Supreme Court.

1:23:53.6 Kim: Great point.

1:23:54.6 Barbara: Well, we're out of time. But I hope you will please join me in thanking Jill Wine-Banks, Kimberly Whaley, and John Dean for joining our discussion today.

1:24:11.9 Celeste: Thank you again for a wonderful discussion. As we think about President Ford and his legacy, what this conversation shows is the complexity of leadership, the competing demands, the responsibilities, the struggle to find and execute on a good option when accountability and mercy are competing goals, the challenges of the decisions of today, and the struggle sometimes to foresee the consequences of tomorrow, the importance of the rule of law, the struggle of governance, and the challenges of unification. We train students to grapple with these issues, and we cannot thank this panel enough for helping us grapple with this historic moment in our nation's history. Please join me again in thanking our panelists and our moderator Barbara McQuaid, panelists Jill Wine-Banks, John Dean, and Kimberly Daly.