The Wars of Watergate (109 page)

Less than a week after Nixon returned to San Clemente, John Ehrlichman’s lawyers subpoenaed the former President as a witness in the forthcoming trial of Nixon’s former aides. The day before, the Special Prosecutor’s office had said that no decision had been made regarding any prosecution of Nixon. But Nixon had some momentary good news. Ford’s press aide announced that all Nixon tapes and documents not subpoenaed would be returned to Nixon. Ford had agreed to release the material, the spokesman said, on advice from Buzhardt and James St. Clair. They had cited no formal authority, and instead had relied on tradition. But pressure from Jaworski and from Ford’s aides on newly appointed White House Counsel Philip Buchen resulted in a reversal of Ford’s decision. Buchen said that the White House would retain the materials pending the settlement of certain legal issues raised by Jaworski and “others.” Near the end of the month, Nixon received a subpoena to give a deposition for a pending civil trial related to Watergate. From his San Clemente exile, the law’s long arm seemed menacing to Richard Nixon. “Do you think the people want to pick the carcass?” he said in a telephone call to a Republican congressman on August 26, adding that “We’ve got problems with that fellow …”—meaning Jaworski.
⁵

As Nixon prepared to resign on August 7, the leading members of the Special Prosecution Force considered the question of his immunity, his availability as a witness, the feasibility of gaining a “confession of guilt” from him, and the prospect of obtaining a promise that he would not pardon anyone. Much of this discussion recognized the inevitability of Nixon’s resignation. James Neal, who later prosecuted the leading White House aides, stressed the importance of a confession, remembering the Agnew situation in October 1973. Another Jaworski aide warned that “it would be wrong to allow [a] deal that would forgo prosecution while allowing President [Nixon]
to go around … proclaiming innocence.” The prosecutors recognized the importance of bringing the congressional leadership into any “deal.”

The next day, Haig informed Jaworski of Nixon’s intention to resign and not to pardon any former aides. He also told Jaworski that Nixon would plead the Fifth Amendment if called as a witness in their trials and that he would be taking his presidential papers with him. According to Jaworski, Haig admitted that the tapes had been tampered with but said he did not know who had done so.

Jaworski’s staff began earnestly to consider the question of an indictment against Nixon on August 9. The issues emerged quickly: that resignation had been sufficient punishment, obtaining a fair trial would be difficult, and prosecution would aggravate political divisions were all factors which militated against any further pursuit of the case; considerations of equal justice under law, the danger of persistent political division until charges against Nixon reached a final disposition, and the possible appearance of a deal’s having been made to exchange resignation for immunity, were all elements which mandated indictment and prosecution. At a meeting later that day, Jaworski insisted that nothing be done in the present context. One of his aides perceptively realized that the prosecutors were in a “no-win” situation, as a decision either way would be criticized.
⁶

Jaworski aide Philip Lacovara urged him to seek an indictment of Nixon and join his case with that of the other defendants. But other staff members divided on the issue. Neal, perhaps the most experienced prosecutor and political figure in the group, acknowledged that a
prima facie
case existed against Nixon but argued that “it would not be in the country’s best interest to prosecute him.” He then suggested that Jaworski leave the actual decision to the grand jury. Still another prosecutor urged that the case against Nixon be developed, then presented to President Ford to see if he preferred clemency. He added that if Jaworski chose not to prosecute, then the indictments against the other defendants should be dismissed. But the preponderance of opinion expressed to Jaworski firmly favored prosecution of the former President.
⁷

Nixon nevertheless had support from many quarters. The day he resigned, Senator J. William Fulbright said that Nixon’s contributions to foreign policy merited the nation’s “gratitude and approbation.” Fulbright suggested both a pardon for Nixon and amnesty for draft resisters, in order to surmount the twin traumas of Watergate and Vietnam. On August 20, Ford nominated Nelson A. Rockefeller, Nixon’s old rival, for the vice-presidency. Reporters questioned the former New York governor regarding Nixon’s future. He already had been “hung,” Rockefeller said, and added that he need not “be drawn and quartered.” He proposed that Nixon be given “immunity from prosecution.” That same day, by a 412–3 vote, the House of Representatives accepted the Judiciary Committee’s report on its impeachment inquiry.
⁸

Clare Boothe Luce, in a
New York Times
essay, called for a pardon less than a week after Nixon resigned. She dismissed Nixon as simply “one more crime statistic,” and observed that his offenses were far less horrifying than murder, rape, or treason (“Nobody was drowned at Watergate,” she said, in an obvious swipe at Senator Edward Kennedy). For that, Nixon already had suffered “cruel and unusual punishment;” he had been “stripped” of the presidency and had “lost all that made his life rich and meaningful.” “Booking … Citizen Nixon,” Luce wrote, would satisfy only revenge. She urged Ford to use his constitutional power for clemency—“if His Majesty, the public, so wills.” But public sentiment was skeptical: a Gallup poll, conducted between August 16 and 19, showed that 56 percent of the respondents favored a criminal trial for the ex-president.
⁹

Republican Congressman David C. Treen (LA) spoke for most of his party when he urged Leon Jaworski not to prosecute Nixon. Treen believed that it would be “extremely divisive and counter-productive.” More important, Treen urged Jaworski to consider mitigating factors: Nixon had rendered the nation a great service by resigning and not extending the impeachment battle; he had not destroyed the tapes; and his resignation alone constituted “punishment of indescribable magnitude.” Many Americans thought that the price already had been too high; many others, Treen contended, believed any further penalty altogether unjustified.
¹⁰

On August 27, Leonard Garment talked to several reporters who, he claimed, thought that the time had come for Ford to issue a pardon. Vengeance offered no rewards to the nation, they agreed, and Nixon himself was destroyed. Garment thought that Ford had to act before “institutional momentum” made it impossible for him to do so. Working with Raymond Price, Nixon’s chief speechwriter, he drafted a memorandum and a pardon announcement for Ford. Garment presented the documents to Buchen the next morning at the senior staff meeting, and provided a copy to Haig.

The quiet, informal pressures on Ford that had been building throughout the month now came to a focus in Garment’s memorandum. Garment warned that demands to punish Nixon would increase, not diminish. Jaworski confronted irresistible pressures to prosecute from his staff, the media, and Sam Dash of the Senate Select Committee. Soon, Garment believed, matters would pass from Ford’s control: the national mood of conciliation would dissipate, the President would find it increasingly difficult politically to intervene, “and the whole miserable tragedy will be played out to God knows what ugly and wounding conclusion.” On the other hand, Garment argued that after an initial negative reaction to a pardon, the nation would be relieved. He thought prompt action would relieve Ford of Nixon as a distracting
issue in both the upcoming congressional elections and the President’s efforts to forge a new economic policy. He confidently argued that the nation thirsted for direction and crystallization of its feelings toward the ex-president; Ford, he insisted, had an opportunity to lead and to inspire.
¹¹

Conveniently—perhaps too conveniently—the first question raised at Ford’s press conference that day, August 28, was whether he agreed with Rockefeller on immunity for Nixon and whether he would use his pardon authority. Ford thought that Rockefeller’s statement “coincided” with the “general view” of the American people. A bit elliptically, he added that “in this situation I am the final authority,” and then pointedly declared that a pardon was a “proper option.” For most commentators, Ford left no doubt that he thought the former President had suffered enough. He clearly indicated that he would pardon Nixon—he later admitted that this was his implication—but he also added that he would not take precipitate action: “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 undertaken, I think it is unwise and untimely for me to make any commitment.” The President’s Press Secretary, for one, believed that Ford had made a solemn promise not to interfere until the process had run its course.

Ford, of course, knew that the pardon issue would inevitably be raised. He later described that press conference with some bitterness, because reporters had concentrated so on the fate of the ex-president that they failed to raise the substantive national policy issues that Ford faced. “I thought they had wasted my time,” he wrote. Further, he thought that similar questions would go on endlessly and his answers be subjected to various, and even irresponsible, interpretations. He admitted that he had some concern over Nixon’s personal health, and his own belief was that the country did not want to see him behind bars. But he insisted that the nation’s health most concerned him, and he quoted one of his military aides: “We’re all Watergate junkies. Some of us are mainlining, some are sniffing, some are lacing it with something else, but all of us are addicted. This will go on and on unless someone steps in and says that we, as a nation, must go cold turkey. Otherwise, we’ll die of an overdose.”

Immediately after the press conference, Ford told his aides to prepare the necessary pardon documents. Buchen, however, claimed that the President did not order him to proceed until August 30. He, of course, was not unfamiliar with the issue—having read Garment’s pardon memorandum as well as having discussed the matter with Haig. And Buchen undoubtedly had shared the material and conversations with the President.
¹²

The Special Prosecutor’s staff made its own assessment of Ford’s August 28 press conference. Lacovara thought that Ford opposed any prosecution of Nixon, and that he had signalled Jaworski accordingly so he would not have
to pardon Nixon. Lacovara urged Jaworski to ask the White House (offering to do so himself) if the President intended to pardon Nixon. He apparently hoped to force Ford to act to head off any pending indictment.
¹³

On September 4, Jaworski told Buchen that Nixon could not be tried for at least nine months to two years. He added that the forthcoming trial of Mitchell, Haldeman, and Ehrlichman would generate unfavorable, prejudicial publicity, precluding any fair trial for Nixon. Jaworski also had no intention of including Nixon as a co-defendant, believing that the former President’s condemnation in the impeachment process might well prejudice the cases of the other defendants. On that same date, Nixon’s lawyers delivered a lengthy memorandum to Jaworski, demonstrating “conclusively” that the former President could not receive a fair trial and should not be indicted. The prosecutors themselves never came to a specific conclusion on the fair-trial issue.

Jaworski had a healthy respect for Nixon’s new lawyer, as well as a keen memory of the former President’s determination to delay and impede legal proceedings. He attached a memorandum of his own to one he had received from his deputy, Henry Ruth, stating that the staff was investigating ten possible criminal violations by Nixon aside from his role in obstructing justice in the Watergate affair. “None of these matters at the moment rises to the level of our ability to prove even a probable criminal violation,” Ruth wrote; yet, he thought the investigations proper as the prosecutors fully pursued their duties. Ruth told Jaworski that, if he intended to seek an indictment of the former President, it would be “fair and proper” to notify the White House “sufficiently in advance so that pardon action could be taken before indictment.” He believed that good arguments could be made for leniency, but if Ford were to pardon Nixon, “I think he ought to do it early rather than late.” Ford claimed that Ruth’s remark clinched his decision. The President had his own political calculus to follow; the prosecutors, for their part, found important considerations at stake involving the integrity and viability of the legal system.
¹⁴

Ford had made his decision firm by September 4, perhaps sooner. But for the next few days, he carried out a bargaining charade with his predecessor. At the same time, in this crucial period between his decision and his announcement of the pardon, he failed to do the things that might have made his action more acceptable; instead, his attention focused on fruitless negotiations between his emissary and the Nixon entourage in San Clemente.

On September 4, Philip Buchen met with Nixon’s new lawyer, Herbert J. Miller, and Benton Becker, a young attorney who had worked for Ford in Congress. Buchen told Miller that Ford was considering a pardon and that
he hoped Miller might be able to help extract a statement of contrition from Nixon. Ford admitted that the idea of such a statement had been broached, but he later added that he had not “demanded” it. In fact, the President was concerned about Nixon’s response. He shared Jaworski’s fear that Nixon might act as Spiro Agnew had when he offered a
nolo contendere
plea in October 1973 and then publicly insisted he had done no wrong.
¹⁵

Ford dispatched Becker to San Clemente the next day. Becker’s mission was threefold: he was to negotiate a statement of Nixon’s response to a pardon, conclude an agreement regarding the possession and control of Nixon’s papers and tapes, and make some determination of the former President’s mental and physical condition. As Becker left the White House, Haig told him Nixon would never surrender his papers and tapes. When Becker arrived in San Clemente, Ronald Ziegler, Nixon’s principal aide, greeted him rather belligerently, as Becker recalled, and said that President Nixon would not admit anything to “Jerry Ford,” and he would not give up his papers and tapes. “If you’re out here for any of that, you’re wasting your time,” Ziegler said. Ziegler’s knowledge of Benton’s mission was not the only indication that Haig may have had his own two-track process, and that he—and perhaps Ford—had spoken to Nixon or to the former President’s aides in San Clemente.