The Pardon

Nixon, Ford, Haig, and the transfer of power. (Hersh's book The Price of Power: Kissinger in the Nixon White House was published in 1983).

Higby testified about the cash fund before the Watergate Committee, but its existence has never been confirmed. Haig's aides were convinced, as of the fall of 1974, after Nixon's resignation, that the cash was still inside the White House. "I knew the money was floating around," one aide recalls. He and others believed that the money was stashed in what was considered to be a secret safe in Haig's office (the same office that had been occupied by Haldeman). The aide says that the existence of the safe in the office was known only to a few, and even fewer knew its location. Haig refused to touch the safe. the aide says. Nobody wanted to know what was in it. When Donald Rumsfeld returned from serving as ambassador to NATO and became Ford's chief of staff, in late 1974, he ordered the safe drilled open by the Secret Service, a procedure that drew a small group of fascinated members of the White House staff. "It was empty," the aide recalls. "Someone, somehow, snapped up the cash."

Ford, in his memoirs, wrote nothing of the pardon issue or of any talk of money during the last hours of the Nixon presidency. He described his meeting with Haig on the morning of August 7 in a few sentences: "Haig was there shortly before eight o'clock. The two of us sat on the davenport, looking at each other. 'Mr. Vice President,' he said, 'I think it's time for you to prepare to assume the office of President.'"

To the American people and the world, the change of power on August 9 was an emotional moment, as an outgoing, defeated President bade farewell in a televised speech delivered to his staff. Nixon had expressed regret in his resignation speech, but refused to acknowledge that he had done more than merely make mistakes: "I would say only that if some of my judgments were wrong—and some were wrong—they were made in what I believed at the time to be in the best interests of the nation." One closely involved aide recalls that Nixon had initially sought in his formal letter of resignation, which, under the Constitution, was to be handed to the secretary of state, to make a vigorous defense of his actions, but was persuaded not to during last-minute rewriting. His first draft, the aide says, defiantly laid the blame for Watergate on others. "But it finally came down to, 'I resign.'"

There was a last, bizarre interlude on the eve of his departure from Washington, when Haig ordered the Secret Service to keep all of the White House staff in their offices while the President took a farewell stroll through the buildings and grounds.

Inside the White House, the bunker mentality continued after Nixon was gone. Nixon's staff had been burning papers until the last minute. Robert Hartmann recalls that the offices adjacent to the President's were "heavy with the acrid smell of paper recently burned in the fireplace." A few hours after taking possession of the Oval Office, Fod called in Benton Becker. Becker, who had taken leave from his law firm at Ford's request (he is now the senior trial attorney in the Dade County, Florida, State Attorney's Office), recently recalled the meeting, which was his first visit to the presidential office. Ford asked him about the disposition of Nixon's papers. "What are Nixon's rights?" Ford wanted to know.

The Secret Service had reported that tons of papers were piled up on the fourth and fifth floors of the Executive Office Building; there was concern, Becker had been told, "that the floors would cave in." In the first few days in the White House, Becker says, "The Nixon people were burning crap like crazy." Dozens of bags of documents were piled outside the basement burn room, awaiting incineration. Becker learned from a White House aide that the chemical paper shredder, known as a machination machine, had been operating at five times its normal capacity for weeks. There was constant pressure on Ford's men to stand aside, Becker says, and to permit the continued destruction of White House documents and the shipment of Nixon's papers to California. Becker, in these first days, seized authority as Ford's representative. He ordered the burn room to cease operations, except for the destruction of highly classified materials, and cut staff access to the chemical shredder.

On Saturday, August 10, the day after Nixon left, Becker was at work late at night in his office when he was told that three Air Force trucks were outside the White House, loading Nixon's file cabinets and other personal goods. Becker recalls walking outside to the parking lot, where an Air Force colonel was directing the loading operation. "This truck does not move," Becker said. The colonel did not back off an inch: "I take my instruction from General Haig," he said.

"I said," Becker recalls, "'Let's go right now'—and we went into Al's office." Haig professed ignorance, telling Becker, "I wasn't aware of it," and ordered the colonel to unload the trucks, which were to deliver their cargo to a waiting transport plane at Andrews Air Force Base, in suburban Maryland. "I had no illusions about Haig," Becker says, "and so I went outside and watched that son of a bitch unload."

Becker's assumption of authority did not prevent Jerry F. terHorst, Ford's press secretary, from announcing to the press on August 14 that Richard Nixon's attorneys and officials of the Special Prosecution Force had agreed that the White House tape recordings and presidential files, still in protective custody of the Secret Service, were Nixon's personal property. The statement was big news; newspapers suggested that the Ford Administration was, as Robert Hartmann noted in his memoirs, "trying to pull a fast one." Jerry terHorst recanted the next day, and it was announced that Fred Buzhardt, whose office had supplied terHorst with the information, had resigned as a White House counsel. Haig's role in all of this is not known, but he had discussed the matter with Leon Jaworski on August 8, as the Prosecution Force memorandum shows, and Jaworski had done nothing to discourage Haig from believing that an understanding had been reached on the papers. But Jaworski had left Washington for a brief vacation immediately after Nixon's resignation, and James Vorenberg, the Harvard law professor who was Acting Watergate Prosecutor, had called the Ford White House that weekend, after hearing from a reporter that the Nixon papers were being prepared for shipment, to demand that they not be removed. Vorenberg recalls being reassured by Philip Buchen, Ford's official White House counsel, that nothing would happen. "I threatened to take every legal step I could take," he says. "They were very taken aback."

The aide to Haig who monitored his telephone calls recalls that Haig was under intense pressure from Nixon after the failure of the Saturday-night shipment. There were repeated calls, and they were abusive: Nixon was convinced that Ford was double-crossing him, reneging on a commitment to ship him his papers. "Nixon was obsessed by those boxes [his files]," the aide says, "and he was furious at Haig. He was screaming bloody murder." Becker recalls attending a meeting with Ford and Haig and listening to Haig argue once again that Nixon be given his papers. Ford explained to him, Becker says, that the pressure was originating with Nixon and coming through Haig. Becker recalls insisting to Ford at one point, in front of Haig, that if he permitted the papers and tape recordings to be shipped, "history will record this as the final act of cover-up—there will be one hell of a bonfire in San Clemente." Haig said little, Becker says: "He was still reluctant to argue with me in front of Ford."

Haig must have understood that Ford, even if he had made a prior commitment, would be in dire political jeopardy if he permitted Nixon's papers to be returned to him—especially since there had been heated opposition from the Prosecution Force and his own staff. And yet Haig did battle for his former boss. In the first months of the Ford presidency, he continued to operate as chief of staff, spending, according to Robert Hartmann, as much as three hours a day alone with Ford. Hartmann and other longtime members of Ford's staff, such as Philip Buchen and John Marsh, were initially forced to schedule their meetings with Ford through Haig's office.

In the interview last April, Ford insisted that he did not discuss a pardon for Nixon with Haig or with anyone else between his swearing-in and August 28, the day of his first presidential news conference. He went further, and insisted that the "matter" of a pardon for Nixon "never entered my mind" in this period. He was preoccupied, he said, with the arguments over the handling of Nixon's papers and tape recordings. Asked whether Haig advised him on that issue, Ford answered, "I don't recall."

Haig's goal in those first weeks, along with establishing control of Ford's staff, was to provide for his own future. Within a few weeks of Nixon's resignation, Ford informed James Schlesinger, at the Pentagon, of his wish to nominate Haig as Army chief of staff, the highest post in the Army. Schlesinger was offended. For one thing, General Creighton W Abrams, a much-decorated combat officer, who had the job, was hospitalized at Walter Reed Army Hospital in the final throes of a long battle against cancer. It was unseemly to appoint a successor before his death. Another factor was the outcry Haig's appointment was sure to create inside the Army, where, as Schlesinger quickly learned, Haig was viewed with disdain by his peers. The Army senior officer corps was strongly in oppo­sition—an opposition that somehow never reached the press.

Schlesinger finally decided to go out of channels. He defied the wishes of his Commander-in-Chief, by lobbying quietly against Haig's nomination with two key members of the Senate, John C. Stennis, chairman of the Armed Services Committee, and Henry M. Jackson, of Washington, the ranking Democrat who was most influential on military issues. Both men acknowledged that Haig's nomination would pose great difficulty, and not only because of the protests from the Army; there was the possibility that Haig would be unable to stand up to thorough questioning on Watergate during confirmation hearings. Schlesinger's lobbying killed the nomination. Ford was unhappy and Haig was furious. Schlesinger got the silent treatment from the President for ten days, but he had no regrets. "The Army could not abide Haig," he explained recently. "I didn't want Haig to screw up the Army, which had its own problems in the post-Vietnam period. His appointment would have thrown the service into another internecine struggle."

One of Haig's aides in the White House recalls making a series of inquiries on Capitol Hill, just as James Schlesinger was doing in the Pentagon, and telling Haig what he had learned: "You can't get confirmed to anything." The adverse readings from Congress wiped out the jobs on Haig's list, and, the aide says, "He fell back to NATO." Haig was appointed NATO commander in Brussels, the most senior American military post that did not require confirmation. He did not leave the Ford White House until the issue of Nixon's files was resolved.

There were ominious signs from Jaworski that he was losing control of his Watergate Prosecution Force and the grand jury. At the beginning of August, Jaworski requested members of his staff to forward their recommendations on Nixon. The advice showered in, and it was unanimous: Jaworski no longer had the right to stand in the way of the grand jury. Even James F. Neal, the Prosecution Force lawyer who was closest to Jaworski in age and outlook, broke ranks. Neal, who was scheduled to try the Watergate cover-up case in September; had agreed with Jaworski that a sitting President could not be indicted. It was one of many areas of agreement between them. The two men, both conservative Democrats from the South, had spent dozens of hours in the past year in conversation about Watergate, but Jaworski suddenly cut off those talks. Neal, his feelings hurt, never did learn why Jaworski chose to operate in secret in August and September. In an August 27 memorandum on Nixon, made available under the Freedom of Information Act, Neal urged Jaworski to "advise the grand jury that you will abide by its decision and that you will assist in preparation of a report in lieu of an indictment, if the decision is not to prosecute, or will aid in preparation of an indictment if the grand jury decides on prosecution ....In any event, the issue is so close, history, in my opinion, will not argue with the decision if the manner in which it was made reflects fairness and maturity of judgment."

In mid-August, Jaworski was in touch with Philip Buthen; the two men were staying in the same downtown Washington hotel, and often met privately. There was also Jaworski's continuing relationship with Haig. It seems probable, based on the constant meetings between Jaworski and members of the White House staff, that Jaworski warned Haig that Richard Nixon was facing imminent indictment.

This possibility must have triggered alarm in San Clemente, with Nixon's feeling that Ford had double-crossed him on the shipping of his papers suddenly becoming the fear that Ford would allow him to be indicted. The public and the press had responded to Ford's presidency in its first few weeks with overwhelming support—perhaps far more than anyone had anticipated. Such growing popularity was a liability to Nixon, for with each passing day Ford stood to lose more politically by pardoning Nixon.

The pressure on Ford began to mount. A steady stream of reports to Ford, many coming through Haig's office, described Nixon's rapidly deteriorating condition. His health was said to be alarming; there were stories in the White House that he was acutely depressed and morbid.

In hi 1976 memoirs, The Right and the Power, Leon Jaworski wrote of a visit late in August with Senate Judiciary Chairman James Eastland, of Mississippi, a Democratic supporter of Nixon's. "He said he had just talked with Nixon, that Nixon had called from San Clemente. 'He was crying,' Eastland said. 'He said, "Jim, don't let Jaworski put me in that trial with Haldeman and Ehrlichman. I can't take any more." Eastland shook his head. 'He's in bad shape, Leon.' There was a touch of the pity he felt for Nixon in his voice, but not the slightest intimation that he was trying to twist my arm." Similar calls and reports from congressmen were being directed to the White House, in what seemed to be a carefully devised campaign. Even the Nixon daughters and their husbands were telling friends and reporters of the poor shape of the ex-President.

On August 28, Leonard Garment made an impassioned plea for an immediate pardon from Ford in a memorandum to Haig and Buchen, made available for this article. Garment cited Nixon's mental and physical condition and hinted that Nixon's life could be at stake. He wrote:

A Special Prosecutor must prosecute; and Jaworski's staff [and] the media... will not let him forget that. My belief is that unless the President himself takes action by announcing a pardon today, he will very likely lose control of the situation ....The country is struggling to get on its feet. Public feeling toward Richard Nixon is extremely confused. There is a drift toward prosecution stimulated by a variety of sources, but it has not yet crystallized. At this point most of the country does not want Richard Nixon hounded, perhaps literally, to death. Once the institutional machinery starts rolling, however, and the press fastens on Nixon as a criminal defendant, Presidential action will be immensely more difficult to justify and therefore, perhaps, impossible to take.

The country trusts President Ford and will follow him on this matter at this time.

Garment's memorandum was accompanied by a draft presidential statement announcing a pardon, written by Raymond K. Price, Jr., one of Nixon's former speechwriters, who was still at the White House, which raised the pre-trial publicity issue, as Jaworski had done in his staff meeting in early August. "Because he [Nixon] has paid this high penalty," Price wrote, "and because, realistically speaking, there is no way that he could be given a fair trial by an unbiased jury. . . I believe his case can be separated from those of the other Watergate defendants." The issue of Nixon's future was "more than strictly legal," the statement said. "It turns on considerations that are essentially political ... considerations of the broader public interest, not merely of the mechanical application of laws written for other purposes and other circumstances." Ford was being told that Nixon was above the law.

Haig had nothing to do with his memorandum, Garment insists. He says it was inspired by the fact that Ford was scheduled to hold his first press conference, and the issue of pardoning Nixon would obviously arise. "I didn't need anybody to tell me that," Garment says. "The thought on my part was that I had some credibility with the new bunch, and that this was the time to clear it up." He stayed up much of the night before, he says, writing eight or nine drafts of his memorandum. If Haig or anyone else had wanted to use the memorandum "to push and press" Ford to pardon Nixon, Garment says, "that would have made sense."

There were doubts among some of Ford's senior staff members, however, about the speed with which it circulated. "The Garment memo landed on my desk on the morning of the press conference," Philip Buchen says. "It was well done. I remember telling the President that I had the memo and that it was premature." Buchen says that by the time of their conversation, Haig may have already given the Garment memorandum to Ford. "For all I know, Ford saw the memo. Haig was in cahoots with Garment." A few hours after its submission, Haig told Garment that a pardon was "all set—he's going to do it this afternoon."

Ford's insistence in the April interview that the "matter" of a pardon for Nixon did not enter his mind from the time he became President until August 28 is challenged by his response to the first question at his press conference. Nelson A. Rockefeller, the governor of New York, who was Ford's nominee for Vice President, had told a television interviewer on August 25 that he believed Nixon had been punished enough by being forced to leave the White House. The first question at the news conference referred to Rockefeller's comment, as the White House staff had anticipated, and asked Ford whether he would use "his pardon authority, if necessary." Ford declared that Rockefeller's statement "coincides with the general view and the point of view of the American people. I subscribe to that point of view, but let me add... in the last ten days or two weeks I have asked for prayers and guidance on this very important point."

Ford told the reporters at his press conference that he would not make a final decision on the Nixon question until it reached his office. His point, repeated throughout, seemed clear to most of the journalists: he would not intervene with the functions of the Watergate Special Prosecution Force. Most newspapers interpreted Ford's comments as indicating that he would permit Jaworski to proceed with an indictment of Nixon.

Benton Becker knew better. In late August, he was asked by Ford to research Ford's constitutional authority to pardon. “Was it absolute? Could he pardon before indictment?" After a few days of work in Washington law libraries, Becker concluded that Ford's power was absolute and was not subject to review; nor could he be impeached for his use or misuse of the pardon power. At this point, Becker became a supporter of the pardon, a position that matched Ford's; he was convinced that their conversations on the matter were a first for Ford. It was with some shock that he later learned that Ford had talked over presidential authority to pardon with Haig on August 1. Throughout this period of intense discussion about the Nixon documents, Haig was a constant participant in Oval Office meetings, Becker recalls.

Some members of the Special Prosecution Force, who shared the overwhelming staff sentiment in favor of an immediate indictment of the President, also were not fooled. On the day after Ford's news conference, Philip A. Lacovara, chief counsel to Jaworski, shrewdly summarized the situation in a memorandum to Jaworski, made public under the Freedom of Information Act:

In his news conference yesterday President Ford clearly suggested that he did not believe that former President Nixon should be prosecuted. Although it is difficult to discern whether he was intending to "signal" you at all and whether such a "signal" was designed to discourage you from putting him in the position of having to pardon Mr. Nixon or to encourage you to let the law take its course while allowing him to exercise Presidential clemency, one thing is clear: President Ford seems inclined to exercise his pardon power on behalf of the former President.

Lacovara went on to urge Jaworski to defer a decision on the President's future. "I believe President Ford has placed you in an intolerable position by making his public announcement," Lacovara wrote. "I see no reason why the matter should not be put squarely to him now whether he wishes to have a criminal prosecution of the former President instituted or not."

The vast majority of attorneys in the Prosecution Force office disagreed with Lacovara's advice. They believed that Jaworski was obligated to make his own decisions. In a series of memoranda submitted to Jaworski in late August and early September, the Prosecution Force attorneys were adamant that Nixon not be judged by a separate standard. "Richard Nixon should be treated no differently than anyone else," Nick Akerman wrote on August 29. "All criminal allegations involving Mr. Nixon should be fully investigated and, if the evidence points to criminal conduct, he should be indicted." Richard Weinberg advised Jaworski on September 4: "I... believe that Richard Nixon should be treated like any other citizen this office has investigated ....the country would…accept a decision by the lawful processes of law, the grand jury, and the Special Prosecutor, to indict Richard Nixon." Jaworski was repeatedly urged to base his decision solely on legal grounds. On September 3, Phil Bakes wrote: "Your decision, whatever it may be, should be made with a clear view of your role. You are a prosecutor—not a pollster, a congressman or President. Accordingly, your decision should be made on prosecutorial criteria alone…Your function is to investigate and, if the evidence warrants, prosecute. Your role is not to discern public opinion and public mood and base your prosecutorial decisions on your view of the public mood." The Prosecution Force memoranda, obtained under the Freedom of Information Act, strongly suggest that the junior attorneys in the Prosecution Force understood as of early September what the press and the public did not: that there were strong political forces urging a pardon—and that Leon Jaworski would go along with them.

Jaworski was looking for a way out. He needed a justification for not indicting Nixon. The issue he used was his oft-stated belief that Richard Nixon could not get a fair trial in the United States. In late August, he shared his doubts with Philip Buchen as well as with Herbert J. Miller, Jr., a former senior Justice Department official, who had been retained on August 27 by Nixon as his criminal attorney. After a series of meetings between Miller and Jaworski, Miller, at Jaworski's request, provided the Special Prosecution Force with a memorandum on September 4 in which he argued that the impeachment proceedings of the House Judiciary Committee and the intense media concern with Watergate had made it "inconceivable that the government could produce a jury free from actual bias." Jaworski reproduced the Miller analysis at length in his memoirs, and added that if he had been asked by a court whether Nixon could get a fair trial, "I would have to answer, as an officer of the court, in the negative."

Jaworski may have been sincere in his belief, but he was not necessarily right. His legal staff, on which he had relied over the past year on so many issues, had been waging a battle with him over the question. In a memorandum dated September 5, Lacovara concluded that "it is my best professional judgment that a decision not to prosecute Richard Nixon because of the occurrence of...publicity about his criminal complicity cannot be justified on ground of constitutional law. There may be other factors justifying non-prosecution but 'pre-trial publicity' is not one of them." Another point repeatedly cited by the attorneys dealt with procedure: regardless of Jaworski's views on a fair trial, they argued, a decision on that issue was not his to make as a prosecutor. It was a judicial determination.

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