Jaworski had turned Miller's memorandum into his own, informing the White House in a letter on September 4—in response to a request from Buchen—that a trial of Richard Nixon, in the event of his indictment, would have to be delayed at least nine months to one year before an unbiased jury could be selected. In other words, he was telling Gerald Ford that he could expect to begin the 1976 campaign with Richard Nixon on the docket somewhere in the United States. Jaworski's goal was obvious: to shift the burden of responsibility from his office to the White House. His letter gave the Ford Administration the evidence of objectivity it would need to help cope with the inevitable protests over the pardoning of Nixon.
Ford was now willing to run the risk of granting a pardon before indictment, but in return he would need some concessions from Nixon on the relocation of his papers and tape recordings. Benton Becker had been struggling with that issue, on and off, since Nixon's resignation. Becker's immediate problem, he recalls, was historical precedent: Presidents had always been able to remove their personal files. He realized that Ford's instinct was to get the papers out of the White House and out of his Administration. Becker's initial goal, nonetheless, was somehow to find a legal basis for maintaining possession of the documents, which included 950 reels of tape and 46 million pieces of paper. 'Plan One was a subpoena," he says, "but there were no subpoenas outstanding at the time. I wanted a goddamn subpoena, and I passed the word through Buchen to Jaworski. We were in the middle of August and I'm begging for a subpoena and none is issued. All Jaworski had to do was give me a subpoena." None came; there was "no probable cause," according to Jaworski. Days went by, Becker says, and still no subpoena. "I ask Ford for permission to have a private meeting with Sirica." Federal Judge John J. Sirica had handled the original Watergate cases. "He says no." Becker's second plan was to establish a trust, with Sirica placed in control of the papers while the various claimants, including Nixon and the Prosecution Force, litigated. Ford initially liked that approach, Becker says, but quickly cooled to it—after consulting other parties, he thinks.
On September 5, at the suggestion of Herbert Miller, Ford authorized Becker to fly to San Clemente to negotiate on his behalf an agreement on the pardon and the papers. Haig was present when Ford made the decision, Becker says, at a meeting of senior White House aides, but quickly excused himself, seemingly in an effort to have it appear that he was not involved in such negotiations. "It struck me as opportunistic," Becker says, since Haig had been kept advised "of everything" by Buchen and presumably by Ford. A few hours later, in fact, Becker says, Haig sat in on the meeting at which Becker received his last-minute instructions from Ford before taking off for California. One requirement was a clear statement of contrition from Nixon. Becker recalls Haig predicting, "You'll never get it."
Eight hours later, Becker arrived at the Nixon compound in San Clemente, accompanied by Miller. "At the very first meeting with Ron Zeigler," Becker says, "he began by saying, 'Mr. Becker, let me tell you this right now, President Nixon is not issuing any statement whatsoever regarding Watergate, whether Jerry Ford pardons him or not.' How did Ziegler know what I wanted? It's always been my suspicion that Haig telephoned him."
Becker negotiated, during the next two days, primarily with Ziegler. There was one brief meeting, on September 6, with Nixon, who seemed unwilling or unable to discuss any specific aspect of the papers agreement. Becker had evolved a third plan, which called for a deed of trust, with Nixon as the grantor, the government as the receiver, and the General Services Administration as the trustee. Under the agreement, third parties such as journalists and scholars would be able to subpoena the administrator of the GSA, representing the government, and the GSA would have the right to object to the subpoena on various grounds, such as national security. Becker's proposed deed of trust would reserve to Nixon, as the owner of the documents and tapes, the further right to object. Thus, those seeking access to Nixon's papers would have to overcome two legal barriers—the GSA and Nixon. Becker's proposal, however, did deny Nixon the right to object to a subpoena on the grounds of executive privilege; he was left instead with objections based primarily on privacy. As it was conceived, Nixon could order the destruction of any records or tape recordings after ten years, but that period was reduced to five years during the negotiations at San Clemente. It was the only significant concession. Becker remains proud of one aspect of the agreement, which specifically barred Nixon and his attorneys from obtaining access to any original documents or tape recordings; they would be able to receive only copies, made by the GSA. Nixon finally agreed to this plan, but it was eventually thrown out by a federal court, which ordered the documents and tapes placed under control of the National Archives.
Becker also won very little on the statement of contrition. Ziegler's first draft of Nixon’s statement, according to Becker, said only, "In accordance with the law, I accept this pardon." In his final statement, Nixon still refused to admit guilt, saying: "One thing I can see clearly now is that I was wrong in not acting more decisively and more forthrightly in dealing with Watergate .... No words can describe the depths of my regret and pain at the anguish my mistakes over Watergate have caused the nation."
Becker returned to Washington early on September 7, and learned that Ford was prepared to make the pardon public immediately. There was a hitch: some White House aides continued to insist that Nixon, in accepting the pardon, be compelled to demonstrate some sense of contrition or of wrongdoing. Nixon refused. He would not give his enemies the satisfaction they wanted.
It was this issue, apparently, that prompted the former President angrily to telephone his successor sometime in the early evening of September 7, twenty-nine days after he had resigned the presidency. Nixon's message was blunt, according to those few White House aides who knew of the private call: if Ford did not grant him a full pardon, he, Nixon, was going to go public and claim that Ford had promised the pardon in exchange for the presidency, because Ford was so eager to get it. Ford was enraged by the call. "He'd made his decision already," one aide with firsthand knowledge recalls, "and here comes the guy stirring it up. He was very; very irritated; he really resented it." Another aide, who also worked in a sensitive position in the White House, says it was immediately clear that Nixon had no "leverage" on Ford; "going public wouldn't have done him [Nixon] any good."
Ford's decision to announce the pardon the next day, on Sunday morning, September 8, distressed many of his associates and aides, among them Melvin Laird. Laird recalls telling the President that his rush to pardon Nixon was a disastrous political mistake. If he had been given advance notice, Laird told Ford, he could have lobbied for bipartisan support in the Congress: "I would have had them begging him to do it." All Ford could say, Laird says, was "Mel, I had to get it out of the way. I had to get it out of the way."
The pardon was a political nightmare for the new President. His press secretary, Jerry terHorst, resigned in embarrassment and anger. So did Philip Lacovara, in a letter to Leon Jaworski made public at the time. Seventeen thousand telegrams were sent to the White House within two days, running at "about six to one," by a White House spokesman's count, against the pardon. The Senate passed a resolution, by a vote of 55 to 24, expressing its "disapproval" of any further Watergate pardons "until the judiciary process has run its full course." There were no fewer than nineteen bills and resolutions introduced in the House requiring further inquiry, with sixty-three members, Democrats and Republicans, signed on as co-sponsors. Three liberal Democratic members of the House—John Conyers, of Michigan, and Bella Abzug and Elizabeth Holtzman, of New York—filed separate resolutions of inquiry posing questions to the President. Under House rules, the resolutions had to be considered by the House Judiciary Subcommittee on Criminal Justice, chaired by Representative William L. Hungate, within seven legislative days of their filing. Ford sought to brush off the resolutions, writing Hungate on September that he was "satisfied" that the pardon was "the right course…I hope the Subcommittee will agree that we should now all try; without undue recrimination about the past, to heal the wounds that divided America." Enclosed were copies of the transcripts of Ford's most recent news conference and transcripts of two press briefings on the pardon by Buchen.
Hungate, prodded by, among others, Holtzman, who had been one of Ford's most persistent critics during his vice presidential confirmation hearings, rejected Ford's initial approach and urged him to send his counsel, Philip Buchen, to testify. Ford astonished Hungate on September 30 by agreeing to appear in person.
He did so only after a bitter fight among his staff. In a report of events prepared on October 7 for a senior government official outside the White House, and made available for this article, the aide who had seen Haig leave Ford's office on the afternoon of August 1 gave his view of the debate:
Haig spent the day in the White House trying to convince the President that he should not go up before the congressional committee to discuss the pardon. Haig is concerned that the revelation that he, Haig, offered Mr. Ford a resignation from Mr. Nixon in exchange for a commitment that Nixon would be pardoned would cause Haig problems with regard to his return to uniform. Apparently, there are a number of points in which Haig will not look very good. Further, the whole problem of how Mr. Ford himself is willing to come across is a worrisome one to his staff. Apparently, he will have to report that it was twenty-four hours after Haig made the offer before he, Ford, called back to reject the offer and, although everyone believes that Mr. Ford is truthful, they are concerned how the picture will look.
When [Ford's staff] tried to answer the written questions from the Committee, there were so many unanswered facts that would lead to additional questions that the staff and the President decided that the least worst alternative was for him to volunteer to go up and talk, which would have the advantage of giving him the opportunity to come across with the integrity that he has and also would tend to foreclose the "studied" additional questions.
Ford had much more going for him than even the aide who wrote the memorandum realized: the Hungate subcommittee did not conduct an investigation into the pardon before Ford's testimony. One senior subcommittee staff aide recalls: "Once the President indicated his willingness to come up there, there were some members who felt honored."
Ford's timing was nothing short of miraculous, the aide says—the product of some inside information, he thinks. "I remember trying to figure out who should be contacted and interviewed," he says, "and we were probably no more than a day or so from seeking meetings with Haig. Just at that point the President extended his offer." There was widespread feeling among the subcommittee members, including such liberals as Robert W. Kastenmeier, of Wisconsin, and Don Edwards, of California, the aide says, that "it would be an embarrassment to the President to try to contact Haig prior to the time Ford came up there." There was no inclination or intent to "cross-examine" the President.
The precise ground rules for Ford's appearance were worked out at a meeting between John Marsh, representing the President, William Hungate, and Peter Rodino, who was chairman of the full committee. Marsh, now secretary of the Army, recalls that he and the legislators agreed that the resolutions of inquiry called for responses from Ford to specific questions, and nothing more. "The only thing we said Ford would do was respond to the inquiry resolutions—and not an investigation," Marsh says. The White House imposed no other guidelines or demands, he adds.
They weren't needed. One Democratic member recalls having doubts about the President's testimony during the hearing but choosing not to express them: "The President wasn't coming over here to be browbeaten," he explains. Another liberal Democrat, questioned about the soft treatment given to Ford, defended the subcommittee by saying: "We had a discussion as to whether we would stand up [rise when Ford entered], and we decided not to. We were a co-equal branch of the United States and treated him as a co-equal."
The only member to speak up at the October 17 hearing was Elizabeth Holtzman, and she did so to the chagrin of her colleagues. "I wish to express my dismay," she told the President, "that the format of this hearing will not be able to provide to the American public the full truth and all the facts respecting your issuance of a pardon to Richard Nixon. Unfortunately, each member of this committee will have only five minutes in which to ask questions about this most serious matter. And unfortunately, despite my urging, the committee declined… to prepare fully for your coming by calling other witnesses, such as Alexander Haig, Mr. Buchen, Mr. Becker, and failed to insist on full production of documents by you...I must confess my own lack of easiness at participating in a proceeding that has raised such high expectations and unfortunately will not be able to respond to them."
Ford was permitted to make an extensive opening statement; each of the nine subcommittee members was allowed only five minutes for questioning. Ford's appearance lasted less than two hours and won him plaudits for his willingness to face his questioners in person.
Discussing the hearing recently, Holtzman was still angry. "Once you failed to do the proper groundwork, there was no way the questioning could effectively be carried out." She recalls being sharply criticized by many newspapers for her tart remarks to the President, but says that upon returning to her home district in Brooklyn, "people were hugging me on the street."
In late November, after no further staff inquiry, the Hungate subcommittee voted formally to end its investigation into the pardon. Only three members, Holtzman, Kastenmeier, and Edwards, voted in favor of further hearings. Holtzman, now district attorney of Kings County (Brooklyn), New York, says, "Ford's never answered the questions about the pardon to this day."
Ford, asked about the Nixon telephone call in the interview for this article, cited his testimony before the subcommittee, in which he stated that he had no conversations with Nixon about the pardon. "That testimony was made on my recollection right after the pardon," he said. "It was fresh on my mind." He went on: "Secondly, in order to find out any additional information, I got my telephone logs from the Ford library." Those logs showed only one conversation with Nixon, on August 20, which dealt with Ford's choice of Nelson Rockefeller as his vice presidential candidate. "If you go by my memory and if you go by the White House telephone logs," he said, "the call did not take place."
Many of Ford's former close aides, including Benton Becker, say that it was extremely easy for senior White House officials to receive personal calls on outside lines that were not monitored by the switchboard and thus not logged. "I know there are private lines," Becker says. One of Ford's associates points out that Ford was not categorical in denying that such a telephone call took place; he was only stating that he had no recollection of it, and was convinced that he would have remembered such an event.
The Hungate subcommittee, by not fully investigating the pardon, failed to fulfill its constitutional obligations. Theirs was not the only failure. Leon Jaworski found himself unable to meet the immense responsibilities of his position, and undercut his authority by maintaining close contact with the closest aide to the man he was investigating. Those former White House staff aides who know enough to have serious doubts about the process—doubts they waited nine years to discuss with an outsider—did not have the courage at the time to talk, or act. Richard Nixon, with his continued efforts to influence the White House through the good offices of Alexander Haig, demonstrated that his fall from power had taught him little. And Gerald Ford, by putting self-interest and political loyalty to a benefactor above his duty, did not give the American legal system a chance to work. The transfer of power in August of 1974 was not a triumph for democracy.