Haig went to Ford and outlined these options—as well as a few others if Nixon decided to fight on—apparently hoping that Ford would endorse a pardon and make it easier for Nixon to decide. Ford listened silently and then explained that he needed to speak with his wife, Betty. Later that same day, Nixon tentatively agreed with Haig to announce his resignation on Monday, August 5, when the White House would have to turn over more tapes pursuant to the Supreme Court decision.
But Ford didn’t act as Haig—and likely Nixon—had expected. The next day, Ford called Haig and, reading from a handwritten note, said in front of witnesses, “I want you to understand that I have no intention of recommending what the president should do about resigning or not resigning and that nothing we talked about yesterday afternoon should be given any consideration in whatever decision the president may wish to make.”
On August 2, with no promise of a pardon, Nixon balked, deciding that he wasn’t going to resign on Monday after all. He would take his chances with Congress, and with the public’s response to the release of a recording from June 23, 1972. That recording would become known as the “smoking gun” tape, because on it, Nixon approved a cover-up plan to have the CIA interfere in the FBI’s Watergate investigation on the phony pretext that national-security issues were involved.
Nearly 50 years later, there is still an eyewitness to what happened next. “Haig was trying to convince Nixon to resign,” remembers Laurence H. Silberman, now a senior judge of the U.S. Court of Appeals for the D.C. Circuit, who in August 1974 was deputy attorney general. “I do recall Haig gingerly pushing Nixon.”
Silberman asked the Department of Justice’s Office of Legal Counsel, which provides legal guidance to the executive branch, to write an opinion on whether Nixon could be pardoned in office, including by himself. “I’m pretty sure it was responsive to Haig,” Silberman told me, “who sometimes called me directly rather than go to [Attorney General William] Saxbe, who was a bit impulsive. It was embarrassing, and I tried to keep Bill apprised.”
Silberman recalls Haig asking about the constitutionality of a self-pardon, but not posing that question at Nixon’s initiative. “Haig was trying to convince Nixon to resign, and I think that may have been something that he would have been thinking of as an inducement,” he told me. Silberman assigned the task of producing the opinion to Acting Assistant Attorney General Mary C. Lawton, who with the retirement of OLC chief George Dixon earlier in the year was the ranking member of the office.
On August 5, Lawton hand-delivered her response to Silberman. The memorandum dismissed the idea that a presidential self-pardon could be constitutional. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” Lawton concluded. Nixon could, however, use the Twenty-Fifth Amendment to resign temporarily, and then Ford, as acting president, could pardon him—although Ford would be under no obligation to do so. Lawton also determined that Congress lacked the constitutional authority to pardon Nixon. “I thought Mary Lawton’s piece was quite superficial,” Silberman told me, although he doesn’t recall disputing the memo’s substance at the time.