Updated at 1:05 p.m. ET on February 9, 2021.
Organizing my files recently, I came upon an unpublished article by my father, Harry Kalven Jr. It was the last piece he wrote before his death in 1974. I had forgotten that it existed. Reading it now, 47 years after he wrote it, is an uncanny experience, for it speaks with singular clarity and force to a central question of the moment: How should the legal system respond to crimes that a former president may have committed while in office?
A law professor at the University of Chicago, my father was an expert in several fields—torts, taxation, empirical research on legal institutions—but his consuming passion was the First Amendment. After suffering a heart attack in 1969 at the age of 55, he reordered his priorities and began to work on a book he had conceived of early in his career but had long deferred: an intellectual history of the Supreme Court’s encounters with the First Amendment. “The book,” he told me, “I’ve always wanted to write.”
Each summer, he would take his growing manuscript with him on the family’s vacation to Martha’s Vineyard. Sitting at the edge of Chilmark Pond, he would read through what he had written and make notes in the margins—sketching revisions and additions, challenging the text, flagging matters he wanted to think about further.
In mid-August 1974, his summer idyll was interrupted by an assignment from The New York Times Magazine. Facing certain impeachment, President Richard Nixon had resigned on August 9, and Gerald Ford had assumed the presidency. At this uncertain and unresolved moment, the magazine asked my father to write an article assessing the merits of trying Nixon for his alleged crimes while in office.
On a short deadline, my father responded with a remarkable burst of analytic energy. The New York Times Magazine accepted the article and scheduled it for publication in the September 15 issue. Then, on September 8, President Ford pardoned Nixon, and the magazine pulled the article.
My father died later that autumn, leaving behind a 1,200-page first draft of his First Amendment book. Guided by his marginalia, I spent more than a decade editing and completing the manuscript, which was published in 1988 under the title A Worthy Tradition: Freedom of Speech in America.
The surfacing now of the 1974 article, published for the first time below exactly as my father wrote it, is akin to opening a time capsule. As the country considers the legal fate of Donald Trump, the immediacy of my father’s voice—“speaking to us, out of the past, in the present tense,” as I put it in the introduction to his book—is bracing. And his words give rise to a question about the state of our polarized, reflexive political culture: Could an analysis of comparable rigor and generosity, sustained by comparable confidence in the capacity of the legal system to navigate a labyrinth of competing values to a tolerably just result, be written today?
— Jamie Kalven
Strains on the Quality of Mercy:
Should Mr. Nixon Stand Trial?
The question of whether Richard Nixon should stand trial for his role in the Watergate break-in and cover-up is complicated, unfortunately for him, by its intimate involvement in the continuing desire and need of the American people for an accounting and judgment on the case. For the past two years, our society and its institutions had been grinding slowly but inexorably toward a final determination, and though Mr. Nixon’s forced resignation amounted to a practical solution, it left open the legal and moral questions about his role. They sound an unresolved chord in American life.
To ask whether Mr. Nixon should stand trial stirs familiar perplexities about punishment and vengeance, about the rule of law, about tempering justice with mercy, and also a fresh perplexity about the relationship of politics to justice. But basically, a trial would afford the last chance, through the institutions of the society, to resolve the chord.
When Mr. Nixon was in office, lawyers were beset with esoteric questions of constitutional law. Now that he has left office, the search is for a commoner, more traditional answer. But if the questions have lost their technical ring, they are no less unique and difficult. In fact, the law has little guidance, if any, to offer on the question of whether Mr. Nixon should stand trial. The admirable formula that all men are equal under the law cannot put the question to rest, nor can the widespread, long-established practice of prosecutorial discretion. And the lawyer speaks to it only as a fellow citizen, perhaps guided a little by the perspectives of his discipline, which at least offer some alternatives to the difficult choice of total mercy or total punishment.
The question, in any event, will not simply go away. Mr. Jaworski may well decide not to prosecute, but he cannot do so inconspicuously, without giving his reasons. Whatever is done with Mr. Nixon will be equally a decision, an action.
The decision ought to be made with certain concerns in mind: that there is need to consider both justice for the country and mercy for Mr. Nixon, that a criminal trial can function to allocate censure or blame as well as to punish, and that, in any case, the immediate question is not whether Mr. Nixon should be punished, but whether he should stand trial.
It is important to position the question properly. There surely is a formidable prima facie case for prosecution. First, a grand jury has already named him as a co-conspirator, withholding formal indictment because of the jurisdictional difficulties raised by the fact that he was still President. Since that date there have been made public the celebrated “smoking gun” tapes which were, we are told, the triggering event in his resignation. Whatever the strength of the evidence upon which the grand jury acted initially, the evidence and the inferences against him now must be appreciably stronger with the addition of the new tapes; and the jurisdictional obstacle has been removed with his resignation. Given these public facts, to not indict him now would certainly seem to call for a justification.
Second, there is the behavior of the 10 Republican members of the Judiciary Committee who, when the final report of the committee was filed with the House, changed their votes upon the revelation of the new tapes. They voted for the impeachment resolution on Article 1, which dealt with the Watergate cover-up, but they continued to subscribe to their old position on what constituted an impeachable offense. It required a reasonable certainty of the commission of a serious criminal offense. We thus have the public judgment of the most articulate and adamant defenders of Mr. Nixon that there is evidence making it reasonably certain that he committed a serious criminal offense. Under the circumstances, this solemn public judgment, too, would seem to call for indictment or for justification for not indicting.
This need for justification is made all the more acute by the prospect of the pending trial of the six men charged with the Watergate cover-up conspiracy—Haldeman, Ehrlichman, Mitchell, Mardian, Parkinson, and Strachan. Would it be understandable to have them end up in jail and let Mr. Nixon alone? They may, in fact, still be among the people who would personally feel the least grievance if Mr. Nixon were treated generously. Consideration of the “Watergate Six” does not foreclose mercy for Mr. Nixon; but it does intensify the need for public justification.
I do not think it is just a debater’s trick to position the controversy so that the burden rests on those who speak in Mr. Nixon’s behalf; that, I would repeat, is what equality before law requires—not that he stand trial and be punished, but rather if he is not held to do so, a persuasive distinction between his case and other cases seemingly similar to it be put forward.
What then can be said to make Mr. Nixon’s case sufficiently different? There are perhaps three lines of distinction that give us pause. First, the symbolic jolt of putting a former President of the United States in jail; second, that involuntarily and in disgrace to surrender the highest office in the land, and arguably the most powerful in the world, is to have already been punished enough; and third, an implicit premise that his conduct, so far as appears on public record, was not really criminal after all; he was not a true conspirator but at most passive when, as a responsible President, he should have intervened.
One can feel sympathy for the first point, even while one can’t quite understand it. It is true that we never expected to see a former President so treated and our continuity of respect is jarred. Nor can one say with any assurance how the general public would perceive it. Would some feel a sense of outrage as though the flag had been spat upon? Or feel that the Presidency itself has been depreciated with the consequent dilution of respect for our basic institutions? Moreover, modern communications have made Mr. Nixon as President an added presence in every household for six years now: we cannot be so sure how we will react to punishing so familiar a figure.
This is where the formula about men being equal before the law comes into play. It is not a mechanical formula, but it does govern the initial expectation. The expectation on these facts is that Mr. Nixon will be treated like others with respect to whom exists a good likelihood that they committed a crime. This is the normal course; but it does not foreclose decision. It is still possible under a system governed by the rule of law to urge special individuating circumstances which may justifiably rebut the prima facie case with its presumption that Mr. Nixon should be treated like everyone else. I shall postpone, for the moment, discussion of who should decide whether the presumption has been rebutted and at what stage in the legal process the claim to individual treatment is best confronted.
The point is to be taken seriously and may call for statesmanship in the handling of Mr. Nixon as well as justice and mercy. Nevertheless, I feel the counter-considerations numerous and persuasive. Surely, by now we can distinguish between the Presidency and any current incumbent. Subjecting even a former President to the sanctions of the law would, on balance, in all likelihood add to popular respect for basic institutions. Moreover, it would seem highly desirable to silence any faint echoes of regicide. We are dealing with a fellow citizen, not with a king.
Two further considerations are particularly weighty. The Constitution speaks to the contrary. If the judgment persuades, in the case of Mr. Nixon, it must persuade in the case of any President who resigns under threat of impeachment or who indeed suffers impeachment and removal from office. No President could then be punished later for the offenses that led to his removal from office. But Article 1, section , clause 7 of the Constitution provides:
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any Office of Honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment according to Law.
Whatever then the symbolic dissonance of prosecuting a former President, it is clearly a possibility which the Constitution went out of its way to allow for.
Even more decisive for me is the fallacy of assuming that the only point of asking Mr. Nixon to stand trial has to be to inflict punishment upon him, that the choice is to send him to jail or to let him alone altogether. As I shall argue below, the condemnatory function of the criminal trial in adjudicating guilt has always been regarded as independently important, and Mr. Nixon may present an instance peculiarly calling for its use. Hence, distaste for seeing Mr. Nixon in jail, a distaste I share, does not call for immunizing him from the censure of adjudication in a criminal trial. It cannot be emphasized too often that the question before the country is not whether Mr. Nixon should go to jail; it is whether he should stand trial.
Senator Scott and Vice President-nominee Rockefeller have lent prestigious voices to the proposition that Mr. Nixon has already been punished enough, and that American society should now show mercy. There cannot in the nature of things be rules for dispensing mercy, but the Scott-Rockefeller call does point to a notion that the law has sometimes acknowledged. Judges may sometimes mitigate sentences in light of collateral misfortunes which have fallen the defendant, and they very often do count time spent in jail prior to sentencing while awaiting trial as an offset against the sentence itself.
In our study of the jury, my colleague, Hans Zeisel, and I found evidence of the sentiment motivating jury leniency which we named “defendant has been punished enough.” To illustrate: In one instance, a young man driving recklessly was involved in an auto accident in which his fiance was killed. He was charged with manslaughter, but the jury declined to convict in light of his grief and sense of loss. Professor Zeisel and I were disposed to view the anecdote as evidence of a strength of the jury system.
What, then, do we say of the claim on behalf of Mr. Nixon? First, as the anecdote makes clear, it was the jury and not the prosecutor who dispensed the mercy, and that, I think, may prove a crucial point for the handling of Mr. Nixon.
And again we are confronted with the Constitution. Mr. Nixon’s punishment has been the loss of two years of the presidency with the attendant disgrace, whatever it turns out to be. But in the case of every President who would be impeached and removed, there would be this kind of punishment and a more indelible disgrace. Yet the Constitution clearly provided for the possibility, after impeachment, of further sanctions through “Indictment, Trial, Judgment, and Punishment, according to Law.”
The weakness of the claim on behalf of Mr. Nixon lies in the fact that the punishment is the pain of fall from a high status or estate. This is a troublesome notion for a legal system to acknowledge as a point of any generality. Who else may claim it? We are told that the fact of indictment has already greatly impaired if not destroyed Mr. Connally’s future political prospects. A year ago Mr. Connally enjoyed a high estate indeed and great prospects. Is the damaging of those now to be taken as punishment enough?
Nor is it clear that this sense of punishment has hitherto been perceived at a popular level. The case of Judge Otto Kerner is instructive. He recently began serving a three-year prison term for graft and bribery in connection with a horse-racing scandal in Illinois. Kerner was at the time on the United States Court of Appeals, he had been a former Governor of Illinois, he had directed the study of urban violence which eventuated in the Kerner Report, he had often been mentioned as a possibility for the Democratic nomination for Vice President. He had been a distinguished public citizen and was in his 60’s and in poor health at the time of sentence. There was some controversy over the evidence which led to his conviction but, to my knowledge, few voices were raised claiming that he had, prior to sentence, been punished enough.
Moreover, to acknowledge such an inequity as a general matter would risk creating an image of class justice in a criminal law system which is already sensitive on this score. Prison would tend to be reserved for those whose prior status was not high enough to permit the “punishment” of a fall.
Mercy, as Portia said, is “twice blest” and the tug of mercy in this instance is undeniable. Yet there still remain two prickly counterpoints to note. There is the embarrassing incongruity of the presidential pension and expense allowance which will not escape widespread public notice. Can we explain to the ordinary citizen how a man who is to receive from the government $156,000 in annual perquisites for the remainder of his life has been punished enough? Then there is the angry rhetoric which Senator Scott and Governor Rockefeller encase their appeal to mercy. Here the sheer politics of the matter handicaps the claim on behalf of Mr. Nixon. To put the matter bluntly: Is Mr. Nixon resigning in what might be called non-partisan disgrace? Whether he could be said to have been punished enough may well turn on this matter of disgrace. Listen now to Senator Scott:
The nation now has its pound of flesh. It doesn’t need the blood that goes with it.
Perhaps Senator Scott in a moment of turmoil was reaching for the first metaphor that came to mind, but it casts a shadow over the prospect of any rational handling of Mr. Nixon’s fate to have the pressure that led to Mr. Nixon’s forced resignation likened by the Republican leader in the Senate to Shylock’s claim.
The third of the reasons for distinguishing Mr. Nixon’s case from the general rule, namely, that he has not committed a real crime, has not as yet been discussed openly. It may be the strongest point to be made on his behalf. It has always been discussed hitherto in the context of impeachment. But whether he had cooperated with the cover-up sufficiently to warrant impeachment is an easier question to answer than whether he was literally a criminal co-conspirator in a conspiracy to obstruct justice. Suddenly now the impeachment issue has been removed and we are confronted with the stark issue of personal criminal guilt. Most of us cannot be sure we have thought about it much when put that bluntly and we cannot be so confident of our conclusions.
There is a deep irony in this. The Nixon-St. Clair-Republican defense strategy over the past year may now have painted Mr. Nixon into a corner. By insisting on what most legal scholars have regarded as an unsound narrowing of the definition of an impeachable offense they have sponsored with wide publicity the notion that there is a strict equivalent between impeachable offense and serious criminal conduct. The Republican defections during the last Nixon week, so massive that even Rhodes was ready to vote impeachment in the House and Goldwater and Scott were rumored ready to vote conviction in the Senate, produced a highly visible public demonstration that Mr. Nixon was probably guilty of a crime.
Is the prima facie case for prosecution then met by these three efforts to take Mr. Nixon out from under the general rule? Different people will add the score differently: I can only say that for myself there still remains a stubborn case for not making an exception for Mr. Nixon. I am left, however, with one puzzle to straighten out. If the expected sequence of events had taken place and Mr. Nixon had been impeached and removed from office, would we still want to pursue him as a private citizen with prosecution?
I find myself pretty certain that I would not, that I would favor putting an end to the matter at that point. Can I square this reaction with my preference for his now standing trial?
I see a decisive difference between the two situations. The performance of the Rodino Committee in its public deliberations was for me one of the better moments in American public life in recent decades, and I think it was widely so perceived. Suddenly we seem to have some shared values, shared expectations about government, politics, and public service, and shared good will and rationality. It is this heartening consensus as to public morality which is in danger of erosion as the worthy work of the Rodino Committee overnight becomes obsolete: and it is the intimate tie to this consensus that lends importance to the question of whether Mr. Nixon be prosecuted. If the impeachment had gone ahead, with further public debate in House and Senate, and with the further judgment, there would have been a sufficient underwriting of the shared values, a sufficiently solemn and official censure. It would to my mind serve no public purpose then to proceed to try Mr. Nixon in order to produce another solemn censure.
The current scene is surely very different. The final report of the Rodino Committee has been silently shelved, the debate in Congress has been silenced, Mr. Nixon in his last Presidential speech has been wholly unable to share in the consensus on public morality, and Senator Scott is quick to remind us of Shylock. Under these circumstances there is public purpose in having Mr. Nixon stand trial so that he can either be cleared properly or so that the adjudication can provide the judgment and censure that is needed. This view rests on the thesis that the criminal trial has two functions: to allocate censure or blame and to allocate penalties. The insight is an old one in law. Normally, both functions will be performed simultaneously; there will rarely, if ever, from an official point of view, be penalty unaccompanied by censure. Indeed on one well-known view, the chief function of punishment is to insure reprobation. Modern criminology is exploring the possibilities of institutionalizing a form of blame or censure that would not require the apparatus of penalties, especially imprisonment.
Two illustrations, widely disparate, may be offered of the condemnatory function. In the famous Chicago Seven trial, the two lawyers and five of the defendants were at the trial’s end given sentences by Judge Hoffman for their conduct during the long, turbulent trial before him. These contempt sentences were independent of guilt or innocence on the charges on which the prosecution itself was based. There was much controversy over Judge Hoffman’s handling of the matter. On appeal many of his contempt counts were reversed and a new trial ordered as to the remainder. In the end upon retrying the contempt, Judge Gignoux did find some defendants guilty on a limited number of the counts. But he then withheld any sentence. stating that the censure was sufficient.
The other instance is afforded by a 19th century case that is a law school classic, United States v. Holmes. After a shipwreck of a passenger vessel on the high seas, several passengers and the defendant, a sailor, set out in a lifeboat. The peril was extreme and the boat soon proved to be overloaded. Defendant then directed the jettisoning of some passengers in order to preserve the chances of the rest, and they were thrown overboard to their certain death. Miraculously the remainder survived and were rescued. Defendant was in due course brought to trial for manslaughter and convicted. He was then pardoned by President Tyler. Generations of law teachers have admired the case and used the result to illustrate the subtlety of law. It was possible at one and the same time to preserve the condemnation of deliberate killing of human beings and yet to acknowledge the extraordinary stringency of the circumstances in which defendant acted. The pardon was not to correct a mistake in the first instance in prosecuting. Both prosecuting and pardoning are seen as having their functions.
In the end what we need is justice for the country and mercy for Mr. Nixon.
We have thus far been dealing with Mr. Nixon’s fate as a kind of moral-legal conundrum. But, as we have had several occasions to note, political stakes are hopelessly intertwined with the problem of being fair to him. The Republicans having finally succeeded in getting him out of office may understandably lose interest in preserving the moral consensus on his performance that was for a brief moment so strongly reached. There will be no reinforcement of moral criticism from them. They will speak of Mr. Nixon with sympathy as a tragic suffering figure and will avoid anything that would trigger further public controversy about the Watergate performance of the Nixon Administration. Normally when an Administration resigns in scandal there is no need to look for mechanisms to keep the moral judgment alive—the successor Administration will insure that that is the case. But President Ford, despite his splendid showing of grace, tact and modesty thus far, cannot be expected to help us with the moral judgment on his predecessor to whom he so literally owes his Presidency. His first speech to the country, good as it was, showed the strains. His only two statements suggesting any criticism of Mr. Nixon were “our Constitution works” and “our great Republic is a Government of laws and not of men.” The ambiguities are deliberate. The first clause might be read as implying the constitutional impeachment processes had worked, but it could more easily be read as stating that the constitutional process for Presidential succession had worked, as indeed it had. The second clause might have been meant to underscore that Mr. Nixon now remains subject to the laws, but it could also serve simply as a safe platitude. And his one explicit mention of Mr. Nixon was, with great tact, to ask our prayers for him and to praise the “legacy” of love and loyalty his family had left to White House tradition.
The Democrats may find themselves at the opposite end of the pole of this difficulty. They, too, have a great stake in the judgment on the criminality of Mr. Nixon’s conduct. It is in their partisan interest to have the sense of scandal flourish. And nothing will serve that purpose better than the prosecution of Mr. Nixon.
Does the question then reduce, if we are realistic, not to a matter of justice or mercy, but simply to a matter of politics? If the Democrats will overkill and the Republicans undercondemn, is there any way to depoliticize the issue? Is there any way to take Mr. Nixon’s fate out of politics and “leave it to the law”? That will depend, I submit, on the stage at which we would appraise the case for mercy. There are many possible stages.
It may be done either before he stands trial or at some point in the trial process. If before trial, it may be the result of Congressional intervention granting immunity, or by Presidential pardon or by an exercise of prosecutorial discretion by Mr. Jaworski. Each of these solutions seems to me ill-advised. The idea of Congressional immunity, although talked about some before he resigned, is doubtful constitutionally and now seems implausible politically. A Presidential pardon in advance of trial might have come off as an act of grace by another President at another time. President Ford cannot be that generous to the man to whom he owes so much without suggesting that there had been “a deal” prior to the resignation.
We come then to prosecutorial discretion. Prosecutors have traditionally exercised considerable discretion in deciding whether or not to prosecute, and sometimes on the basis of “mercy” factors as well as on appraisals of evidence or on a judgment as to where best to allocate scarce resources. May Mr. Jaworski properly exercise such discretion in the case of Mr. Nixon? He has already made dramatic decisions in the case of several of the President’s men—Colson, LaRue, Kleindienst—and Mr. Richardson did so in the case of Mr. Agnew. Why not then in the case of the President himself?
These judgments were different. They involved plea bargaining, an admission of guilt to some charges so as to avoid the burdens of a full trial; and in several instances, they involved, too, the promise of cooperation and evidence with respect to others under suspicion. Mr. Nixon would be offering no evidence and admitting no guilt. Moreover, in the usual case the public will have no idea of the evidence available to the prosecutor; it will never appear as openly as it does here that despite promising evidence the prosecutor is electing not to prosecute for purely policy reasons. Further, prosecutorial discretion is more a fact of life about the order than an accepted or admired part of it. It is often criticized these days as the prime example of that very government of men and not of laws that we are all so anxious to repudiate with the passing of Mr. Nixon. Perhaps most troublesome, there is no tradition that prosecutors give public reasons when they do not prosecute.
Finally, it strikes me as an enormous burden to impose on Mr. Jaworski. Admirable and professional as he has been, he was not selected to put so delicate a political issue to rest.
All of the proposals for mercy prior to standing trial suffer equally from a final defect: they forfeit the chance for adjudication as the price for mercy.
Suppose then we were to postpone considerations of mercy until Mr. Nixon stands trial. He may persuade that there is insufficient evidence of genuine criminal complicity and secure vindication. Or a jury may feel that he should be acquitted because of respect for the presidency or because he has been punished enough. Thus, he would be accorded mercy through jury equity. My strong hunch is that such jury dispensing of mercy would be widely acceptable to the public and would indeed represent a non-political solution to an intensely political issue, a solution that would have the support of centuries of Anglo-American jury tradition buttressing it.
There remain obvious difficulties with this outcome, and the point is not easy to analyze. The jury does not give reasons for its decision; there is some chance that after the verdict is in, we will not be able to discern whether it was moved by mercy or doubt as to the evidence. (Although this ambiguity may be resolved by the proof made public at the trial, or by post-trial juror interviews in the press.) Hence, there is a risk of losing whatever sense of censure we now have and stirring claims of vindication. Is the avoidance of that risk a sufficient basis for not asking Mr. Nixon to stand trial? I would say no. We would be absorbing a certain loss now in order to avoid what is at most a possibility of a future loss. If Mr. Nixon can win jury acquittal, I think he is entitled to it. Moreover, by standing trial he would have satisfied an important sense of equality before the law, risking like other citizens his chances with the legal system.
Or the moment for mercy might come at the sentencing stage. And, again, it would fall within well-recognized legal tradition and, I think, prove acceptable to a wide public. And the judge could properly acknowledge the positive contributions and public service of Mr. Nixon.
Finally, if neither of these acts of mercy occur there remains the possibility of presidential pardon. Once Mr. Nixon has stood trial such an intervention would be far less political in appearance and might well be perceived as a genuine act of grace. President Ford’s firm insistence at his first press conference that he was retaining his option to pardon if in due course the matter came before him can best be read, I suspect, as showing an awareness of this difference between pardon prior to trial and pardon after possible conviction.
These three post-trial possibilities are all that leaving the issue apolitically to the law can mean, and they are vastly preferable to the pre-trial alternative, including prosecutorial discretion. They share three strengths. They are supported by legal tradition; they preserve the chance for official censure; and they show a further sense of equality before the law. The critical equality is the standing trial, the taking one’s chances with the legal system. Even the cases of Mr. Agnew and Mr. Kleindienst were instances of this.
For me, then all lines of analysis converge on the desirability of having Mr. Nixon stand trial. Two complex imaginative suggestions, each of which would nevertheless avoid his standing trial are still to be noted. The first is to let Mr. Nixon go, but to continue the impeachment procedures in Congress through to judgment, even though he has left office. This is appealing; impeachment is, of course, the best form for preserving the consensus on public morality. But the mootness of the issue of removal from office makes the levy of the cumbersome impeachment machinery on valuable Congressional time too expensive, and the idea now seems quite dead politically.
The second is to have two-way amnesty, trading, in effect, Watergate offenses for draft offenses. Again, the idea is not without its attraction. A President with deep personal convictions, a Lincoln perhaps, might have carried off such a gesture of good will at the very beginning of his term. And it might have served genuinely to bind up the nation’s wounds. But the moment has probably already passed. And as far as we can detect, both sides are indicating outrage at the suggested comparison.
One cannot feel happy about any solution to so unprecedented a problem. It is really a matter of the lesser evil. In dealing with a man who has engendered such sharply opposed appraisals of his merit as Mr. Nixon, one cannot have the vanity to think he has appraised the possibilities dispassionately. Any trial of Mr. Nixon bristles with practical difficulties. How can a jury ever be selected? How can the trial itself be kept from being a divisive spectacle? What of the humiliation and expense that sheer trial, apart from outcome, imposes on Mr. Nixon? These are worrisome, but they are neither distinctive to Mr. Nixon’s case nor insurmountable. There are advantages in his standing trial we have not emphasized: The contemporary, and the historic, stakes in the chance to continue the inquiry and to perhaps find out what really happened—there is still no intelligible account of why the break-in was undertaken or of why it proved so impossible for the Nixon administration, once the break-in had been discovered, to pay the price of putting the small scandal decently to rest. There is the need to protect the historical record against future efforts at revisionism. There is the reinforcement of the public image of equality before the law. There is the doing of political justice between the Democrats and the Republicans. But for me the decisive advantage in asking Mr. Nixon, too, to stand trial resides in the chance, if the facts will turn out to support our suspicions, to use the condemnatory function of the criminal trial to provide the deliberate solemn official judgment on Watergate and to secure the sense of moral consensus the Rodino Committee discovered for us. In the difficult case of Mr. Nixon, the country should show the courage of its rediscovered moral conviction.