The Watergate Prosecution Force had drawn up a 128-page "Prosecution Report" by early February of 1974, outlining what it described as conclusive evidence of Nixon's involvement in criminal activity. There was no need in that office for a "smoking gun." During the next months, Jaworski was in a constant struggle with the Watergate grand jury, composed of twenty-three Washington residents, over the question of indicting Nixon. Jaworski, not content merely to discourage the grand jurors from indicting the President, warned them that as long as Nixon was in office he, as Special Prosecutor, would not sign an indictment. His was the ultimate authority, because no indictments could be issued without his personal approval. Jaworski held back none of his fears in his attempts to maintain control over the grand jurors. In a June, 1982, segment of the ABC television show 20/20, Harold Evans, deputy foreman of the grand jury, described some of Jaworski's arguments against indictment: "He gave us some very strange arguments .... He gave us the trauma of the country, and he's the Commander-in-Chief of the armed forces, and what happens if he surrounded the White House with his armed forces? Would the courts be able to act?" Did Alexander Haig, who is known to have spread similar concerns inside the White House, discuss this possible use of force with Jaworski?
In retrospect, Jaworski seems almost to have been a confidant of Haig in the last days. Internal Watergate Prosecution Force records, made available under the Freedom of Information Act, show that Haig matter-of-factly told Jaworski at a private lunch on August 8 that Nixon had finally decided to resign, effective at noon the next day, and would announce that decision in a televised address to the nation that evening. Haig said that Nixon would be taking all of his documents to California with him, and that—according to a Prosecution Force memorandum summarizing a report Jaworski gave his three top aides that afternoon—"there will be no hanky-panky." Haig also told Jaworski that there was "no question" that someone in the White House had tampered with the presidential tapes, but added that he had no further knowledge. The records show that Haig told Jaworski that Nixon "will not be doing anything for defendants—there will be no pardons." Haig further assured Jaworski that he, acting for Nixon, was not asking for anything in relaying all of this information; Nixon's resignation was not part of any understanding or bargaining, "tacitly or otherwise." On August 9, Jaworski met with about a dozen members of the senior prosecution staff and, according to notes of that meeting, once again relayed Haig's report that Nixon was taking "some things" with him. Jaworski added that Haig had assured him that "there will be lawyers at San Clemente who will know about these things" (the status of pending Prosecution Force requests for White House documents).
That Jaworski would take Haig's assurance at face value, after more than a year of repeated White House lies, deletions, and erasures in a broad array of subpoenaed documents, says much about his relief at not having to face the indictment and trial of Nixon. From the day of Nixon's resignation, Jaworski became, in effect, one of the White House's strongest allies in the struggle to avoid an immediate indictment. Jaworski saw Nixon's resignation as enough punishment, as did Haig. Jaworski argued as early as August 9, according to the Prosecution Force memoranda, that Nixon would never be able to receive a fair trial in the United States, because of the heavy pre-trial publicity, and that his indictment would delay the impending trial of the other Watergate defendants. "There are conflicting factors for us that [the] general public does not have to grapple with," Jaworski told his staff. He was alone in that view among all of the attorneys at work in the Prosecution Force, but he prevailed.
One senior Prosecution Force attorney recalls a conversation in which Jaworski disclosed that he had a compelling financial reason to end his involvement in Watergate by November 5, 1974, when he would have been away from his law practice one full year. If he were gone for a longer period, Jaworski said, he would be required to receive a cash payout, on which there would be hundreds of thousands of dollars due in taxes. The Watergate attorney recalls his understanding at the time that Jaworski was referring to an arrangement he had made with his firm, Fulbright & Jaworski, one of the largest in Houston, with which Jaworski had been associated since 1931. "It was a legitimate tax-planning concern," the attorney says. Jaworski's deputy, Henry S. Ruth, Jr., recalls a similar conversation with Jaworski over an "equity problem" in connection with his law firm. However, Gibson Gayle, chairman of the executive committee at Fulbright & Jaworski, insisted in an interview last May that Jaworski had severed all financial links to the firm upon becoming Special Prosecutor in 1973 and that, to Gayle's knowledge, there were no assets remaining that could have posed a tax problem.
Jaworski died in 1982, and the exact nature of his tax liability may never be known, but it is a fact that his senior associates in the Prosecution Force remain convinced that he was worrying excessively about his financial status at a time when the most critical decision of Watergate was yet to be made. It was their understanding that Jaworski stood to lose a great deal of money by staying too long in Washington, and it was obvious that if he indicted Richard Nixon, he would have to stay on as Watergate Prosecutor for as long as it took to try the case. His subsequent resignation as Watergate Prosecutor took effect October 25, six weeks after the pardon; he served slightly more than fifty weeks on the job.
Haig, in telling Jaworski on August 8 that there would be no pardons for the other Watergate defendants, was leaving out an important part of the story. It began in early August with Nixon's determination to pardon his former aides, and was played out largely on the telephone. Haldeman and Ehrlichman were scheduled to go on trial September 9, 1974, for their role in the Watergate cover-up. Their efforts to receive presidential pardons were reported in the press at the time, and Nixon was said in one account to have "deeply resented the tone and character of the pleas by his two former deputies." Haig, too, was reported to have been angry.
Charles Colson, then serving a federal prison term for his activities against Daniel Ellsberg, recalls being telephoned in jail by his attorney the night before Nixon's resignation and told "to pack my bags." Colson was told, he says, that "Haig was seeing the Vice President and getting pardons for everyone." Haig did, in fact, meet with Ford in his offices early in the morning of August 7—a meeting, as noted earlier, that was not recorded in the vice presidential logs. Colson was not surprised by the news of such intense activity, he says: "It was not in the President's personal self-interest to walk out of the White House with his own pardon buttoned up but not that of his aides. It wasn't just because the boss wouldn't want to leave the wounded on the battlefield, but also because he was worried about being torn up. They'd walk all over him."
John Ehrlichman, in an interview last March, agreed to discuss a series of telephone calls he had received from Haldeman on August 7. He had been out of touch with Haldeman for many months, and he took careful notes. "Things are moving fast," Haldeman said at 11 A.M. Nixon had decided to resign, after a week of indecision prompted largely by pressure from his family. Haldeman told Ehrlichman, according to the notes, that Nixon had resolved the issue of his personal papers and was contemplating a "blanket pardon" of all those caught up in Watergate. Nixon had discussed with Haldeman his belief that the aides had acted not for personal gain but "for the President." Now they were facing prison terms, stiff fines, and personal and family abuse—"and for what?" Nixon had asked. "Serving the President not wisely but well." Therefore, Nixon had said, he was going to "put the Special Prosecutor out of business by leaving nothing unpardoned." Six hours later, Haldeman telephoned again, in distress. He had talked to Haig, and things had fallen apart: Haig announced that his request for a pardon had been "extensively considered and rejected as impossible." Nixon was no longer taking his calls, Haldeman told Ehrlichman. Could he try? Ehrlichman, whose loyalty to Nixon was suspect by mid-1974, did manage to reach Nixon's daughter Julie, but the moment clearly had passed.
In fact, according to an aide of Haig's, Nixon had made a flat commitment to Haldeman for a pardon. The aide eavesdropped on an August 7 telephone call between Haldeman and Nixon, he says, as Nixon tried to “crap out” on the agreement. Nixon couldn't face telling Haldeman that no pardon would be forthcoming, the aide says, and turned the call over to Haig. "Nixon and Ford had the same deal that Haldeman thought he had with Nixon," the aide surmises. "Ford delivered; Nixon didn't."
Haig's role throughout this sequence of events is difficult to fathom. Was he in favor of blanket pardons at one point, as Colson was led to believe? Or was he, as was widely reported at the time, and as he said to Jaworski during their lunch the next day, firmly opposed to them? Or did he simply change his mind when others in the White House—among them Leonard Garment, a White House counsel to Nixon, who had not been tainted by Watergate—raised an immediate objection to blanket pardons? One firsthand source describes Garment's role on August 7 as crucial: "He stopped Nixon from pardoning Colson, Haldeman, and Ehrlichman by telling him [through Haig] that if he did he'd go to the slammer, for sure." The source, an attorney who was involved in the pardon process, says that Garment's protest "turned Haig around—there's no question that Garment killed it." Garment refused recently to discuss his dealings with Haig, but he did acknowledge that he favored a pardon for Nixon "on principle," and thought that pardoning the others would have been a "bizarre and unacceptable act."
With all of the frantic telephoning that day, Ehrlichman did learn new information. Haldeman told him during their morning conversation, "I'm calling to tell you something specific and I'm not sure whether I'm supposed to or not." Ehrlichman's notes to himself continue, "The specific thing has to do with the rest of the tapes... while some are embarrassing to Nixon, they create no major problems. Except in one conversation, the President tells Haldeman that there is a big fund of cash held by Bebe and Abplanalp"- Charles G. (Bebe) Rebozo and Robert H. Abplanalp, Nixon's closest friends, who were under investigation, along with Haig, for their role in the handling of a $100,000 presidential campaign contribution. Investigators for the Senate Watergate Committee suspected that the contribution, which they believed came from Howard Hughes, was part of a larger fund and was put to Nixon's personal use. Haldeman told Ehrlichman that the President had said, "That's Higby's $400, 000." Lawrence M. Higby was Haldeman's closest aide and considered by many on the White House staff to be his alter ego.
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.
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.
Hersh's book The Price of Power: Kissinger in the Nixon White House was published in 1983.