A Decent Man Who Made a Terrible Mistake

In the wake of the news of the passing of Gerald Ford, the operative word for describing his presidency appears to be "healing." But if that were an accurate description of Ford's administration, why are we currently suffering from an even worse version of Nixon's imperial, anti-constitutional presidency under the auspices of George W. Bush? Rather than healing the cancer, Dr. Ford seems merely to have presided over a brief period of remission. After recurring during the Reagan administration, today that cancer has metastasized and is threatening to kill the patient once and for all.

An aspect of the Ford pardon controversy that doesn't get mentioned enough is that fact that the pardon clearly violated the spirit of the Constitution and the express intentions of the founders. Article 1, section 3 states:

Judgement, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.

This clause could have ended with the words "United States." But the authors of the Constitution deliberately made a different choice. They carefully specified that a government official who lost his post through impeachment should also be subject to the normal processes of criminal law--not exempt from those processes, as Nixon was rendered through Ford's pardon.

I would not have objected if Ford had pardoned Nixon after the former president had been tried and either convicted or (less likely) acquitted. I had no special desire to see Nixon led away to a jail cell in handcuffs. But by pardoning Nixon before indictment or trial and thereby preventing an open airing in court of all the evidence relevant to the Watergate offenses, Ford damaged the nation in several ways:

1. He made it easier for Republican revisionists to spread the notion that Nixon and his fellow conspirators were victimized by the Democrats for partisan reasons rather than because of the crimes they committed.
2. He created a precedent for treating crimes against the Constitution as mere political pecadillos "(the criminalization of policy differences," as Bush the elder claimed during Iran-Contra) rather than as the serious offenses they are.
3. He signaled that the president is not subject to the law, like all other citizens, but rather is above the law.

Emboldened by the pardon, a generation of Republicans--including Dick Cheney and Donald Rumsfeld--made it their mission to restore power to the supposedly crippled White House. They took the process part of the way under Reagan, and under Bush the younger have been striving to complete the mission of transforming US government into a kind of elective monarchy. The chief question we face over the next two years will be whether the Democratic congress has the insight and will to arrest the process.

Gerald Ford seems to have been a decent man, and from the vantage point of 2006 it is easy to wax nostalgic over the memory of a truly centrist, civil, generally honest Republican president. But his chief legacy, the pardon of Nixon, was a terrible mistake that (I fear) will someday be recognized by historians as one of the milestones in the downfall of the American republic.

Tags: Gerald Ford, Richard Nixon, impeachment, pardon, Watergate, Constitution, Bush