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January 8, 2007

Ford: A Lincoln and an Imperial(ist)


David R. Henderson

One of the late Gerald Ford's favorite sayings during his first few weeks of office was that he was "a Ford, not a Lincoln." Ford meant it as a statement of his humility. Ford's humility was, in fact, one of his best character traits. But in pardoning Richard Nixon a month after becoming president, Ford showed himself to be very much like Lincoln. And in doing so, Ford set a bad precedent, making it easier for future presidents to break the law and to abuse the power of the presidency because he had increased the probability that they would not be held to account.

The first day of my economics classes, I lay out what I call "The Ten Pillars of Economic Wisdom." Pillar number two is that incentives matter – incentives affect behavior. I point out that we tend to engage in behavior that is rewarded and to avoid behavior that is punished. Reward some bad behavior and refrain from punishing it, and you will get more of that behavior. That is why Ford's decision to pardon Nixon was so destructive. It sent a strong signal that future presidents would not be made legally accountable for their behavior. And in making that decision, Ford did his part to contribute to "the imperial presidency."

Not that the imperial presidency wasn't far along before Ford; it was. In February 1937, just after his re-election, Franklin Roosevelt, frustrated that the "nine old men" of the Supreme Court were finding his New Deal unconstitutional, had threatened to "pack" the Supreme Court – that is, increase its number from nine to fifteen and appoint six new justices – so that instead of losing many votes by five to four, he would win by a wide margin. Although Congress resisted, Roosevelt's threat worked and in March 1937, Justice Owen Roberts suddenly started voting very differently on federal intervention than he had voted earlier. His switch was thereafter known as "the switch in time that saved nine." Then, in May 1937, conservative Justice Van Devanter resigned, giving FDR even more running room. From then on, the Supreme Court virtually ceased to be a protector of economic freedom. This made FDR, and the presidency in general, more imperial than they had been.

Actually, though, Abraham Lincoln did more than any other president of the 19th century, and possibly more than any of the 20th century, to give future Presidents a privileged position in which they were legally unaccountable. Abraham Lincoln rode roughshod over people's rights, suspending habeas corpus (Article 1 of the Constitution gives that power solely to Congress, not to the President) and jailing political opponents, the most prominent of whom was Ohio Congressman Clement L. Vallandigham, for example. And Lincoln got away with these things – he didn't come close to being impeached, let alone going to jail.

In other words, the White House that Gerald Ford entered in August 1974 was one that had gained huge powers in fits and starts, powers that the Founding Fathers did not intend the president to have. Of course, I haven't mentioned the most important power virtually every president of the 20th and 21st century has claimed for himself – the power to declare war, a power that Article 1 of the U.S. Constitution expressly gives to the U.S. Congress. So the Supreme Court abdicated some of its power over the President, and Congress abdicated some of its powers. What were left were the lower courts, which could try a former president for various crimes that most of the rest of us would get tried for if there were enough evidence to get an indictment. But Gerald Ford put an end to that possibility by pardoning Nixon.

And what was Ford's reason for pardoning Nixon? The most obvious reason to think of is that Ford had made a deal with Nixon in return for Nixon's resignation. Ford always denied that adamantly and we may never know whether there was such a deal. But Scott Shane, in his excellent reporting on this in the New York Times, shows that, at best, Ford got awfully careless by explicitly discussing a pardon with Nixon's chief of staff Al Haig before Nixon resigned. In "For Ford, Pardon Decision was Always Clear-Cut," New York Times, December 29, 2006, Shane writes:

"Mr. Haig told Mr. Ford that White House tapes would soon prove Nixon's role in the Watergate cover-up and outlined several possibilities for Nixon's departure. He handed Mr. Ford two pieces of paper: a description of the presidential power to pardon and a blank pardon form."

Hint, hint.

Even if we take Ford at his word, consider his speech in which he announced his pardon of Nixon. In paragraphs 1 through 7 of Ford's speech, not quoted here, he talks about the laws, the uncertainties about what Nixon had done, and Ford's obligations under the Constitution. They also contain a zinger that would have made a Ted Kennedy speechwriter blush. Kennedy, in his speech after Chappaquiddick, had only enough gall to say that his causing Mary Jo Kopechne to drown was a bad experience for the Kennedy family ("The last week has been an agonizing one for me, and for the members of my family;"). Ford's made the plight of Richard Nixon the plight of the whole country. Ford stated, ‘Theirs [the Nixons'] is an American tragedy in which we all have played a part." Gee. I didn't know I had played a part. In 1973, I was a summer White House intern with Nixon's Council of Economic Advisers; maybe I did something in my sleep.

But here's what Ford said in paragraphs 8 through 18 of his speech. I quote it at length for reasons that will be clear shortly:

"There are no historic or legal precedents to which I can turn in this matter, none that precisely fit the circumstances of a private citizen who has resigned the Presidency of the United States. But it is common knowledge that serious allegations and accusations hang like a sword over our former President's head, threatening his health as he tries to reshape his life, a great part of which was spent in the service of this country and by the mandate of its people.

"After years of bitter controversy and divisive national debate, I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.

"I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.

"The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.

"During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.

"In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.

"But it is not the ultimate fate of Richard Nixon that most concerns me, though surely it deeply troubles every decent and every compassionate person. My concern is the immediate future of this great country.

"In this, I dare not depend upon my personal sympathy as a long-time friend of the former President, nor my professional judgment as a lawyer, and I do not.

"As President, my primary concern must always be the greatest good of all the people of the United States whose servant I am. As a man, my first consideration is to be true to my own convictions and my own conscience.

"My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquillity but to use every means that I have to insure it. I do believe that the buck stops here, that I cannot rely upon public opinion polls to tell me what is right. I do believe that right makes might and that if I am wrong, 10 angels swearing I was right would make no difference. I do believe, with all my heart and mind and spirit, that I, not as President but as a humble servant of God, will receive justice without mercy if I fail to show mercy.

"Finally, I feel that Richard Nixon and his loved ones have suffered enough and will continue to suffer, no matter what I do, no matter what we, as a great and good nation, can do together to make his goal of peace come true."

Paragraphs 19 and 20 contain the pardon statement.

Consider the above-quoted paragraphs. In the first six, paragraphs 8 through 13, Ford's concern is entirely for Richard Nixon – Nixon's health, whether he'll get a fair trial, etc. In paragraph 18, he goes back to his concern for Nixon. In the 7th paragraph quoted, Ford says that it is not Richard Nixon's fate that most concerns him but, rather, the immediate future of the United States. This is a lot like Mark Anthony's funeral oration for Julius Caesar, though not as subtle. Mark Anthony claimed that he was there not to praise Caesar, but to bury him, and then went on to praise Caesar. Ford claimed that his concern was not mainly for Nixon, but for the country, and spent the largest part of his speech expressing his concern for Nixon. I don't think I ever heard Ford (and I followed his presidency a lot) express nearly the same concern for other people charged with crimes who were more likely than Nixon to get an unfair trial.

This leaves only 4 paragraphs, 14 through 17, for Ford to tell us how not pardoning Nixon would hurt the country. How exactly would the country's future be in jeopardy if Nixon were left to fend for himself in the nation's courts? Well, as you can see above, the closest he comes to telling us is to say that if he doesn't pardon Nixon, he'll "prolong the bad dreams." Got it? Ford saw it as his job to let us get some untroubled sleep. Pardon me, so to speak, if I'm not impressed.

And what have been the consequences? Look at our current president. One of the most striking passages in Bob Woodward's Bush at War and also one of the more believable passages is the following statement that Woodward quotes Bush as saying:

"I'm the commander – see, I don't need to explain – I do not need to explain why I say things. That's the interesting part about being president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation." (pp.145-146.)

In short, Bush appeared to be celebrating his unaccountability. Where did he get the idea that he was unaccountable to anyone? I can tell you where. He got it from paying attention to what presidents get away with routinely. Although Ford can't be held totally responsible for the fact of unaccountability, he certainly did his part to increase the unaccountability and thus make the president, whoever it was, even more imperial. That, unfortunately, is probably his main legacy whether or not historians ever recognize it as such.

Now, I realize that some may read this article and think it inappropriate to discuss the negative effects on the country of President Ford's pardon of Nixon. But that train has left the station. We have seen encomium and after encomium of Ford in the last week or so, with people of various political persuasions saying how great a decision it was for Ford to pardon Nixon. Once they've said that, it becomes fair game (in truth, it was fair game anyway) to examine that decision. We have little enough accountability of Presidents as it is. President Ford made that worse.

Copyright © 2007 by David R. Henderson. Requests for permission to reprint should be directed to the author or Antiwar.com.

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David R. Henderson is a research fellow with the Hoover Institution and an associate professor of economics in the Graduate School of Business and Public Policy at the Naval Postgraduate School. He is author of The Joy of Freedom: An Economist’s Odyssey and co-author, with Charles L. Hooper, of Making Great Decisions in Business and Life (Chicago Park Press.) His latest book is The Concise Encyclopedia of Economics (Liberty Fund, 2008.)

He has appeared on The O’Reilly Factor, the Jim Lehrer Newshour, CNN, and C-SPAN. He has had over 100 articles published in Fortune, the Wall Street Journal, Red Herring, Barron’s, National Review, Reason, the Los Angeles Times, USA Today, and the Christian Science Monitor. He has also testified before the House Ways and Means Committee, the Senate Armed Services Committee, and the Senate Committee on Labor and Human Resources. Visit his Web site.

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