Supreme Court’s Trump ruling would have given Nixon immunity
The ruling is a radical revision of the Constitution, argues Ken Hughes
Gerald Ford knew Richard Nixon could be prosecuted for crimes he committed as president. That was simply a fact, when President Ford gave his predecessor “a full, free, and absolute pardon” 50 years ago this week.
Former presidents did not enjoy broad immunity from criminal prosecution until July 1, 2024, when six members of the Supreme Court created that privilege in Trump v. United States.
In 1974, when Nixon’s resignation seemed likely to lead to prosecution for his role in many of the crimes of Watergate, Republicans in the White House and Congress took their cue from the Constitution. Article II, Section 4 established that former presidents had criminal liability, not criminal immunity. Even after impeachment, conviction and removal, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Ford faced that fact squarely in his pardon proclamation: “As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States.”
Nixon had a right to a fair trial, Ford said. The Constitution guarantees that to all. But Ford raised doubts about whether America would be able to give Nixon a fair trial until months, perhaps years, elapsed. That was his justification for pardoning Nixon.
It wasn’t good enough for most Americans.
From anger to respect
Only 26% of Americans supported the pardon in one poll, with 59% opposed.
Reporters interviewed outraged citizens.
“What about the others in his administration who are being tried?” asked John Dawdy, a Vietnam veteran and law student. After all, Nixon’s co-conspirators, including a former attorney general and former White House chief of staff, received fair trials.
Joseph Hickel, a refugee from Czechoslovakia, saw “a danger of future crimes” by presidents if Nixon’s went unpunished. Ann Robinson of Cerritos, California, said, “Giving that pardon makes it seem that the man in office is a king.”
Opinion shifted as Watergate receded in memory, and by 1986, one poll found only 39% opposed to the Nixon pardon and 54% in favor.
Sen. Ted Kennedy, a Democrat from Massachusetts and a critic of the pardon in 1974, later concluded that Ford was right and gave him a Profile in Courage Award in 2001 for taking an unpopular but conscientious stand.
During the Donald Trump administration, when another president was under investigation for impeachable and indictable offenses, public opinion of the Nixon pardon shifted again, with Americans perfectly polarized: 38% in favor, 38% against.
In light of the Trump experience, some historians looked back and saw the Nixon pardon in a new light: as a damaging precedent establishing presidential impunity.
