I'm not clear why Jonathan Bernstein thinks Gerald Ford's pardon of Richard Nixon was the right call. He says that "the trial of Richard Nixon would, in fact, have consumed the nation" and that "the nation deserved a functioning political system, and the pardon helped that to happen." But this feels a bit like the defenses of the Supreme Court intervention during the 2000 elections: Stop the recount -- lest the nation devolve into anarchy.Unlike the Mondale/Hart question, I think this is much more of an open question; I think the pardon was the right call, but I certainly think the other side has good arguments. I do think the analogy with Bush/Gore doesn't work well. The problem with the "stop the recount -- lest the nation devolve into anarchy" argument wasn't that chaos was a bad thing; in fact, there was every reason to try to resolve the disputed election quickly. The problem was that the Court chose, from all the various options out of chaos, one that involved the Court arbitrarily choosing a winner for the election. Since there were plenty of other available options to avoid chaos, the Court erred, at least in my view. In other words, having the Court arbitrarily choose the winner of the election was a cost that didn't have to be paid.
In the Nixon case, it's a lot less clear whether the pardon actually had much of a cost. In my view -- and as I said, I think the other side has reasonable arguments as well -- the cost was minimal. As far as deterrent value was concerned, I'm not at all convinced that jail time for Nixon would affect the calculations of future presidents. The cost of losing the presidency is so high that adding jail time to it just doesn't seem to be that big a deal, at least in my opinion. There's also the question of showing respect for the rule of law, but again, the imprisonment of so many high officials, and the loss of the White House for Nixon, I think covered that fairly well. I'm not convinced that a Nixon trial would have made much of a difference to that.
It's also worth thinking about exactly what charges would have been offered, and what the trial would have been like. Unlike an impeachment trial, where the prosecutors would have plenty of license to talk about the overall conspiracy, a criminal trial for Nixon would have been focused on specific charges that might not really get at the essence of just how terrible Watergate was. Basically, I suspect a criminal trial would have been limited to obstruction of justice -- bad enough -- but an impeachment trail in the Senate would have also included abuse of power, and that gets to some of the most important things that happened. To put it another way, it's bad enough that people now believe the myth that the problem with Watergate was the cover-up, not the crime; had there been a Nixon prosecution focused only on the cover-up, the myth would be that much stronger.
Nixon deserved jail. No question about that. I just don't see that the benefits to the nation in insisting on it were that great, and I do think that the costs would have been significant.