Friday, July 9, 2010


Hey, as long as I'm replying to people who disagree with my comments on ancient history: how about another one?  Mori Dinauer says:
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.


  1. I strongly disagree. This was a terrible precedent, and it set the groundwork for what we currently have - a runaway executive branch that claims for itself the right to act illegally in ways that Nixon can only have dreamed of. I remember the shocking statement of Nixon that he believed that "if the president does it, it's not illegal." That is effectively where we are now. Perhaps if Nixon had in fact been tried and jailed, Bush and Cheney (and now Obama and Biden) would have thought again before setting out to create the national security state we now have - one that makes a mockery of the Constitution - torture, summary executions, indefinite detentions, warrantless wiretapping and gathering of personal information.

  2. But this opens up the can of worms on Bush.

    I tend to think that for Nixon's crimes, the appropriate punishment was available to voters in 1976: vote Democratic, even if their nominee is a peanut farmer with poor governing skills. Nixon's crimes were really two-fold: trying to steal an election, and covering it up. Both of these crimes, while serious, amount to attempts to pervert democracy (either electoral or judicial). I see nothing wrong with letting democracy fix the problem. I think of it as akin to courts staying out of Congress' business as a political problem that, if people want remedied, they'll vote for different congresspeople. Now, if Nixon had chosen to stay in office: VERY different story. The potential that an election was somehow monkeyed with (even though there's no way the plumbers caused the landslide of 1972) is extremely serious, and cannot be allowed to remain unfixed. Impeachment and removal of Nixon: perfectly appropriate.

    But, this brings us back to Bush et al. In essence, a pardon for Bush and company is to say that, a la Nixon, we're done with this and only a pardon lets us move on. The problem is twofold: first, with Gitmo still open, etc., its not clear that we're done with this. Thus, a trial is perfectly appropriate as the problem is (potentially) on-going. Second, and related to my point on Nixon, the problem is not one of democracy. The problem is that Bush's supposed crimes involve torture and many thousands of deaths. While we can argue about the merits of his policies, there can be no question that the conseqeunces are much more serious than Nixon's.

    Personally, I can't imagine that Bush et al are guilty of too many US law violations (other than the typical ones in a case like this: coverups and such). However, the question as to whether they are war criminals is, to me, a fair one. We could say "let's move on" but that's simply not possible for the thousands of dead Americans and Iraqis. I think that Bush et al could make a compelling case as to the legality and legitimacy of the Iraq war and their prosecution of it (much better of a case than, say, German concentration camp guards or Pol Pot or...the list goes on). However, a pardon is simply accepting such a case because one doesn't want to make a bunch of Republicans unhappy. Justice shouldn't be in service to the happiness of a minority of the population.

  3. Gloves,

    I guess all I can say is that I don't see it, but I don't think anyone can prove things one way or another. Had Nixon wound up in jail -- instead of just bounced out of office and disgraced -- would the difference be enough to change the behavior of future presidents? I think they would have told themselves that things were different now, or that they weren't "really" breaking the law, or that it would never come to that -- or not, if the impeachment story was enough already.


    I'm not really going to respond much except to say that with Nixon it's a fair bit more than trying to steal an election, although that was part of it. It's also about (trying to) stifle dissent, and it's also about eliminating the normal checks and balances within gov't.

  4. "(even though there's no way the plumbers caused the landslide of 1972)"

    Matt, are you factoring in the dirty tricks that drove a better candidate like Muskie from the race?

    JB, if Nixon had gone to jail would the perpetrators of Iran/Contra have felt so free to plot?

  5. Jonathan, I think Nixon's pardon, while probably the right call, did in fact set a precedent that allows heads of state to escape prosecution under the Constitution and to live out their lives (most likely) in wealth and seclusion, not an entirely distasteful option even for an ambitious person like a president. The reality is that the United States can't ever be perceived as a country that has messy political issues. We are a well-oiled machine firing on all cylinders, and the suggestion that we're a hot mess (as we were during the Bush administration and are fast becoming under the Obama administration) reduces our status in the world. Exceptionalists like the Cheneyites and Palinites could and would not stand for that. I don't think I'd like it either, but I would opt for following the law rather than looking bad because in the long run following the law looks good.

  6. Johnny,
    I am, to the extent that, like Jonathan, I pretty much think the fundamentals predicted most of Nixon's win. Income growth above 3%, and you got yourself a landslide. Nixon slightly outperforms the standard election model, but it's one of the top 3 economies in the post-war period (1964, 1984 being the other two)

    Thus, Nixon was trying to fix an election that didn't need fixing. Still a scumbag, but you can't steal an election that's already yours.

  7. Matt,

    The standard models often include the candidate's ideology...shifting from Muskie (or Humphrey, or one of the others) to McGovern probably shifts the standard model a couple of ticks Nixon's way. So it's not nothing (esp. since any overperforming could have been the result of what a bad candidate McGovern in particular was). So, yes, but there's still that. OTOH, we can't really conclude that w/out Nixon and dirty tricks the Dems would have nominated someone else.

    It's also worth remembering what while Watergate was actually going on, it looked like it was going to be a close election, even up through early June, maybe.

  8. At the time I thought the pardon was the right thing for all the reasons cited above. In retrospect I think it was a mistake.

    There is a continuous thread between Watergate, Iran-Contra, and all the terrible crimes committed by the Bush-Cheney administration-- from Plame and Iraq to illegal wiretapping to crony capitalism to torture. The people who committed these worst ever crimes in America's history are the ones that worked for the Watergate criminals. At each junction we failed to hold them accountable and they kept getting worse. I'm not sure we've seen the worst yet. We still can't hold them accountable. The Palin generation looks more corrupt than the last.

    It's time to admit that pardoning Nixon was a huge mistake. It was the original sin that gave us the GOP we have today.


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