Elon Musk has brazenly dismantled government agencies because he can feel assured of his insulation from the law. By the end of Donald Trump’s presidency, he may well receive a pardon. That’s what many recent pardons (Paul Manafort, the Biden clan, the January 6 insurrectionists) suggest: Presidential loyalists and family members are, in effect, immune from prosecution. On the most disturbing scale, they have become like diplomats who can park wherever they want.
The dawn of this age of impunity can be dated to any number of administrations. In his new book, The Pardon, Jeffrey Toobin makes a compelling case that a primary culprit is the 38th president, Gerald Ford. Toobin’s thesis is brashly revisionist; Ford’s pardon of Richard Nixon has gone down in history as a great act of beneficence. According to conventional wisdom, by immunizing Nixon from prosecution, Ford short-circuited years of polarizing legal proceedings against the former president that would have torn the nation asunder. But Toobin argues that this overpraised act of catharsis established a precedent of lawlessness. The road to Trump begins, in some moral sense, with the absolution of Nixon.
At a glance, the amiable Ford, a college football star and World War II veteran, seems impossible to villainize. Compared with Trump or Nixon, he was the picture of humble decency. On the day he became president, he lumbered out of his suburban-Virginia house in a bathrobe to pick up the paper. In the White House, he toasted his own English muffins. He told dad jokes, played in celebrity golf tournaments, and had a reputation for basically wanting to do the ethical thing.
Having stumbled into the Nixon presidency, as the replacement for the venal vice president Spiro Agnew, he stumbled into the presidency after Watergate. As Chevy Chase portrayed him on Saturday Night Live, dooming him in popular memory, he was always stumbling. The shtick drew on President Lyndon B. Johnson’s famous aperçu, “Jerry Ford is so dumb that he can’t fart and chew gum at the same time.” (Johnson also declared, “There’s nothing wrong with Jerry Ford, except that he played football too long without his helmet.”)
As the Watergate scandal unfolded, Ford made it his mission to learn as little about it as possible. He defended Nixon in the vaguest terms, and essentially ran in the other direction when Nixon asked him to examine evidence in the scandal. Ford stubbornly, and somewhat inexplicably, refused to prepare for the possibility that he might become president. He had initially accepted the vice presidency in the hope that it would be a capstone to his long political career. Indeed, that was the reason Nixon picked him: He knew that Ford had so little appetite for the big job, and so little political guile, that he was unlikely to conspire to oust him.
[Read: Trump’s pardons are sending a crystal-clear message]
In the days leading up to his ignominious departure, Nixon hatched a very Nixonian plot to exploit Ford’s goodwill and naivete. He wanted to pressure the future president into pardoning him without ever making a direct ask—a strategy he conceived with the White House counsel Fred Buzhardt, under the cover of attorney-client privilege.
On August 1, 1974, Nixon told Alexander Haig, his chief of staff, that he wanted him to begin preparing Ford to assume the job. “Tell him what’s coming,” he instructed. Nixon knew that Haig would check in with Buzhardt before sitting down with Ford. This was the twist in his scheme: Buzhardt had prepared a memo for Haig, listing six “endgame” scenarios for Ford to consider. In classic Washington style, he arrayed the possibilities so that every plan entailed a messy, prolonged handoff except for one: “Nixon could resign and then Ford could pardon him.” This was the elegant solution, but it had the whiff of corrupt horse-trading.
The pardon wasn’t something that Ford had ever considered, so he peppered Haig with questions about it. Although they didn’t agree to anything in the course of conversation, Ford’s interest had been ignited. He came to believe that a pardon genuinely served his own interests. When he finally assumed the job, he wanted to be more than a pleasant placeholder, and he could never be his own man without first disposing of the looming presence of Richard Nixon.
And so Ford talked himself into the pardon. He read a 1915 Supreme Court decision, which ruled that the acceptance of a presidential pardon is tantamount to admitting guilt, and convinced himself that the public would accept that legal logic. He would tell aides that he felt sorry for poor old Nixon, who he worried was in physical decline.
Ford pushed the process forward without really debating the merits of a pardon with his staff. His poorly argued, nervously delivered speech announcing the decision to the nation was so rushed that aides didn’t have time to prepare a teleprompter. Ford barely gave congressional leaders a heads-up, and none of them could quite grasp his reasons for haste. Tip O’Neill, the majority leader in the House, asked Ford, “Then why the hell are you doing it?” He posed that question minutes before Ford went on national television.
In the most outrageous passage of the speech, Ford declared the fate of Richard Nixon “an American tragedy in which we all played a part.” The public, having been accused of complicity, took its revenge. In a single week, Ford’s popularity plummeted 21 percentage points. His party suffered catastrophic collapse in that year’s midterm election.
[Jeffrey Crouch: O]ur Founders didn’t intend for pardons to work like this
With the benefit of time, however, Washington revised its opinion of the decision. Bob Woodward, of all people, eventually concluded, “Ford was wise to act. What at first and for many years looked like a decision to protect Nixon was instead designed to protect the nation.” Ford slowly remerged with the reputation of a healer, a man of grace.
That revisionism is nostalgic gloss. Toobin makes a damning, nuanced case against Ford. Nixon had, at that point, committed the worst crimes in the history of the presidency, vividly and irrefutably captured on tape, and he escaped without any punishment. He received absolution without displaying remorse. “The pardon was just a free pass handed from one powerful man to another,” Toobin writes.
Despite his earnest desire to undo Nixon’s legacy, Ford’s pardon was itself an assertion of the imperial presidency. That’s because the pardon is an inherently Caesarean implement. In every other facet of the American system, carefully installed safeguards are designed to limit the authoritarian exercise of power. But there is no curb on the pardon other than the conscience of the executive issuing one. Presidents tend to tacitly admit that they are misusing this authority when they sheepishly hoard pardons for the final hours of their administration, waiting for the moment when there’s no political price to pay and hoping that their shabby behavior is drowned out by the inaugural hoopla.
By absolving his former patron, Ford helped create a new Washington ritual: the moment when presidents release their cronies, friends, and family from the bonds of justice. George H. W. Bush sprinkled his magic forgiveness dust over Casper Weinberger, Robert McFarlane, and Elliot Abrams, among others, letting them off the hook for the Iran-Contra scandal. Bill Clinton bailed out the financier Marc Rich, whose alleged crimes included buying oil from Iran in defiance of an embargo. (Rich’s wife was a generous donor to Clinton.) And then Joe Biden had the temerity to pronounce himself a defender of the rule of law before he used his presidential powers to insulate his own family from potential prosecution.
Over the past few weeks, Donald Trump has exposed the flimsiness of American institutions. Pressure-tested by his audacious assault on the civil services, those institutions instantly folded. But when a bridge tumbles into a river, the rivets and bolts don’t suddenly fail. They erode over generations. This is what happened in Washington: The unfettered power of the president kept expanding, Congress entered a state of sclerosis, the parties became apologists for their leaders, and courts fell into the hands of ideologues. As Toobin depressingly shows, even upstanding nice guys like Gerald Ford played their part in the collapse.