Trump's Pardons Make the Unimaginable Real

By Tim Naftali, The Atlantic

24 December 20

He may now attempt what no one thought a president would ever try.

esterday evening, President Donald Trump issued 15 pardons and five commutations, including two for individuals found guilty of charges arising from Special Counsel Robert Mueller’s investigation. He is reportedly considering a raft of other Christmas pardons—for sympathetic allies, for loyal retainers, and even for family members.

The prospect of a president using his power to protect aides accused of breaking the law is disturbing, but it’s hardly novel. In 1973, President Richard Nixon mulled over the idea of issuing Christmas pardons for his Watergate co-conspirators.

Nixon’s pardons would have been—and many of Trump’s pardons certainly would be—bad presidential pardons. In 1925, thanks to a Chicago innkeeper’s decision to ignore a court injunction to stop selling alcohol during Prohibition, the Supreme Court took the time to explain why: “To exercise [the pardon power] to the extent of destroying the deterrent effect of judicial punishment would be to pervert it.”

But despite seeing that danger clearly, the chief justice at the time, writing for a unanimous Court in Ex Parte Grossman, declined to limit the presidential prerogative. He was certain that no president would ever be so corrupt as to issue bad pardons. “Our Constitution confers this discretion on the highest officer in the Nation in confidence that he will not abuse it,” he wrote. And the chief justice thought he was uniquely qualified to say so: William Howard Taft is the only member of the Court ever to have been president. Taft considered himself a gentleman, and he expected his successors to behave like gentlemen, too.

Fifty years after Taft issued that opinion, Nixon challenged the assumption that no president would use a pardon to undermine the American system of government. As we await Trump’s Christmas pardons, with the expectation that many will be self-serving and injurious to the pursuit of justice, the intertwined tales of Taft and Nixon help explain why, after two centuries, we are still so vulnerable to bad pardons, a power that the Framers left unchecked.

Philip Grossman, who just wanted to make a buck selling hooch in 1921, had no idea that his being found guilty of contempt of court—with a one-year sentence and a $1,000 fine—would prompt the Supreme Court to establish a broad interpretation of the presidential pardoning power. But Calvin Coolidge, who became president in 1923 when the hapless Warren G. Harding died, decided later that year to commute Grossman’s sentence for contempt of court, eliminating the jail time (but keeping the fine).

The U.S. District Court for the Northern District of Illinois didn’t much like this presidential meddling, seeing Coolidge’s intervention less as an act of presidential mercy than as a direct threat to the entire American justice system. In defiance of the commutation, the court sent Grossman to the Chicago House of Correction. The case ended up at the Supreme Court.

The lower court posed a question that many Americans are now considering: Did the Founding Fathers somehow goof up and give presidents the right to wreck the very institutions they are sworn to protect? The character of Coolidge wasn’t at issue in 1925; the character of his pardon was.

The question in that case was whether a president could pardon an individual found guilty of contempt of court. The case raised two issues: Was the offense of “contempt of court” included in the phrase “offenses against the United States” as understood in 1787? And was it the intention of the Framers to allow presidents the right to undermine the judicial system by condoning contempt toward it?

A decade earlier, fresh into his post-presidency, Taft had written about the pardon:

The duty involved in the pardoning power is a most difficult one to perform, because it is so completely within the discretion of the Executive and is lacking so in rules or limitations of its exercise. The only rule he can follow is that he shall not exercise it against the public interest. The guilt of the man with whose case he is dealing is usually admitted, and even if it is not, the judgment of the court settles that fact in all but few cases. The question which the President has to decide is whether under peculiar circumstances of hardship he can exercise clemency without destroying the useful effect of punishment in deterring others from committing crimes.

As chief justice, Taft answered his own question in the affirmative:

If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.

The Nixon White House was aware of Taft’s broad interpretation of the pardon power, and liked it. In July 1971, the counsel to the president, J. Fred Buzhardt, sent a study of presidential pardons by an outside consultant to White House Counsel John Dean. “The power of the President to pardon is so unfettered,” the report stated, “that the Supreme Court has even said, through the pen of Mr. Chief Justice Taft, in Ex Parte Grossman 267 U.S. 87 (1925), that even should the Chief Executive pardon contempt convictions to the extent of destroying the judicial system of the nation, the proper recourse for correction would be through impeachment ‘rather than to a narrow and strained construction of the general powers of the President.’”

Exactly a year later, after five men working for Nixon’s reelection committee were arrested while planting listening devices in the headquarters of the Democratic National Committee at the Watergate office complex in Washington, D.C., Nixon set out to test the Taft decision: Could he pardon members of a conspiracy who were engaged in criminal activities designed to benefit his campaign without triggering an impeachment inquiry? After attempts to control the FBI’s investigation of the break-in had failed and the Justice Department was taking depositions from the reelection-campaign managers for a civil suit launched by Democrats, Nixon thought he could—and came up with a devious plan.

In a meeting with Charles Colson, one of his political advisers, on July 19, Nixon said he wanted to grant a pardon to all five Watergate burglars and their two supervisors, former FBI Special Agent G. Gordon Liddy and the former CIA officer E. Howard Hunt. But the pardon, he said, had to come as part of a general amnesty that involved “both sides.” Five days earlier, a grand jury in Tallahassee, Florida, had indicted six members of Vietnam Veterans Against the War—the so-called Gainesville Six—alleging that they were plotting violence against the Republican National Convention in Miami, slated for August.

Discussing which activists would be part of the plan, before identifying the whole group, Nixon said, “There’s bound to be … the Vietnam Veterans Against the War conspiracy … By God, be sure they have some of those guys with charges still hanging on after the election.”

“[I] see this morning they grabbed some,” Colson replied.

“Huh?” asked Nixon.

“They grabbed some this morning,” Colson said.

“Some … Now, if you can keep some of them alive and others arise … Then we’ve got to pardon the whole kit and caboodle after the election,” Nixon said.

“And nobody’s going to pay a nickel’s worth of attention,” Colson assured him.

“Provided there’s some on the other side,” Nixon replied.

Two weeks later, the plot turned even more convoluted. On August 1, in the midst of a discussion about paying hush money to the Watergate burglars, Nixon asked White House Chief of Staff H. R. Haldeman whether the White House was “doing our best to be sure” that the Gainesville Six were “kept under indictment, or—whatever it is—they are charged until after the election, on the other side, you know what I mean. That veterans’ group down there in Florida … the strategy [is] … you’ve got to pardon everybody.”

Haldeman replied by suggesting to Nixon that, to ensure the strategy’s success, “what we’re trying to do is get some more,” adding mysteriously, “We’ve got some target money.” Nixon wasn’t sure, and wanted details. Haldeman suggested that more anti-war activists could be picked up “where they appear to be doing something.” He assured the president that there would certainly be cause to do it at the convention later that month, and they could hold on to them, just to sell a Watergate pardon. Nixon didn’t push back.

This would have been the most corrupt pardon in modern U.S. history. And Nixon and his henchmen believed that their only restraint was political. Constitutionally, according to the Taft doctrine, Nixon could use the pardon power to assist in a criminal cover-up as long as he didn’t provoke impeachment. There hadn’t been an effort at impeachment since the trial of Andrew Johnson in 1868. The prospect seemed unlikely a century later.

Apparently, the Watergate cover-up initially worked so well that Nixon assumed he didn’t need to bother with a cynical postelection bipartisan political pardon. In October, the Gainesville Six became the Gainesville Eight with the indictment of two additional Vietnam veterans—and it’s possible that these new indictments were somehow linked to Nixon’s political needs. But the immediate danger to the president was subsiding. The burglars and their two managers were keeping their mouths shut, and the perjury committed by the leadership of the president’s reelection committee in FBI interviews limited the indictments to just those seven men.

Although the idea of a grand political pardon wasn’t discussed in the White House after the Watergate indictments were announced in September 1972, Nixon never lost sight of the utility of pardons to limit Watergate’s damage. Whenever cracks seemed to be appearing in the cover-up, Nixon quickly dangled a pardon in front of potential whistleblowers. Unlike the cynical “both sides” political pardon, these inducements had to be kept secret from Congress and the public.

In January 1973, Nixon privately assured Colson that Colson’s friend E. Howard Hunt, whose wife had just died in a plane crash, would get a pardon: “Don’t worry about Hunt,” he said. Assuming that Colson would share this news with Hunt’s lawyer, Nixon cautioned him that the rest of the burglars “must not expect [a pardon] at the same time.”

When fears resurfaced in March 1973 that the Watergate Seven, who received unusually long sentences from District Court Judge John Sirica, would start talking, Nixon once again conferred with Haldeman about pardoning them. “If Sirica can sit there and use the threat of a sentence, why can’t we use the promise of clemency?” Haldeman asked. “They play this partisan, politically,” Nixon responded, trying to talk himself into believing that a one-sided pardon would be politically survivable. The next day, without any sense of irony, Nixon and Haldeman discussed whether this political pardon should be issued to mark the Bicentennial. Nixon then told Haldeman that he preferred a Christmas pardon in 1974.

A month later, when the Senate Watergate investigation began picking up momentum and the ever-expanding cover-up required sacrificing Haldeman, Dean, and Nixon’s chief domestic adviser, John Ehrlichman, Nixon raised the possibility of issuing more pardons. Nixon mistrusted Dean but wanted to do something to retain the loyalty of Haldeman and Ehrlichman, whom he had just forced to resign. On May 18, Nixon ostentatiously promised pardons directly to both of them, in a conversation caught on tape:

Nixon: “I don’t give a shit what comes out on you or John or even that poor, damn dumb [former Attorney General] John Mitchell, there is going to be a total pardon.”

Haldeman: “Don’t even say that.”

Nixon: “You know it. You know it and I know it. Forget you ever heard it.”

Dangling pardons had just gotten more politically risky for Nixon. In the first week of May, Newsweek had published a scoop that Dean was in negotiations to testify before the Senate Watergate Committee that Ehrlichman had told him Nixon had promised a pardon to E. Howard Hunt. It was the first time that Nixon had been publicly linked to an effort to use his pardon power as part of a White House cover-up.

Nixon, however, was undeterred. Five days later, after secretly promising pardons to his former top advisers, Nixon publicly addressed the rumors that he had dangled a pardon to obstruct justice. “In a statement issued from the White House,” Nixon later wrote confessionally in his memoirs, “I said that I had not authorized any offer of executive clemency for any of these defendants. Thus I set more traps that would be sprung by the tapes months later.” Although he had not formally authorized any pardons, Nixon had indeed promised them, indirectly to the burglars and directly to his top co-conspirators.

After May 1973, thanks to the Senate investigation, Dean’s defection, and active digging by the media, the fear of impeachment did become a restraint on this corrupt president’s abuse of the pardon, as the Founders would have hoped. With the cat out of the bag about Nixon’s motives in using pardons, the option of hiding political pardons in a grand bargain to free Vietnam dissenters could no longer work. Nixon’s co-conspirators either resigned or were fired, and the remaining White House staff was wary of dangling, let alone issuing, any presidential promises of clemency. Meanwhile, Nixon’s strategy for saving the cover-up gradually became focused on making sure no one outside the White House heard his tapes.

But once the Nixon presidency entered its terminal phase, in July 1974, the calibrated system to restrain the president’s pardoning power established by the Founders, and ratified by Taft, began to fall apart. The House Judiciary Committee approved, with bipartisan majorities, three articles of impeachment. The Supreme Court, in United States v. Nixon, unanimously ordered Nixon to turn over more of the White House tapes, with three of his appointees voting against him and the fourth recusing himself. The president faced enormous pressure to resign, some of it coming from within the White House. Suddenly, Watergate pardons came back into the picture, including, for the first time, the idea of Nixon pardoning himself.

Neither the Founding Fathers nor Taft had considered that a president might resign at the threat of impeachment. At the Constitutional Convention, the Framers had debated what to do about a president who used pardons to further treasonous activity, at one point suggesting that the Senate should intervene in such a case. In the end, dropping any role for the Senate, they agreed on the language: The president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

But if impeachment were taken off the table because a president chose to leave before he could be removed, would there be any restraints left on his use of pardons? Could he, in fact, pardon himself? For Nixon and his second chief of staff, Alexander Haig, two years of discussion about the use of the pardon to contain the Watergate scandal now came down to how to use the pardon to protect one individual: Richard M. Nixon.

On August 1, Counsel to the President Buzhardt outlined three possible options to Haig for pardoning the president. As Bob Woodward and Carl Bernstein later described the scene in Final Days, Buzhardt said Nixon “could pardon himself and resign”; “pardon Mitchell, Haldeman, Ehrlichman, and all the rest and then resign”; or “resign and hope that [Vice President Gerald] Ford would pardon him.”

Haig went to Ford and outlined these options—as well as a few others if Nixon decided to fight on—apparently hoping that Ford would endorse a pardon and make it easier for Nixon to decide. Ford listened silently and then explained that he needed to speak with his wife, Betty. Later that same day, Nixon tentatively agreed with Haig to announce his resignation on Monday, August 5, when the White House would have to turn over more tapes pursuant to the Supreme Court decision.

But Ford didn’t act as Haig—and likely Nixon—had expected. The next day, Ford called Haig and, reading from a handwritten note, said in front of witnesses, “I want you to understand that I have no intention of recommending what the president should do about resigning or not resigning and that nothing we talked about yesterday afternoon should be given any consideration in whatever decision the president may wish to make.”

On August 2, with no promise of a pardon, Nixon balked, deciding that he wasn’t going to resign on Monday after all. He would take his chances with Congress, and with the public’s response to the release of a recording from June 23, 1972. That recording would become known as the “smoking gun” tape, because on it, Nixon approved a cover-up plan to have the CIA interfere in the FBI’s Watergate investigation on the phony pretext that national-security issues were involved.

Nearly 50 years later, there is still an eyewitness to what happened next. “Haig was trying to convince Nixon to resign,” remembers Laurence H. Silberman, now a senior judge of the U.S. Court of Appeals for the D.C. Circuit, who in August 1974 was deputy attorney general. “I do recall Haig gingerly pushing Nixon.”

Silberman asked the Department of Justice’s Office of Legal Counsel, which provides legal guidance to the executive branch, to write an opinion on whether Nixon could be pardoned in office, including by himself. “I’m pretty sure it was responsive to Haig,” Silberman told me, “who sometimes called me directly rather than go to [Attorney General William] Saxbe, who was a bit impulsive. It was embarrassing, and I tried to keep Bill apprised.”

Silberman recalls Haig asking about the constitutionality of a self-pardon, but not posing that question at Nixon’s initiative. “Haig was trying to convince Nixon to resign, and I think that may have been something that he would have been thinking of as an inducement,” he told me. Silberman assigned the task of producing the opinion to Acting Assistant Attorney General Mary C. Lawton, who with the retirement of OLC chief George Dixon earlier in the year was the ranking member of the office.

On August 5, Lawton hand-delivered her response to Silberman. The memorandum dismissed the idea that a presidential self-pardon could be constitutional. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” Lawton concluded. Nixon could, however, use the Twenty-Fifth Amendment to resign temporarily, and then Ford, as acting president, could pardon him—although Ford would be under no obligation to do so. Lawton also determined that Congress lacked the constitutional authority to pardon Nixon. “I thought Mary Lawton’s piece was quite superficial,” Silberman told me, although he doesn’t recall disputing the memo’s substance at the time.

As rumors persisted that Nixon was considering resignation, Ehrlichman and Haldeman repeatedly contacted the White House to remind Nixon of his promise to pardon them. Haldeman was still pushing the notion of linking pardons to a Vietnam amnesty, although Nixon had dropped the idea long before. Haldeman drafted a long letter arguing for a grand pardon of all the Watergate conspirators and all Vietnam-era draft evaders.

But as the walls closed in, Nixon decided not to issue any pardons related to Watergate. With the release of the “smoking gun” transcript on August 5, Nixon’s remaining political support among conservative Republicans collapsed, leaving him no option but to resign or face impeachment and conviction. Nixon’s lieutenants could no longer protect his presidency, and it’s not clear if he cared about their fate. In fact, pardons could backfire on Nixon, removing the incentive that former aides had to lie on his behalf.

But why didn’t he take a chance on a self-pardon, which Buzhardt thought was legitimate? We cannot be sure, but Silberman’s recollection suggests one possible explanation: the shock of the U.S. v. Nixon decision amplified by the doubts of Nixon’s own Justice Department. “I am not sure,” Silberman told me, “but I think I told Haig that it would surely end up in the Supreme Court if Nixon pardoned himself and the special prosecutor challenged it. Nixon’s record there was not good.”

The more secure route, constitutionally, would have been a later pardon from his successor, but Nixon apparently left office without a promise from Ford himself. There is reason to believe that others close to Ford—former Secretary of Defense Melvin Laird and possibly Nixon’s former assistant for legislative and congressional affairs, Bryce Harlow—might have signaled in those final days that they would lobby Ford for a pardon. But it is unlikely that there was a formal deal with Ford. Nixon left the White House on August 9 a defeated man, later telling at least one visitor to his Spanish-style finca in San Clemente, his California exile, that he fully expected to go to jail.

Trump, like Nixon, is heading out the door at the end of a corrupt presidency. Like Nixon, Trump has secrets he would like to keep. Unlike Nixon, however, Trump was seeking reelection in the year he faced impeachment, and, after his acquittal in the Senate, it was electoral politics that served as a brake on his willingness to pardon those who knew too much. Trump’s pardons of George Papadopoulos and Alex van der Zwaan, in defiance of the Mueller investigation, as well as his earlier pardon of former National Security Adviser Michael Flynn in November, make clear that public opinion no longer exercises any kind of constraint on Trump.

How far will he go now? Thanks to Taft’s ruling in Ex Parte Grossman, the president could expect the Supreme Court to uphold pardons of his family and the other enablers of his various schemes, whether of defined crimes or abuses of power. But the events of August 1974 leave the question of the constitutionality of a self-pardon wide open. Some in Nixon’s immediate orbit believed it constitutional, even if his Justice Department disagreed. Taft’s expansive decision in 1925 was silent on the matter of a self-pardon.

Will Trump be the first to test the constitutionality of a self-pardon, just as he has tested the limits of so many other constraints on presidential power? Precedent has never mattered to him. He has reportedly been asking aides about the possibility of a self-pardon since 2017. Unlike Nixon, he can’t even hope for a pardon from his immediate successor. But neither can he count on the Supreme Court to uphold a self-pardon; in summarily dismissing Trump’s effort to overturn the election, the justices reminded him that a president should not count on the support of his appointees.

The Framers couldn’t imagine a Congress failing to impeach and remove a corrupt president. Chief Justice Taft couldn’t imagine a president abusing the pardon power, and he couldn’t imagine the circumstances under which a president would pardon himself. Mary Lawton couldn’t imagine that the Constitution would allow a president to be the judge in his own case.

But in the final days of the presidency of Donald Trump, very little seems unimaginable anymore.