(6 of 12)
Nonetheless, Nixon did gain a great deal in having the burden of prosecution lifted. As many Watergate defendants can testify, the astonishing costs of high-level legal defense are themselves a punishment. Sources close to Jaworski's office report that the conspiracy case against Nixon was virtually "ironclad" and conviction was almost a certainty. Being pronounced guilty by a jury would clearly have been an additional, if justifiable humiliation for Nixon. So Nixon does benefit greatly from Ford's generosity. But the absence of any admission of criminal guilt by Nixon and the granting to him of practical control over all his tapes and presidential papers leaves serious, unanswered questions about precisely how, if at all, the nation benefits.
Gradually, and chiefly through Buchen, there emerged some additional but still unsatisfactory explanations of the Ford decision. When Ford contended at his Aug. 28 press conference that it would be "unwise and untimely" for him to pardon Nixon before any charges had been brought against him, aides said that he was simply unaware he had the power to pardon before indictment, trial and conviction. Just two days later, on Aug. 30, he asked Buchen to study that question. Buchen quickly discovered, as any reader of informed legal speculation in newspaper accounts at the time had also learned, that Presidents had exerted such power in the past. According to this explanation, Ford had also been in formed that Jaworski was about to in dict Nixon for a whole series of crimes. Since there was doubt that the ex-President could get a fair trial, and since Ford had decided in any case to pardon Nixon at some point, there was no reason to wait. "Mercy is never untimely," said Buchen.
Single Indictment. The Ford aides said that they could not explain his insertion of a reference to Nixon's health in the pardon announcement. The advance text did not contain it. They were aware that Ford had been concerned about published reports of Nixon's moody emotional state, but they insisted that neither the physical nor mental health of the former President was the major influence on the timing of the pardon.
There were problems with these explanations. The presidential pardoning power, including Nixon's authority to pardon him self before leaving office, had been widely discussed, so it seemed unlikely that Ford was all that unaware of his authority. Jaworski, moreover, was not poised to throw the book at Nixon. He was prepared to seek a single indictment for conspiring to obstruct justice in the cover-up—but not until the conspiracy-trial jury had been selected and sequestered. To the contrary, Jaworski had submitted to the White House, at Buchen's request, a memo from his top deputy, Henry S. Ruth Jr., citing ten other areas of in vestigation of Nixon but stressing that "none of these matters at the moment rises to the level of our ability to prove even a probable criminal violation by Mr. Nixon." At no time did Ford or his aides ask Jaworski his view of a Nixon pardon.
As a full and persuasive explanation of the Ford decision remained elusive pending Ford's press conference this