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Nixon Pardon - Hungate Subcommittee Ken Lazarus Memo re Possible Questions
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Nixon Pardon - Hungate Subcommittee Ken Lazarus Memo re Possible Questions
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The original documents are located in Box 34, folder "Nixon Pardon Hungate
Subcommittee - Ken Lazarus Memo Re Possible Questions" of the Philip Buchen Files at
the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
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copyright claim, please contact the Gerald R. Ford Presidential Library.
Exact duplicates within this folder were not digitized.
Digitized from Box 34 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
October 14, 1974
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
kl
SUBJECT:
House Judiciary Subcommittee Hearing
On Pardon: Anticipated Questions For
The President.
Set forth below are a number of questions which I anticipate may be
raised at the hearing on Thursday and some rather cryptic notes
which may be of assistance to you in this regard. Hopefully, the
President will have the opportunity to consider these and all other
questions which may be anticipated prior to his appearance.
I. QUESTIONS OF LAW
A. Basis of the Pardon Power
1. What is the Constitutional basis of the President's pardoning
power?
Article II, section 2, cl. 1: 11
and he shall have Bower
to Grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment."
2. Who has the power to pardon and is the exercise of that
power exclusive?
a. Only the President may exercise the power to pardon.
(1) Ex Parte Wells, 59 U.S. (18 How.) 307 (1855): at
p. 309 "Under this power, the President has
granted reprieves and pardons since the commence-
ment of the present government
No statute
has ever been passed regulating it in cases of
conviction by the civil authorities. In such cases,
the President has acted exclusively under the power
as it is expressed in the constitution. "
- 2 -
(2) Ex Parte Garland, 4 Wall. 333, 380 (1867): "This
power of the President is not subject to legislative
control. The benign prerogative of mercy reposed
in him cannot be fettered by any legislative
restrictions. "
(3) Ex Parte Grossman, 267 U.S. 87, 120 (1924): "The
Executive can reprieve or pardon all offenses
conditionally or absolutely, and this without
modification or regulation by Congress. "
(4) The Laura, 114 U.S. 411, 414 (1885): The President's
"
constitutional power in these respects cannot
be interrupted, abridged, or limited by any legis-
lative enactment."
(5) See also, United States V. Klein, 13 Wall. 128 (1872)
and Knote V. United States, 95 U.S. 149 (1877), both
stating that the President has the power to grant a
full pardon.
(6) Thompson V. Duehay, 217 Fed. 484, 487 (W. D. Wash.
1914) affd. 223 Fed. 305 (9th Cir. 1915); Bozel V.
United States, 139 F. 2d 153 (6th Cir. 1943); United
States V. Kawkita, 108 F. Supp. 627 (S. D. Cal. 1952);
United States V. Jenkins, 141 F. Supp. 499 (S. D. Ga.
1956).
(7) 20 Op. A. G. 668 (1893), stating that "
the
pardoning power of the President is absolute, and is
not a subject of legislative control. "
41 Op. A. G. 251 (1955), stating "Nor do I believe that
the parole laws and regulations can be regarded as
a limitation upon the President's pardoning power
vested in him by the Constitution. The books are
replete with statements that Congress can neither
control nor regulate the action of the President in
this regard. " At p. 254.
b. May the President delegate his power to pardon to other
officials or agencies within the Executive Branch?
- 3 -
(1) In light of the above cases, it would appear that the
power to pardon is nondelegable. To support this
premise, 19 Op. A. G. 106 (1888) states that "This
grant of power to pardon offenses against the United
States to the President alone forbids the exercise of it
by any one else
But it is to be presumed Congress
passed law (permitting an officer to pardon after general
court-martial) in subservience to and not in violation of
the Constitution. " Since the ability to remit punishment
was limited solely to punishment and not to the offense
itself, which is the essential object of a pardon, the
President's pardoning power was not impinged. The
Opinion went on to state, however, "But when the law
has finally pronounced its judgment /and an offense has
been established/, it /Congress/ could not and did not
intend to grant the power to pardon the offense against
the United States. " At p. 108 "If the power of the officer
to pardon existed at any time after the final judgment, and
could be exercised after the offender had paid a large
part of the penalty of the law, he might be again
prosecuted, convicted, and twice punished for the same
offense. " At P. 109.
(2) But see dictum in Solesbee V. Balkcom, 339 U.S. 9
{1950) which states that the "power of executive clemency
has traditionally rested in governors or the President,
although some of that power is often delegated to agencies
such as pardon or parole boards. Seldom has this power
of executive clemency been subjected to review by the
courts. "
(3) I believe that 41 Op. A. G. 251 (1955) disposes of the
issue that the parole statutes in any measure detract
from the President's pardoning power. Viewing the
dictum stated above as relating solely to the act of
parole, it is clear that judicial review of the decision
to parole has been denied the courts.
C. Does the Congress have any power to pardon?
(1) From a reading of the Debates of the Constitutional
Convention, it appears that the Framers of the Consti-
tution specifically omitted the Congress from participation
in the exercise of the President's pardoning power. By
a vote of 1 to 8 the following clause including the Senate
- 4 -
in the participation of the Executive's pardoning power
was omitted: "
power to grant reprieves
and pardons with consent of the Senate. 11 (emphasis
supplied) 2 M. Farrand, Records of the Federal
Convention of 1787, 419 (1937).
In one of the debates, Rufus King of Massachusetts made
the following observation: "It would be inconsistent with
the constitutional separation
of powers to let the
prerogative Lof pardon/ to be exercised by the legis-
lature -- a legislative body is utterly unfit for the purpose.
They are governed too much by the passions of the
moment. 11 2 M. Farrand, supra, at p. 626.
(2) The power to pardon has been committed exclusively by
the Constitution to the President of the United States.
See Ex Parte Wells, supra; Ex Parte Garland, supra;
Ex Parte Grossman, supra.
(3) In 22 Op. A. G. 36 (1898), it is stated that:
"The power thus conferred is unlimited with the ex-
ception stated (except in cases of impeachment). It
extends to every offense known to the law, either before
legal proceedings are taken, or during their pendency,
or after conviction and judgment. This power of the
President is not subject to legislative control. Congress
can neither limit the effect of his pardon nor exclude from
its exercise any class of offenders. The benign pre-
rogative of mercy reposed in him cannot be fettered by
any legislative restrictions. 11
(4) Cases of general grants of amnesty or immunity from
prosecution can be distinguished from the exercise of the
pardoning power reposed exclusively in the President.
In Brown V. Walker, 161 U.S. 591 (1896), the Court held
that a statute granting witnesses testifying before the
Interstate Commerce Commission immunity from prose-
cution was virtually a grant of amnesty and therefore
a witness could not be excused from testifying on the
ground that he might incriminate himself. The granting
of immunity to witnesses before prosecution on a quid
pro quo basis seems readily distinguishable from the
grace concept intrinsic in amnesty. Immunity statutes
- 5 -
have the limited and special purpose of obviating the
constitutional privilege against self-imcrimination.
Brown should not be read as support for the proposition
that Congress can pass a general amnesty statute which
in effect is an exercise of the pardoning power. See
distinction discussed in Burdick V. United States, 236
U.S. 79, 94-95 (1915).
In The Laura, 114 U.S. 411 (1885), the Supreme Court
upheld the remission of a fine by the Secretary of the
Treasury acting pursuant to Congressional authorization.
the Court observed that the President's power to pardon
offenses and remit penalties is not exclusive, the case
indicates that the statutory authority accorded the
Secretary of the Treasury was placed wholly within his
discretion and that a remission could not have occurred
without his concurrence. Under such circumstances, the
degree of Congressional encroachment on the Executive's
power to pardon was minimal, given the predominant
role accorded Executive discretion by the statute.
d. Does the judicial branch have the power to pardon?
(1) This issue has been addressed by the Supreme Court in
Ex Parte United States, 242 U.S. 27 (1916). In this case,
the Court held that courts possess the right to impose
punishment provided by law. But this right affords no
ground for the contention that 11
the power to enforce
begets inherently a discretion to permanently refuse to
do SO. Authority to define and fix punishment is legis-
lative and includes the right to bring within judicial
discretion in advance elements of consideration which
would be otherwise beyond the scope of judicial
authority; but that the right to relieve from the punishment,
fixed by law, belongs to the executive department. "
3. Must the recipient of an offer of pardon accept it?
a. Yes, without acceptance, an offer of pardon lapses.
(1) United States V. Wilson, 32 U.S. (7 Pet. ) 150 (1833)
which states that a pardon is a "deed" to the validity of
which delivery is essential and is not complete without
acceptance.
- 6 -
(2) Burdick V. United States, 236 U.S. 79 (1915), holding
that acceptance is essential to a pardon's validity.
(3) Biddle V. Perovich, 274 U.S. 480, 486 (1927), dis-
tinguishes a commutation which needs no acceptance
from a pardon which does.
(4) 11 Op. A. G. 227 (1865) at p. 230 states that "After the
pardon has been accepted, it becomes a valid act, and
the person receiving it is entitled to all its benefits. 11
See also 41 Op. A. G. 251, 254-258 (1955).
(5) In re DePuy, 7 Fed. Cas. 507 (Cas. No. 3814, 1869);
Ex Parte Perovich, 9 F. 2d 124 (D. Kan. 1925).
4. Does acceptance of a pardon imply an admission of guilt?
a. Yes.
b. 6 Op. A. G. 20 (1853) states that a pardon before trial and
conviction is proper " ... because the act of clemency and
grace is applied to the crime itself, not to the mere formal
proof of the crime by process of law. But there must be
satisfactory evidence of some kind as to the guilt of the party.
And it has been held unwise and inexpedient, as a general
rule, to interpose the pardoning power in anticipation of trial
and condemnation, although particular circumstances may
exist to justify such an exceptional act on the part of the
President. Mr. Wirt's opinion, March 30, 1820; Mr. Berrien's
opinion, October 12, 1829; Mr. Taney's opinion, December 28,
1831. 11 6 Op. A. G. at 21.
11 Op. A. G. 227, 228 (1865) states that "There can be no
pardon where there is no actual or imputed guilt. The
acceptance of a pardon is a confession of guilt, or of the
existence of a state of facts from which a judgment of guilt
would follow. "
Burdick V. United States, 236 U.S. 70 (1915) states that a
pardon carries an imputation of guilt; acceptance a confession
of it. But legislative immunity has no such imputation or
confession, being the unobtrusive act of the law given protection
against a sinister use of the witnesses' compelled testimony.
5. May a pardon be void ab initio?
a. Yes.
- 7 -
b.
11 Op. A. G. 227 at 229 (1865) states that "A pardon procured
by fraud or for a fraudulent purpose, upon the suppression
of the truth or the suggestion of falsehood, is void. It is a
deed of mercy given without other fee or reward than the
good faith, truth and repentance of the culprit. On the other
hand, as an act of grace freely given, when obtained without
falsehood, fraud, and for no fraudulent use, it should be
liberally construed in favor of the repentent offender. "
6. May the President grant a pardon without first investigating the
facts upon which the pardon operates to relieve an individual
from punishment?
a. Yes.
b. 1 Op. A. G. 359 (1820) stating with respect to the suggestion
that the President must either grant a new trial because of
the petitioners' submission of new facts upon which to base
the pardon or to accept without question the explanation of
the petitioners that "I do not think that the power of pardon
either requires or authorizes him to do the one or the other
of these things; but that, on the contrary, to do either would
be an abuse of that power. 11 Distinguish that right to do
something from the judgment whether something which one
has the right to do should be done in a particular manner.
B. Form of the Pardon
1. Must a pardon have a particular form or designation?
a. Yes.
b. Ex Parte Wells, 59 U.S. (18 How. ) 307, 310 (1855)
"Such a thing as a pardon without a designation of its
kind is not known in the law. Time out of mind, in the
earliest books of the English law, every pardon has its
particular denomination. They are general, special, or
particular, conditional or absolute, statutory, not
necessary in some cases, and in some grantable of course. 11
c. It appears that there is a difference between a full and un-
conditional pardon for an offense which has been specified
in the preamble of the pardon statement, and a "general"
FORD
pardon.
- 8 -
See Stetler's Case, 22 Fed. Cas. (Cas. No. 13, 380,
1852) where the Court distinguished between a full and
unconditional pardon, which was there involved, and a
general pardon. The Court held that the pardon which was
full and unconditional was valid for the offense recited in
the preamble but that this was not a general pardon for
other crimes.
8 Op. A. G. 281 (1857) also made specific reference to the
fact that the form of the pardon was significant. As an
example, the Opinion stated "a 'general' pardon restores
the competency of a party as a witness but that effect may
not follow a special remission merely of the residue of a
sentence i.e., commutation. 11
d. President Ford referred to Mr. Nixon's pardon as "full,
free and absolute" and covering the period of his term in
office.
2. Must the form of the pardon include a statement which indicates
the intent of the President with respect to the offenses encompassed
by the pardon?
a. Stetler's Case, supra, states that the "effect of the preamble
/of the pardon statement/ reciting a single offense limits
the general words of the grant of pardon."
b. Where the scope of the pardon is ambiguous, 11 Op. A. G.
227 at 229 (1865) suggests that since the pardon is essentially
an act of grace, "when obtained without falsehood, fraud,
and for no fraudulent use, it should be liberally construed
in favor of the repentent offender. 11
3. If there is any ambiguity regarding the President's intent in
specifying the offenses which are the subject of the pardon, may
he be required to specify his intent?
a. No.
b.
So long as the offenses covered or which may be covered are
in some manner treated by the terms of the pardon, i.e.,
"during the period from January 20, 1969 through August 9,
FORD
1974."
LIBRARY
c.
Somewhat bearing on this consideration is the comment in
11 Op. A. G. 227, 232-233 (1865) which suggests that it
would be proper for the judiciary to determine in each
- 9 -
particular case the adequacy of the repicients' acceptance
of the terms of a pardon. Apparently, ambiguity with
respect to acceptance is a subject of judicial determination,
permitting a court to review the expression of intent in a
pardon as the way of gauging the adequacy of the acceptance.
C. Timing of the Pardon
1. May a pardon precede indictment and conviction?
a. Yes.
b. During the debates of the Constitutional Convention, a motion
was made to insert the words "after conviction" after the
words "reprieves and pardons". Mr. James Wilson of
Pennsylvania objected to this proposal on the grounds that
"pardon before conviction might be necessary in order to
obtain the testimony of accomplices. 11 The motion was then
withdrawn. 2 M. Farrand, supra, at 422, 426.
C.
6 Op. A. G. 20, 21 (1853) permits the offer of a pardon before
trial and conviction "
because the act of clemency and
grace is applied to the crime itself, not to the mere formal
proof of the crime by process of law. "
d. Ex Parte Garland, 71 U.S. (4 Wall. ) 333 (1866) states that
the pardoning power may be exercised at any time after its
commission, either before legal proceedings are taken, or
during their pendency, or after conviction and judgment.
e. 8 Op. A. G. 281 (1857) states "He may pardon before trial
and conviction. He may pardon at any time either anterior
to prosecution or pending the same or subsequent to the
executions -- subject in the latter case only to the limits of
legal, moral, or physical possibilities.
f.
Stetler's Case, supra, states that "the President has consti-
tutional authority to pardon an offense so long as any of its
consequences remain. 11
2. May a pardon include offenses which have neither been discovered,
nor listed in the pardon statement at the time of its issuance?
a. Yes.
- 10 -
b.
If the pardon statement designates that the pardon will be
general or if by its terms the pardon states that it includes
"all" offenses which have been committed by the recipient,
knowledge of the precise types of crimes involved is irrele-
vant. A pardon is essentially directed to the nullification
of the legal consequences flowing from an offense. Such an
effect is not dependent on knowledge or enumeration of the
offenses involved. 22 Op. A. G. 36 (1898) Since the Congress
cannot limit the President's power to pardon, "the inquiry
arises as to the effect and operation of a pardon, and on this
point all the authorities concur. A pardon reaches both
punishment prescribed for the offense and the guilt of the
offender; and when the pardon is full it releases punishment
and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed
the offense. 11
D. Challenge and Review of a Pardon
1. Who has standing to challenge the pardon?
a. The President
Matter of DePuy, 7 Fed. Case. No. 3814 (1869) states that
the President has the right to arrest a pardon, but only
before it has been delivered and accepted by the grantee.
b. Leon Jaworski, Special Prosecutor, has standing to challenge
the pardon. Ordinarily, of course, a prosecutor is subject
to the President's control, so the basis of his challenge would
not be that the incumbent President acted improperly. But
here, the understanding between the Department of Justice,
the President and the Special Prosecutor contained in Order
No. 551-73 (Nov. 2, 1973), 38 Fed. Reg. 30738, provided
"that the President will not exercise his constitutional powers
to effect the discharge of the Special Prosecutor or to limit
the independence that he is hereby given. 11 The President
further agreed not to remove him from his duties except for
extraordinary improprieties on his part and without the
President's first consulting the maj ority and the minority
leaders and chairmen and ranking minority members of the
Judiciary Committees of the Senate and House of Representa-
tives and asc ertaining that their consensus is in accord with
his proposed action. 11
- 11 -
Note the decision in Nader V. Bork,
F. Supp.
(D. D. C. 1973) 42 L. W. 2262, which apparently does not
address the standing question, but did hold that Acting
Attorney General Bork's firing of Special Prosecutor
Cox was illegal.
From newspaper reports of September 9, 1974,
Mr. Jaworski had decided not to challenge the pardon.
New York Times, p. 1 col. 4 states that "The special
prosecutor 'accepts the decision'
'He thinks it's
within the President's power to do it. His feelings is that
the President is exercising his lawful power, and he
accepts it. 111
The challenge would have to be based on the grounds dis-
cussed above -- notably, fraud in the inducement. There is
no Federal case law which will indicate that obtaining it by
inducement contrary to public policy (e. g., a "deal" for
Nixon's resignation) would constitute invalidating fraud.
Obviously, however, care should be taken to eliminate any
such speculation. It is difficult to argue that the pardon
violates the agreement with Jaworski. It does not "effect
/his/ discharge" or "limit his independence" or "remove
him from his duties. " But obviously, questions can be
expected on this point.
2. May the President revoke a pardon once it has been accepted?
a. No.
b. In re DePuy, 7 Fed. Cas. 507 (Cas. No. 3814, 1869). In
reviewing a pardon by the President, the Court stated that
"when a pardon is complete there is no power to revoke it,
any more than there is power to revoke any other completed
act. 11 Once a pardon has been accepted, it becomes a
completed act and cannot be revoked.
C. This situation should be distinguished from the case where
the pardon is conditional and the recipient fails to fulfill the
terms of the condition. See Lupo V. Zerbst, 92 F. 2d
362 (5th Cir. 1937).
FORD
- 12 -
3. Can Congress challenge a pardon?
a. No.
b. United States V. Klein, 13 Wall. 128, 143, 148 (1872):
"Now it is clear that the legislature cannot change the
effect of such a pardon any more than the executive can change
a law. 11
4. See discussion of fraud as a basis for challenging a pardon,
supra at (A)(5) of the outline discussing 11 Op. A. G. 227 (1865).
5. May courts review a grant of a pardon?
a. Yes.
b. Judicial review may not extend to the propriety of the
President's exercise of the pardoning power. However, the
courts have reviewed such issues as whether the offense
pardoned falls within the category of an offense against the
United States (Ex Parte Grossman, supra); whether the
conditions imposed are valid (i. , Hoffa V. United States
(most recent example); Ex Parte Wells, supra; United
States V. Klein, supra); whether the grantor of the pardon
has the authority to issue the pardon (The Laura, supra;
22 Op. A. G. 36, supra; 19 Op. A. G. 106, supra); whether
the terms of the pardon are ambiguous; and whether at the
time of the issuance of the pardon the President was consti-
tutionally able to exercise the pardoning power by reason
of the Twenty-fifth Amendment.
6. Can a recipient of an invalid pardon claim estoppel if he is
prosecuted for an offense covered by a pardon allegedly granted
to him?
a. Yes, However, there is no case law on this point.
b. It is reasonable that if in reliance on the grant of a pardon
(where the pardon might be phrased in ambiguous terms),
the recipient "waives" his Fifth Amendment protection
against self-incrimination by making incriminating statements,
subsequent prosecution would be estopped. The recipient
because of his reliance on the pardon in making those state-
1090
ments would effectively be prevented from obtaining a fair
trial by an impartial jury, guaranteed him by the Sixth
Amendment.
- 13 -
E. Extent of the Pardoning Power
1. Can the pardoning power affect either state criminal jurisdiction
or civil liability to third parties?
a. No.
b. (Angle V. Chicago, St. P. M. &O. R. Co., 151 U.S. 1 (1893);
Osborn V. United States, 91 U.S. 474 (1875). As to third
parties (see also 5 Op. A. G. 532 (1852)), stating "this
power of granting pardons does not confer an unlimited
power
The power of granting pardons does not extend
to the release of the portion of fines, penalties, and for-
feitures which, by United States law, are directed to be dis-
tributed by the individual. Such would deprive individuals
of their interests
and they would suffer loss. "
C. Ex Parte Grossman, supra, at page 121 which states "neither
in this country nor in England can /a pardon/ interfere with
the use of coercive measures to enforce a suitor's rights. "
d. Look to the express terms of Article II, Section 2, cl. 1
which limits the power to offenses against the United States.
2. What are offenses against the United States?
a. Ex Parte Grossman, supra
(1) A pardon of the president is meant to operate on offenses
against the United States as distinguished from offenses
against the States.
(2) Offenses against the United States include, but are not
limited to, crimes and misdemeanors defined and
announced by Congressional acts.
(3) The words of the pardon clause were not meant to exclude
therefrom common law offenses in "the nature of con-
tempts against the dignity and authority of United States
courts. 11 Criminal, but not civil, contempts are subject
to pardon.
FORD
(4) The term offenses is used in the Constitution in a more
comprehensive sense than are the terms "crimes" and
"criminal prosecution".
- 14 -
b. A state felony (i. assault and violation of traffic
regulations) is not an offense against the United States.
In re Bocchiaro, 49 F. Supp. 37 (W.D.N.Y. 1943)
C. The pardon power is sufficient to remit a fine imposed on
a citizen for contempt for neglecting to serve as a juror.
4 Op. A. G. 317 (1844)
d. The pardon power extends to all penalties and forfeitures,
as well as other punishments. 8 Op. A. G. 281 (1857)
e. Proceedings instituted by the United States for punishment
of criminal contempt committed by a violation of an in-
junction is an offense against the United States. United
States V. Goldman, 277 U.S. 229 (1928).
F. Equal Protection Argument
1. Can others who allegedly have committed the same offenses as
co-conspirators or accomplices sustain a claim that they have
been denied equal protection when one of their number has been
pardoned?
a. No. The act of pardoning is essentially an act of executive
grace, specifically directed usually at one particular person.
Moreover, there is no equal protection argument possible
where there is a rational basis upon which a distinction can
be made.
Even if equal protection considerations were raised, it is
arguable that considerations, other than those strictly legal,
may validly distinguish one co-conspirator from another,
i.e., health, position, effect of a trial on the national con-
science and morale, as well as the extent of the recipient's
participation.
Since this power is ultimately designed to function as a
stress point in our Constitutional fabric to which no citizen
has a right, failure to accord the grace to all involved in a
particular offense does not violate equal protection.
2. May the pardon of Mr. Nixon be considered in the sentencing by
judges presiding over trials involving Watergate-related offenses
?
- 15 -
a. Yes. The sentencing power of the judge is wholly dis-
cretionary and subject to very little review so long as the
terms of the sentences are within the statutory limits.
G. Prospective Application of the Pardoning Power.
1. Can a Presidential pardon be prospective in application to
offenses against the United States committed after the offer
of the pardon?
a. No. 22 Op. A. G. 36, 39 (1898).
H. Effect of Pardon.
1. Can President Nixon refuse to testify in future Watergate trials
by claiming his Fifth Amendment right against self-incrimination?
a. No. He has been granted immunity from federal criminal
prosecution. He may refuse to testify on matters which
would involve State criminal liability since he has not been
given immunity with respect to State liability. Jaworski
could give him such immunity.
2. If Nixon testifies at Watergate trials and is shown to have lied
under oath and if he is then charged with perjury can he raise
President Ford's pardon as a bar to liability for perjury? No.
A pardon is limited in this case to crimes completed as of the
date of Mr. Nixon's resignation, August 9, 1974.
3. Does Nixon face the possibility of criminal tax liability for
tax fraud in California? Yes.
4. Would Nixon be subject to civil suits? Yes.
I. Executive Privilege: Congressional Demands.
1. How does Executive Privilege operate in response to
Congressional demands?
Congressional demands for material may be grouped into
four categories:
FORD LIBRARY
- 16 -
a.
Some Presidents have acknowledged that a demand for
material pursuant to an impeachment inquiry would re-
quire production for any and all executive material. See
Washington's statement, 5 Annals of Congress 710-12 (1796).
b.
Particularized Congressional demands for materials pursuant
to a legislative mission may be rejected on the basis of
Executive Privilege where it is deemed by the President
that the production of such material would be detrimental
to the functioning of the Executive Branch.
C. Particularized Congressional demands for sensitive materials
have at times been met with certain restrictions on access,
e. g., examination by only the Chairman and ranking
Republicans on a committee.
d. Non-particularized claims for general access with no
compelling indication of need are routinely rejected.
2. Does a former President have the authority to invoke Executive
Privilege for materials or conversations arising during his
Presidency?
Yes. The rationale behind the privilege and the interest it serves
compels an affirmative response. The invocation of Executive
Privilege is not so much to protect the content of the particular
discussions demanded as it is to protect the expectation of con-
fidentiality which enables future discussions to be free and frank.
Principle recognized as early as 1846. Richardson, Messages
and Papers of the Presidents, Vol. IV, 433-34.
Former President Truman in 1953, having returned to public
life, asserted privilege in response to House committee subpoena
concerning matters which transpired while he was in office. The
House committee accepted the letter and did not attempt to
enforce the subpoena.
3. Does the Congress itself protect a sphere of confidentiality in its
internal deliberations?
Yes. At least four precedents can be given in this regard.
a.
In 1962, certain staff members of the Senate Rackets Committee
were allowed to testify in a criminal proceeding against
Jimmy Hoffa but they were forbidden from making available
- 17 -
any documents in the hands of the Senate and from testifying
about information that they gained while employed in the
Senate. 108 Cong. Rec. 3626 (1962). In explaining the
resolution to the Senate, Senator McClellan said in part:
"The Senate recognizes it has certain privileges as a
separate and distinct branch of government which it wishes
to protect." Id. at 3627.
b. In 1970, the House Committee on Armed Services refused
to comply with a request from counsel for Lieutenant
William Calley for the production of testimony given to the
committee by Calley in closed session. The chairman of the
committee, Rep. Hebert, indicated that "
only Congress
can direct the disclosure of legislative records. " See 116
Cong. Rec. 37652 (1970).
c. In 1972, the United States Senate by resolution refused a
judicial subpoena for documentary evidence in the criminal
case of United States V. Brewster, then pending in the D. C.
District Court. 118 Cong. Rec. 766 (1972).
d. In 1974, the Senate passed a resolution allowing a Senate
staff member to testify in a criminal proceeding but limited
the scope of the testimony by providing that 11
he shall
respectfully decline to provide information concerning any
and all other matters that may be based on knowledge
acquired by him in his official capacity
" S. Res. 338,
passed June 12, 1974.
II. QUESTIONS OF FACT
A. Introductory Notes: This hearing presents a real opportunity for
the President. At the same time, however the open-ended nature
of the factual inquiry must be limited to ensure a responsible
search for the truth regarding the pardon. Although the President
need not assume a defensive posture, potential for political mischief
must be minimized.
1. Ground Rules. The ground rules which have been agreed upon with
the subcommittee may be summarized as follows:
FORD is 071838 LIBRARY
- 18 -
a. Opening Statement. No time limitations but statement
should be responsive to each of the formal inquiries
raised by H. Res. 1367 and H. Res. 1370.
b. Scope of Inquiry. The understanding has been reached
that the inquiry shall be limited by the scope of the two
formal resolutions of inquiry.
C. Time Limitations. Each of the nine members sitting with
the subcommittee shall have the opportunity to question
the President for two periods of five minutes each. Thus,
there will be a total of 90 minutes of questioning.
d. Television. Consent has been given to live television
coverage of the hearing.
2. Thoughts on ground rules. In my opinion, further consideration
should be given to the ground rules in the following respects:
a. Time Limits. If possible, the agreement reached on the
period for questioning should be reopened and substantially
reduced. Perhaps, a total of 1/2 hour to be controlled by and
divided between the chairman and ranking Republican.
Alternatively, only 5 minutes per member might be allowed
for a total of 45 minutes. Ninety minutes is simply too long.
b. Order of questioning. The order of questioning should
alternate from Democrat to Republican and form senior to
junior. The Democrats should not be allowed to exhaust
their time prior to the allotment of time to the Republicans.
c. Nixon-GSA Agreement. It should be clearly understood
that the tapes agreement is beyond the scope of this inquiry,
except to the extent that it might impact upon the grant of
the pardon.
d. Prior Executive's Discussions and Materials which are
presumptively privileged. It should be understood that
President Ford will not infringe upon any claim of Executive
Privilege which former President Nixon may want to assert
with regard to materials or conversations arising prior to
- 19 -
August 9th. This position can be substantially strengthened
by a letter to Jack Miller, counsel to the former President,
inquiring as to whether he intends to assert a privilege on
behalf of the former President. Assuming Miller will not
consent to any waiver, documentation of this position will
then be available.
e.
Presumptively Privileged Discussions and Materials
Arising after August 9th. Two ground rules should be
established in this regard:
(1) President Ford will not make available members of
the White House staff for further examination on the
subject of the pardon; and
(2) Formal requests or demands for documents of the
Ford Presidency will not be complied with unless of
a public nature -- this is not to say, however, that
such materials may not be made available pursuant
to informal requests by the committee The point in
this latter regard is that release in this context is
a Presidential prerogative.
f.
Role of the Chairman. Chairman Hungate should assume
the following responsibilities:
(1) Channel all appropriate informal requests for materials
to the White House;
(2) Strictly enforce time limitations and ground rules on
relevancy and privilege; and
(3) Rule clearly repetitious questions out of order.
3. Need For Certainty. If equitable ground rules for this hearing
cannot be firmly established prior to Wednesday, the President
might give thought to postponing his appearance until an agreement
reflecting a good faith effort on both sides can be reached.
- 20 -
B. Individuals Involved In Grant of Pardon.
1.
Who were the individuals representing Mr. Nixon during the
course of any pardon discussions or negotiations?
a. What was the scope of authority of Mr. Miller, counsel
of record so to speak, in the pardon discussions?
b. Was Fred Buzhardt involved in any way?
C.
Was Alexander Haig involved in any way?
d.
When did Messrs. Buzhardt and Haig leave the White
House payroll?
e. Was any representative of H. R. Haldeman privy to the
discussions?
f. Did Mr. St. Clair represent Mr. Nixon in any way relative
to the pardon?
2. Who were the individuals representing your interests during
the course of any pardon discussions or negotiations?
a.
Did anyone other than Messrs. Marsh, Hartmann, Buchen
and Becker, represent you in any way during these
discussions?
b.
How did you happen to enlist the assistance of Mr. Becker?
C.
Were you aware of the fact that Mr. Becker is currently
under investigation for income tax evasion by the
Department of Justice?
d.
Was Mr. Becker paid for his efforts?
e.
Does Mr. Becker currently provide you any assistance,
legal or otherwise?
f. With the nation's finest and most highly respected lawyers
and the Department of Justice presumably available to assist
you in this regard, why were they not utilized?
FORD & LIDRARY
- 21 -
in
Do you have any personal logs or minutes of your
meetings with individuals representing your interests
in this regard?
h.
May the subcommittee review these materials?
i. Would you object to our receiving testimenty from those
who assisted you on the pardon?
C. Considerations In Granting Pardon.
1. Did you have any hard evidence of the frailty of Mr. Nixon's
physical or mental health?
2. With the benefit of hindsight, what is your view of the pardon
today in terms of healing the nation's wounds?
3.
What factors under consideration by you with respect to the
pardon of Mr. Nixon would not impact equally on other
Watergate defendants?
4. Since in ordinary legal proceedings the leading member of a
criminal group is most actively prosecuted, what prompted
you to turn this notion on its head?
5. Prior to granting the pardon, did you consider the impact it
could have on the independence of the Special Prosecutor and
any pending criminal matters?
6. Did you consider discussing these matters with the Congressional
group referred to in Mr. Jaworski's charter?
7. Do you consider Mr. Nixon's statement upon acceptance of the
pardon to constitute an appropriate "statement of contrition"?
8. Did you make any notes or review any staff recommendations
as you formulated your views on the necessity for a pardon?
9. May the subcommittee review these materials?
sono
- 22 -
D. Timing and Secrecy of Pardon.
1. In terms of setting "Watergate" to rest, might it not have
been preferable to take your case to the people prior to
the grant of the pardon?
2.
Didn't your precipitous action reduce the possibility of ever
achieving a complete record of "Watergate" which presumably
is in the public interest?
3. Why wasn't a complete record of the former President's
involvement in the cover-up made public prior to the grant of
the pardon as was done prior to the acceptance of a guilty
plea on behalf of former Vice President Agnew?
4.
You have indicated that your Administration would be one of
"openness" how does the handling of the pardon square with
that notion?
5.
Did you feel any pressure to grant the pardon from any former
Nixon aides?
6.
Did you feel any pressure from any Congressional sources to
grant the pardon?
7. In terms of public reaction, did you consider that your actions
could be interpreted as a quid pro quo for assuming the Presidency?
E. Relationship of Pardon to Tapes Agreement.
1. Do you have any reason to believe that any conversations which
you may have had with the former President during your service
in the House or as Vice President were secretly tape recorded?
2. Did you meet frequently with him in the Oval Office, the EOB
or the Cabinet Room where secret recording devices were
installed?
3. Were many of these conversations of a confidential nature?
4.
Did many of these conversations involve only yourself and
is
the former President?
- 23 -
5.
Were any White House aides, other than H. R. Haldeman
or John Ehrlichman frequently in attendance at these meetings?
6. After the existence of the tape recording devices became known,
did you ever discuss with anyone their possible content as it
might reflect on you?
7. Has anyone ever expressed to you their fears regarding the
content of the tapes as they might affect you or others close
to you?
8. Is anyone other than the former President and Mr. Haldeman
aware of the content of the tapes as they may reflect on you?
9. Did Mr. Haldeman, to your knowledge, ever attempt to exercise
any leverage over the former President or yourself with respect
to the tapes in order to secure a pardon?
10. Can you confirm or deny published reports to the effect that,
during the course of hearings on your nomination to be Vice
President, Mr. Buzhardt reviewed tapes covering certain
days when you had met with the former President?
11. Did any of your representatives participate in the development
of the Nixon-GSA tapes agreement with representatives of GSA
or Mr. Nixon?
12. Did you give these individuals any directives?
13. Paragraph 10 of the tapes agreement provides you with access to
the tapes -- how did this provision find its way into the agreement?
14. The same paragraph provides Mr. Nixon with access -- however,
no one else can access these materials. Does this strike you
as salutary?
15. What arrangements are being made to ensure the security
of the tapes?
#
FUND
GERALD
THE WHITE HOUSE
WASHINGTON
October 14, 1974
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
&
SUBJECT:
House Judiciary Subcommittee Hearing
On Pardon: Anticipated Questions For
The President.
Set forth below are a number of questions which I anticipate may be
raised at the hearing on Thursday and some rather cryptic notes
which may be of assistance to you in this regard. Hopefully, the
President will have the opportunity to consider these and all other
questions which may be anticipated prior to his appearance.
I. QUESTIONS OF LAW
A. Basis of the Pardon Power
1. What is the Constitutional basis of the President's pardoning
power?
Article II, section 2, cl. 1: 11 and he shall have Power
to Grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment."
2. Who has the power to pardon and is the exercise of that
power exclusive?
a. Only the President may exercise the power to pardon.
(1) Ex Parte Wells, 59 U.S. (18 How.) 307 (1855): at
p. 309 "Under this power, the President has
granted reprieves and pardons since the commence-
ment of the present government
No statute
has ever been passed regulating it in cases of
the President has acted exclusively under the powerd
conviction by the civil authorities.
GERALD FORD
as it is expressed in the constitution."
FORD LIBRARY 7PV30
- 2 -
(2) Ex Parte Garland, 4 Wall. 333, 380 (1867): "This
power of the President is not subject to legislative
control. The benign prerogative of mercy reposed
in him cannot be fettered by any legislative
restrictions. "
(3) Ex Parte Grossman, 267 U.S. 87, 120 (1924): "The
Executive can reprieve or pardon all offenses ...
conditionally or absolutely, and this without
modification or regulation by Congress."
(4) The Laura, 114 U.S. 411, 414 (1885): The President's
"
constitutional power in these respects cannot
be interrupted, abridged, or limited by any legis-
lative enactment."
(5) See also, United States V. Klein, 13 Wall. 128 (1872)
and Knote V. United States, 95 U.S. 149 (1877), both
stating that the President has the power to grant a
full pardon.
(6) Thompson V. Duehay, 217 Fed. 484, 487 (W. D. Wash.
1914) affd. 223 Fed. 305 (9th Cir. 1915); Bozel V.
United States, 139 F. 2d 153 (6th Cir. 1943); United
States V. Kawkita, 108 F. Supp. 627 (S. D. Cal. 1952);
United States V. Jenkins, 141 F. Supp. 499 (S. D. Ga.
1956).
(7) 20 Op. A. G. 668 (1893), stating that " the
pardoning power of the President is absolute, and is
not a subject of legislative control.'
41 Op. A.G. 251 (1955), stating "Nor do I believe that
the parole laws and regulations can be regarded as
a limitation upon the President's pardoning power
vested in him by the Constitution. The books are
replete with statements that Congress can neither
control nor regulate the action of the President in
this regard. 11 At p. 254.
b. May the President delegate his power to pardon to other
officials or agencies within the Executive Branch?
- 3 -
(1) In light of the above cases, it would appear that the
power to pardon is nondelegable. To support this
premise, 19 Op. A. G. 106 (1888) states that "This
grant of power to pardon offenses against the United
States to the President alone forbids the exercise of it
by any one else
But it is to be presumed Congress
passed law (permitting an officer to pardon after general
court-martial) in subservience to and not in violation of
the Constitution. 11 Since the ability to remit punishment
was limited solely to punishment and not to the offense
itself, which is the essential object of a pardon, the
President's pardoning power was not impinged. The
Opinion went on to state, however, "But when the law
has finally pronounced its judgment /and an offense has
been established/, it /Congress could not and did not
intend to grant the power to pardon the offense against
the United States. 11 At p. 108 "If the power of the officer
to pardon existed at any time after the final judgment, and
could be exercised after the offender had paid a large
part of the penalty of the law, he might be again
prosecuted, convicted, and twice punished for the same
offense. II At p. 109.
(2) But see dictum in Solesbee V. Balkcom, 339 U.S. 9
(1950) which states that the "power of executive clemency
has traditionally rested in governors or the President,
although some of that power is often delegated to agencies
such as pardon or parole boards. Seldom has this power
of executive clemency been subjected to review by the
courts. "
(3) I believe that 41 Op. A. G. 251 (1955) disposes of the
issue that the parole statutes in any measure detract
from the President's pardoning power. Viewing the
dictum stated above as relating solely to the act of
parole, it is clear that judicial review of the decision
to parole has been denied the courts.
C. Does the Congress have any power to pardon?
(1) From a reading of the Debates of the Constitutional
Convention, it appears that the Framers of the Consti-
FOKD
tution specifically omitted the Congress from participation
GERALD
LIBRARY
in the exercise of the President's pardoning power. By
a vote of 1 to 8 the following clause including the Senate
- 4 -
in the participation of the Executive's pardoning power
was omitted: "
power to grant reprieves
and pardons with consent of the Senate. = (emphasis
supplied) 2 M. Farrand, Records of the Federal
Convention of 1787, 419 (1937).
In one of the debates, Rufus King of Massachusetts made
the following observation: "It would be inconsistent with
the constitutional separation
of powers to let the
prerogative Lof pardon/ to be exercised by the legis-
lature -- a legislative body is utterly unfit for the purpose.
They are governed too much by the passions of the
moment. 11 2 M. Farrand, supra, at p. 626.
(2) The power to pardon has been committed exclusively by
the Constitution to the President of the United States.
See Ex Parte Wells, supra; Ex Parte Garland, supra;
Ex Parte Grossman, supra.
(3) In 22 Op. A. G. 36 (1898), it is stated that:
"The power thus conferred is unlimited with the ex-
ception stated (except in cases of impeachment). It
extends to every offense known to the law, either before
legal proceedings are taken, or during their pendency,
or after conviction and judgment. This power of the
President is not subject to legislative control. Congress
can neither limit the effect of his pardon nor exclude from
its exercise any class of offenders. The benign pre-
rogative of mercy reposed in him cannot be fettered by
any legislative restrictions. 11
(4) Cases of general grants of amnesty, or immunity from
prosecution can be distinguished from the exercise of the
pardoning power reposed exclusively in the President.
In Brown V. Walker, 161 U.S. 591 (1896), the Court held
that a statute granting witnesses testifying before the
Interstate Commerce Commission immunity from prose-
cution was virtually a grant of amnesty and therefore
a witness could not be excused from testifying on the
ground that he might incriminate himself. The granting
of immunity to witnesses before prosecution on a quid
GREAT FORD LIBHARY
pro quo basis seems readily distinguishable from the
grace concept intrinsic in amnesty. Immunity statutes
- 5 -
have the limited and special purpose of obviating the
constitutional privilege against self-imcrimination.
Brown S should not be read as support for the proposition
that Congress can pass a general amnesty statute which
in effect is an exercise of the pardoning power. See
distinction discussed in Burdick V. United States, 236
U.S. 79, 94-95 (1915).
In The Laura, 114 U.S. 411 (1885), the Supreme Court
upheld the remission of a fine by the Secretary of the
Treasury acting pursuant to Congressional authorization.
the Court observed that the President's power to pardon
offenses and remit penalties is not exclusive, the case
indicates that the statutory authority accorded the
Secretary of the Treasury was placed wholly within his
discretion and that a remission could not have occurred
without his concurrence. Under such circumstances, the
degree of Congressional encroachment on the Executive's
power to pardon was minimal, given the predominant
role accorded Executive discretion by the statute.
d. Does the judicial branch have the power to pardon?
(1) This issue has been addressed by the Supreme Court in
Ex Parte United States, 242 U.S. 27 (1916). In this case,
the Court held that courts possess the right to impose
punishment provided by law. But this right affords no
ground for the contention that "
the power to enforce
begets inherently a discretion to permanently refuse to
do SO. Authority to define and fix punishment is legis-
lative and includes the right to bring within judicial
discretion in advance elements of consideration which
would be otherwise beyond the scope of judicial
authority; but that the right to relieve from the punishment,
fixed by law, belongs to the executive department."
3. Must the recipient of an offer of pardon accept it?
a. Yes, without acceptance, an offer of pardon lapses.
(1) United States V. Wilson, 32 U.S. (7 Pet. ) 150 (1833)
which states that a pardon is a "deed" to the validity of
which delivery is essential and is not complete without
acceptance.
is
FORD
- 6 -
X
(2) Burdick V. United States, 236 U.S. 79 (1915), holding
that acceptance is essential to a pardon's validity.
(3) Biddle V. Perovich, 274 U.S. 480, 486 (1927), dis-
tinguishes a commutation which needs no acceptance
from a pardon which does.
(4) 11 Op. A. G. 227 (1865) at p. 230 states that "After the
pardon has been accepted, it becomes a valid act, and
the person receiving it is entitled to all its benefits. 11
[sin]ain
See also 41 Op. A. G. 251, 254-258 (1955).
(5) In re DePuy, 7 Fed. Cas. 507 (Cas. No. 3814, 1869);
Ex Parte Perovich, 9 F. 2d 124 (D. Kan. 1925).
4. Does acceptance of a pardon imply an admission of guilt?
a. Yes.
b. 6 Op. A. G. 20 (1853) states that a pardon before trial and
conviction is proper 11
because the act of clemency and
grace is applied to the crime itself, not to the mere formal
proof of the crime by process of law. But there must be
satisfactory evidence of some kind as to the guilt of the party.
And it has been held unwise and inexpedient, as a general
rule, to interpose the pardoning power in anticipation of trial
and condemnation, although particular circumstances may
exist to justify such an exceptional act on the part of the
President. Mr. Wirt's opinion, March 30, 1820; Mr. Berrien's
opinion, October 12, 1829; Mr. Taney's opinion, December 28,
1831. 11 6 Op. A. G. at 21.
11 Op. A. G. 227, 228 (1865) states that "There can be no
pardon where there is no actual or imputed guilt. The
acceptance of a pardon is a confession of guilt, or of the
existence of a state of facts from which a judgment of guilt
would follow. 11
Burdick V. United States, 236 U.S. 70 (1915) states that a
pardon carries an imputation of guilt; acceptance a confession
of it. But legislative immunity has no such imputation or
FOND
confession, being the unobtrusive act of the law given protection
LIBRARY
against a sinister use of the witnesses; compelled testimony.
5. May a pardon be void ab initio?
a. Yes.
- 7 -
b. 11 Op. A. G. 227 at 229 (1865) states that "A pardon procured
by fraud or for a fraudulent purpose, upon the suppression
of the truth or the suggestion of falsehood, is void. It is a
deed of mercy given without other fee or reward than the
good faith, truth and repentance of the culprit. On the other
hand, as an act of grace freely given, when obtained without
falsehood, fraud, and for no fraudulent use, it should be
liberally construed in favor of the repentent offender."
6. May the President grant a pardon without first investigating the
facts upon which the pardon operates to relieve an individual
from punishment?
a. Yes.
b. 1 Op. A. G. 359 (1820) stating with respect to the suggestion
that the President must either grant a new trial because of
the petitioners' submission of new facts upon which to base
the pardon or to accept without question the explanation of
the petitioners that "I do not think that the power of pardon
either requires or authorizes him to do the one or the other
of these things; but that, on the contrary, to do either would
be an abuse of that power. 11 Distinguish that right to do
something from the judgment whether something which one
has the right to do should be done in a particular manner.
B. Form of the Pardon
1. Must a pardon have a particular form or designation?
a. Yes.
b. Ex Parte Wells, 59 U.S. (18 How.) 307, 310 (1855)
"Such a thing as a pardon without a designation of its
kind is not known in the law. Time out of mind, in the
earliest books of the English law, every pardon has its
particular denomination. They are general, special, or
particular, conditional or absolute, statutory, not
necessary in some cases, and in some grantable of course. 11
c. It appears that there is a difference between a full and un-
conditional pardon for an offense which has been specified
in the preamble of the pardon statement, and a "general"
pardon.
- 8 -
See Stetler's Case, 22 Fed. Cas. (Cas. No. 13, 380,
1852) where the Court distinguished between a full and
unconditional pardon, which was there involved, and a
general pardon. The Court held that the pardon which was
full and unconditional was valid for the offense recited in
the preamble but that this was not a general pardon for
other crimes.
8 Op. A. G. 281 (1857) also made specific reference to the
fact that the form of the pardon was significant. As an
example, the Opinion stated "a 'general' pardon restores
the competency of a party as a witness but that effect may
not follow a special remission merely of the residue of a
sentence i.e., commutation."
d. President Ford referred to Mr. Nixon's pardon as "full,
free and absolute" and covering the period of his term in
office.
2. Must the form of the pardon include a statement which indicates
the intent of the President with respect to the offenses encompassed
by the pardon?
a. Stetler's Case, supra, states that the "effect of the preamble
/of the pardon statement/ reciting a single offense limits
the general words of the grant of pardon."
b. Where the scope of the pardon is ambiguous, 11 Op. A. G.
227 at 229 (1865) suggests that since the pardon is essentially
an act of grace, "when obtained without falsehood, fraud,
and for no fraudulent use, it should be liberally construed
in favor of the repentent offender."
3. If there is any ambiguity regarding the President's intent in
specifying the offenses which are the subject of the pardon, may
he be required to specify his intent?
a. No.
b.
So long as the offenses covered or which may be covered are
in some manner treated by the terms of the pardon, i.e.,
"during the period from January 20, 1969 through August 9,
1974. 11
LIDRARY
C.
Somewhat bearing on this consideration is the comment in
11 Op. A. G. 227, 232-233 (1865) which suggests that it
would be proper for the judiciary to determine in each
- 9 -
particular case the adequacy of the repicients' acceptance
of the terms of a pardon. Apparently, ambiguity with
respect to acceptance is a subject of judicial determination,
permitting a court to review the expression of intent in a
pardon as the way of gauging the adequacy of the acceptance.
C. Timing of the Pardon
1. May a pardon precede indictment and conviction?
a. Yes.
b. During the debates of the Constitutional Convention, a motion
was made to insert the words "after conviction" after the
words "reprieves and pardons". Mr. James Wilson of
Pennsylvania objected to this proposal on the grounds that
"pardon before conviction might be necessary in order to
obtain the testimony of accomplices. " The motion was then
withdrawn. 2 M. Farrand, supra, at 422, 426.
1
C.
6 Op. A. G. 20, 21 (1853) permits the offer of a pardon before
trial and conviction "
because the act of clemency and
grace is applied to the crime itself, not to the mere formal
proof of the crime by process of law. "
d. Ex Parte Garland, 71 U.S. (4 Wall. ) 333 (1866) states that
the pardoning power may be exercised at any time after its
commission, either before legal proceedings are taken, or
during their pendency, or after conviction and judgment.
e. 8 Op. A. G. 281 (1857) states "He may pardon before trial
and conviction. He may pardon at any time either anterior
to prosecution or pending the same or subsequent to the
executions -- subject in the latter case only to the limits of
legal, moral, or physical possibilities.
f. Stetler's Case, supra, states that "the President has consti-
tutional authority to pardon an offense so long as any of its
consequences remain. "
2. May a pardon include offenses which have neither been discovered,
nor listed in the pardon statement at the time of its issuance?
FOND
a. Yes.
LIBRARY
- 10 -
b. If the pardon statement designates that the pardon will be
general or if by its terms the pardon states that it includes
"all" offenses which have been committed by the recipient,
knowledge of the precise types of crimes involved is irrele-
vant. A pardon is essentially directed to the nullification
of the legal consequences flowing from an offense. Such an
effect is not dependent on knowledge or enumeration of the
offenses involved. 22 Op. A. G. 36 (1898) Since the Congress
cannot limit the President's power to pardon, "the inquiry
arises as to the effect and operation of a pardon, and on this
point all the authorities concur. A pardon reaches both
punishment prescribed for the offense and the guilt of the
offender; and when the pardon is full it releases punishment
and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed
the offense. "
D. Challenge and Review of a Pardon
1. Who has standing to challenge the pardon?
5.
a. The President
Matter of DePuy, 7 Fed. Case. No. 3814 (1869) states that
the President has the right to arrest a pardon, but only
before it has been delivered and accepted by the grantee.
b. Leon Jaworski, Special Prosecutor, has standing to challenge
the pardon. Ordinarily, of course, a prosecutor is subject
to the President's control, so the basis of his challenge would
not be that the incumbent President acted improperly. But
here, the understanding between the Department of Justice,
the President and the Special Prosecutor contained in Order
No. 551-73 (Nov. 2, 1973), 38 Fed. Reg. 30738, provided
"that the President will not exercise his constitutional powers
to effect the discharge of the Special Prosecutor or to limit
the independence that he is hereby given. " The President
further agreed not to remove him from his duties except for
extraordinary improprieties on his part and without the
President's first consulting the maj ority and the minority
leaders and chairmen and ranking minority members of the
LIBRARY
Judiciary Committees of the Senate and House of Representa-
tives and ascertaining that their consensus is in accord with
his proposed action. 11
- 11 -
Note the decision in Nader V. Bork,
F. Supp.
(D. D. C. 1973) 42 L. W. 2262, which apparently does not
address the standing question, but did hold that Acting
Attorney General Bork's firing of Special Prosecutor
Cox was illegal.
From newspaper reports of September 9, 1974,
Mr. Jaworski had decided not to challenge the pardon.
New York Times, p. 1 col. 4 states that "The special
prosecutor 'accepts the decision'
'He thinks it's
within the President's power to do it. His feelings is that
the President is exercising his lawful power, and he
accepts it. 111
The challenge would have to be based on the grounds dis-
cussed above -- notably, fraud in the inducement. There is
no Federal case law which will indicate that obtaining it by
inducement contrary to public policy (e.g., a "deal" for
Nixon's resignation) would constitute invalidating fraud.
Obviously, however, care should be taken to eliminate any
such speculation. It is difficult to argue that the pardon
violates the agreement with Jaworski. It does not "effect
/his/ discharge" or "limit his independence" or "remove
him from his duties. " But obviously, questions can be
expected on this point.
2. May the President revoke a pardon once it has been accepted?
a. No.
b. In re DePuy, 7 Fed. Cas. 507 (Cas. No. 3814, 1869). In
reviewing a pardon by the President, the Court stated that
"when a pardon is complete there is no power to revoke it,
any more than there is power to revoke any other completed
act. 11 Once a pardon has been accepted, it becomes a
completed act and cannot be revoked.
c. This situation should be distinguished from the case where
the pardon is conditional and the recipient fails to fulfill the
terms of the condition. See Lupo V. Zerbst, 92 F. 2d
362 (5th Cir. 1937).
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3. Can Congress challenge a pardon?
a. No.
b. United States V. Klein, 13 Wall. 128, 143, 148 (1872):
"Now it is clear that the legislature cannot change the
effect of such a pardon any more than the executive can change
a law. 11
4. See discussion of fraud as a basis for challenging a pardon,
supra at (A)(5) of the outline discussing 11 Op. A. G. 227 (1865).
5. May courts review a grant of a pardon?
a. Yes.
b. Judicial review may not extend to the propriety of the
President's exercise of the pardoning power. However, the
courts have reviewed such issues as whether the offense
pardoned falls within the category of an offense against the
United States (Ex Parte Grossman, supra); whether the
conditions imposed are valid (i.e., Hoffa United States
(most recent example); Ex Parte Wells, supra; United
States V. Klein, supra); whether the grantor of the pardon
has the authority to issue the pardon (The Laura, supra;
22 Op. A. G. 36, supra; 19 Op. A. G. 106, supra); whether
the terms of the pardon are ambiguous; and whether at the
time of the issuance of the pardon the President was consti-
tutionally able to exercise the pardoning power by reason
of the Twenty-fifth Amendment.
6. Can a recipient of an invalid pardon claim estoppel if he is
prosecuted for an offense covered by a pardon allegedly granted
to him?
a. Yes, However, there is no case law on this point.
b. It is reasonable that if in reliance on the grant of a pardon
(where the pardon might be phrased in ambiguous terms),
the recipient "waives" his Fifth Amendment protection
against self-incrimination by making incriminating statements,
subsequent prosecution would be estopped. The recipient
FORD
because of his reliance on the pardon in making those state-
LIBRARY
ments would effectively be prevented from obtaining a fair
trial by an impartial jury, guaranteed him by the Sixth
Amendment.
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E. Extent of the Pardoning Power
1. Can the pardoning power affect either state criminal jurisdiction
or civil liability to third parties?
a. No.
b. (Angle V. Chicago, St. P. M. &O. R. Co., 151 U.S. 1 (1893);
Osborn V. United States, 91 U.S. 474 (1875). As to third
parties (see also 5 Op. A. G. 532 (1852)), stating "this
power of granting pardons does not confer an unlimited
power
The power of granting pardons does not extend
to the release of the portion of fines, penalties, and for-
feitures which, by United States law, are directed to be dis-
tributed by the individual. Such would deprive individuals
of their interests
...
and they would suffer loss. "
C. Ex Parte Grossman, supra, at page 121 which states "neither
in this country nor in England can /a pardon/ interfere with
the use of coercive measures to enforce a suitor's rights. 11
d. Look to the express terms of Article II, Section 2, cl. 1
which limits the power to offenses against the United States.
2. What are offenses against the United States?
a. Ex Parte Grossman, supra
(1) A pardon of the president is meant to operate on offenses
against the United States as distinguished from offenses
against the S tates.
(2) Offenses against the United States include, but are not
limited to, crimes and misdemeanors defined and
announced by Congressional acts.
(3) The words of the pardon clause were not meant to exclude
therefrom common law offenses in "the nature of con-
tempts against the dignity and authority of United States
courts. 11 Criminal, but not civil, contempts are subject
GERALD
LIBRARY
to pardon.
(4) The term offenses is used in the Constitution in a more
comprehensive sense than are the terms "crimes" and
"criminal prosecution".
- 14 -
b. A state felony (i.e., assault and violation of traffic
regulations) is not an offense against the United States.
In re Bocchiaro, 49 F. Supp. 37 (W. D. N. Y. 1943)
C. The pardon power is sufficient to remit a fine imposed on
a citizen for contempt for neglecting to serve as a juror.
4 Op. A. G. 317 (1844)
d. The pardon power extends to all penalties and forfeitures,
as well as other punishments. 8 Op. A. G. 281 (1857)
e. Proceedings instituted by the United States for punishment
of criminal contempt committed by a violation of an in-
junction is an offense against the United States. United
States V. Goldman, 277 U.S. 229 (1928).
F. Equal Protection Argument
1. Can others who allegedly have committed the same offenses as
co-conspirators or accomplices sustain a claim that they have
been denied equal protection when one of their number has been
pardoned?
a. No. The act of pardoning is essentially an act of executive
grace, specifically directed usually at one particular person.
Moreover, there is no equal protection argument possible
where there is a rational basis upon which a distinction can
be made.
Even if equal protection considerations were raised, it is
arguable that considerations, other than those strictly legal,
may validly distinguish one co-conspirator from another,
i.e., health, position, effect of a trial on the national con-
science and morale, as well as the extent of the recipient's
participation.
Since this power is ultimately designed to function as a
stress point in our Constitutional fabric to which no citizen
has a right, failure to accord the grace to all involved in a
particular offense does not violate equal protection.
2. May the pardon of Mr. Nixon be considered in the sentencing by
judges presiding over trials involving Watergate-related offenses?
- 15 -
a. Yes. The sentencing power of the judge is wholly dis-
cretionary and subject to very little review so long as the
terms of the sentences are within the statutory limits.
G. Prospective Application of the Pardoning Power.
1. Can a Presidential pardon be prospective in application to
offenses against the United States committed after the offer
of the pardon?
a. No. 22 Op. A. G. 36, 39 (1898).
H. Effect of Pardon.
1. Can President Nixon refuse to testify in future Watergate trials
by claiming his Fifth Amendment right against self-incrimination?
a. No. He has been granted immunity from federal criminal
prosecution. He may refuse to testify on matters which
would involve State criminal liability since he has not been
given immunity with respect to State liability. Jaworski
could give him such immunity.
2. If Nixon testifies at Watergate trials and is shown to have lied
under oath and if he is then charged with perjury can he raise
President Ford's pardon as a bar to liability for perjury? No.
A pardon is limited in this case to crimes completed as of the
date of Mr. Nixon's resignation, August 9, 1974.
3. Does Nixon face the possibility of criminal tax liability for
tax fraud in California? Yes.
4. Would Nixon be subject to civil suits? Yes.
I. Executive Privilege: Congressional Demands.
1. How does Executive Privilege operate in response to
Congressional demands?
Congressional demands for material may be grouped into
four categories:
&
FORD
GERALD
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a.
Some Presidents have acknowledged that a demand for
material pursuant to an impeachment inquiry would re-
quire production for any and all executive material. See
Washington's statement, 5 Annals of Congress 710-12 (1796).
b. Particularized Congressional demands for materials pursuant
to a legislative mission may be rejected on the basis of
Executive Privilege where it is deemed by the President
that the production of such material would be detrimental
to the functioning of the Executive Branch.
C. Particularized Congressional demands for sensitive materials
have at times been met with certain restrictions on access,
e.g., examination by only the Chairman and ranking
Republicans on a committee.
d.
Non-particularized claims for general access with no
compelling indication of need are routinely rejected.
2. Does a former President have the authority to invoke Executive
Privilege for materials or conversations arising during his
Presidency?
Yes. The rationale behind the privilege and the interest it serves
compels an affirmative response. The invocation of Executive
Privilege is not so much to protect the content of the particular
discussions demanded as it is to protect the expectation of con-
fidentiality which enables future discussions to be free and frank.
Principle recognized as early as 1846. Richardson, Messages
and Papers of the Presidents, Vol. IV, 433-34.
Former President Truman in 1953, having returned to public
life, asserted privilege in response to House committee subpoena
concerning matters which transpired while he was in office. The
House committee accepted the letter and did not attempt to
enforce the subpoena.
3. Does the Congress itself protect a sphere of confidentiality in its
internal deliberations?
Yes. At least four precedents can be given in this regard.
a. In 1962, certain staff members of the Senate Rackets Committee
were allowed to testify in a criminal proceeding against
Jimmy Hoffa but they were forbidden from making available
- 17 -
any documents in the hands of the Senate and from testifying
about information that they gained while employed in the
Senate. 108 Cong. Rec. 3626 (1962). In explaining the
resolution to the Senate, Senator McClellan said in part:
"The Senate recognizes it has certain privileges as a
separate and distinct branch of government which it wishes
to protect." Id. at 3627.
b. In 1970, the House Committee on Armed Services refused
to comply with a request from counsel for Lieutenant
William Calley for the production of testimony given to the
committee by Calley in closed session. The chairman of the
committee, Rep. Hebert, indicated that "
only Congress
can direct the disclosure of legislative records. 11 See 116
Cong. Rec. 37652 (1970).
C. In 1972, the United States Senate by resolution refused a
judicial subpoena for documentary evidence in the criminal
case of United States V. Brewster, then pending in the D. C.
District Court. 118 Cong. Rec. 766 (1972).
d. In 1974, the Senate passed a resolution allowing a Senate
staff member to testify in a criminal proceeding but limited
the scope of the testimony by providing that 11
he shall
respectfully decline to provide information concerning any
and all other matters that may be based on knowledge
acquired by him in his official capacity
" S. Res. 338,
passed June 12, 1974.
II. QUESTIONS OF FACT
A. Introductory Notes: This hearing presents a real opportunity for
the President. At the same time, however the open-ended nature
of the factual inquiry must be limited to ensure a responsible
search for the truth regarding the pardon. Although the President
need not assume a defensive posture, potential for political mischief
must be minimized.
1. Ground Rules. The ground rules which have been agreed upon with
the subcommittee may be summarized as follows:
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a. Opening Statement. No time limitations but statement
should be responsive to each of the formal inquiries
raised by H. Res. 1367 and H. Res. 1370.
b. Scope of Inquiry. The understanding has been reached
that the inquiry shall be limited by the scope of the two
formal resolutions of inquiry.
c: Time Limitations. Each of the nine members sitting with
the subcommittee shall have the opportunity to question
the President for two periods of five minutes each. Thus,
there will be a total of 90 minutes of questioning.
d. Television. Consent has been given to live television
coverage of the hearing.
2. Thoughts on ground rules. In my opinion, further consideration
should be given to the ground rules in the following respects:
-
a. Time Limits. If possible, the agreement reached on the
period for questioning should be reopened and substantially
reduced. Perhaps, a total of 1/2 hour to be controlled by and
divided between the chairman and ranking Republican.
Alternatively, only 5 minutes per member might be allowed
for a total of 45 minutes. Ninety minutes is simply too long.
b. Order of questioning. The order of questioning should
alternate from Democrat to Republican and form senior to
junior. The Democrats should not be allowed to exhaust
their time prior to the allotment of time to the Republicans.
C. Nixon-GSA Agreement. It should be clearly understood
that the tapes agreement is beyond the scope of this inquiry,
except to the extent that it might impact upon the grant of
the pardon.
d. Prior Executive's Discussions and Materials which are
presumptively privileged. It should be understood that
President Ford will not infringe upon any claim of Executive
Privilege which former President Nixon may want to assert
with regard to materials or conversations arising prior to
FORD is LIBRARY GENALD
- 19 -
August 9th. This position can be substantially strengthened
by a letter to Jack Miller, counsel to the former President,
inquiring as to whether he intends to assert a privilege on
behalf of the former President. Assuming Miller will not
consent to any waiver, documentation of this position will
then be available.
e.
Presumptively Privileged Discussions and Materials
Arising after August 9th. Two ground rules should be
established in this regard:
(1) President Ford will not make available members of
the White House staff for further examination on the
subject of the pardon; and
(2) Formal requests or demands for documents of the
Ford Presidency will not be complied with unless of
a public nature -- this is not to say, however, that
such materials may not be made available pursuant
to informal requests by the committee. The point in
this latter regard is that release in this context is
a Presidential prerogative.
f.
Role of the Chairman. Chairman Hungate should assume
the following responsibilities:
(1) Channel all appropriate informal requests for materials
to the White House;
(2) Strictly enforce time limitations and ground rules on
relevancy and privilege; and
(3) Rule clearly repetitious questions out of order.
3.
Need For Certainty. If equitable ground rules for this hearing
cannot be firmly established prior to Wednesday, the President
might give thought to postponing his appearance until an agreement
reflecting a good faith effort on both sides can be reached.
10110
GENALD
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B. Individuals Involved In Grant of Pardon.
1.
Who were the individuals representing Mr. Nixon during the
course of any pardon discussions or negotiations?
a.
What was the scope of authority of Mr. Miller, counsel
of record so to speak, in the pardon discussions?
b.
Was Fred Buzhardt involved in any way?
C.
Was Alexander Haig involved in any way?
d. When did Messrs. Buzhardt and Haig leave the White
House payroll?
e.
Was any representative of H. R. Haldeman privy to the
discussions?
f. Did Mr. St. Clair represent Mr. Nixon in any way relative
to the pardon?
2. Who were the individuals representing your interests during
the course of any pardon discussions or negotiations?
a.
Did anyone other than Messrs. Marsh, Hartmann, Buchen
and Becker, represent you in any way during these
discussions?
b.
How did you happen to enlist the assistance of Mr. Becker?
C. Were you aware of the fact that Mr. Becker is currently
under investigation for income tax evasion by the
Department of Justice?
d.
Was Mr. Becker paid for his efforts?
e.
Does Mr. Becker currently provide you any assistance,
legal or otherwise?
f.
With the nation's finest and most highly respected lawyers
and the Department of Justice presumably available to assist
GERALD
you in this regard, why were they not utilized?
- 21 -
as
Do you have any personal logs or minutes of your
meetings with individuals representing your interests
in this regard?
h.
May the subcommittee review these materials?
i. Would you object to our receiving testimeny from those
who assisted you on the pardon?
C. Considerations In Granting Pardon.
1. Did you have any hard evidence of the frailty of Mr. Nixon's
physical or mental health?
2. With the benefit of hindsight, what is your view of the pardon
today in terms of healing the nation's wounds?
3. What factors under consideration by you with respect to the
pardon of Mr. Nixon would not impact equally on other
Watergate defendants?
4.
Since in ordinary legal proceedings the leading member of a
criminal group is most actively prosecuted, what prompted
you to turn this notion on its head?
5. Prior to granting the pardon, did you consider the impact it
could have on the independence of the Special Prosecutor and
any pending criminal matters?
6. Did you consider discussing these matters with the Congressional
group referred to in Mr. Jaworski's charter?
7. Do you consider Mr. Nixon's statement upon acceptance of the
pardon to constitute an appropriate "statement of contrition"?
8. Did you make any notes or review any staff recommendations
as you formulated your views on the necessity for a pardon?
9. May the subcommittee review these materials?
- 22 -
D. Timing and Secrecy of Pardon.
1. In terms of setting "Watergate" to rest, might it not have
been preferable to take your case to the people prior to
the grant of the pardon?
2. Didn't your precipitous action reduce the possibility of ever
achieving a complete record of "Watergate" which presumably
is in the public interest?
3. Why wasn't a complete record of the former President's
involvement in the cover-up made public prior to the grant of
the pardon as was done prior to the acceptance of a guilty
plea on behalf of former Vice President Agnew?
4. You have indicated that your Administration would be one of
"openness" -- how does the handling of the pardon square with
that notion?
5. Did you feel any pressure to grant the pardon from any former
Nixon aides?
6. Did you feel any pressure from any Congressional sources to
grant the pardon?
7. In terms of public reaction, did you consider that your actions
could be interpreted as a quid pro quo for assuming the Presidency?
E. Relationship of Pardon to Tapes Agreement.
1. Do you have any reason to believe that any conversations which
you may have had with the former President during your service
in the House or as Vice President were secretly tape recorded?
2. Did you meet frequently with him in the Oval Office, the EOB
or the Cabinet Room where secret recording devices were
installed?
3.
Were many of these conversations of a confidential nature?
4. Did many of these conversations involve only yourself and
the former President?
GERALD FORD
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5.
Were any White House aides, other than H. R. Haldeman
or John Ehrlichman frequently in attendance at these meetings?
6.
After the existence of the tape recording devices became known,
did you ever discuss with anyone their possible content as it
might reflect on you?
7. Has anyone ever expressed to you their fears regarding the
content of the tapes as they might affect you or others close
to you?
8. Is anyone other than the former President and Mr. Haldeman
aware of the content of the tapes as they may reflect on you?
9. Did Mr. Haldeman, to your knowledge, ever attempt to exercise
any leverage over the former President or yourself with respect
to the tapes in order to secure a pardon?
10. Can you confirm or deny published reports to the effect that,
during the course of hearings on your nomination to be Vice
President, Mr. Buzhardt reviewed tapes covering certain
days when you had met with the former President?
11. Did any of your representatives participate in the development
of the Nixon-GSA tapes agreement with representatives of GSA
or Mr. Nixon?
12. Did you give these individuals any directives?
13. Paragraph 10 of the tapes agreement provides you with access to
the tapes -- how did this provision find its way into the agreement?
14.
The same paragraph provides Mr. Nixon with access -- however,
no one else can access these materials. Does this strike you
as salutary?
15. What arrangements are being made to ensure the security
of the tapes?
#
FORD
GERALD
THE WHITE HOUSE
WASHINGTON
10/15
Eva --
Here is a copy for your files of
the memo Ken did yesterday for Mr.
Buchen. Also enclosed is a copy for
Mr. Areeda. I wasn't exactly sure
where he would be tomorrow.
Dawn
EVA
THE WHITE HOUSE
WASHINGTON
October 14, 1974
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
ke
SUBJECT:
House Judiciary Subcommittee Hearing
On Pardon: Anticipated Questions For
The President.
Set forth below are a number of questions which I anticipate may be
raised at the hearing on Thursday and some rather cryptic notes
which may be of assistance to you in this regard. Hopefully, the
President will have the opportunity to consider these and all other
questions which may be anticipated prior to his appearance.
I.
QUESTIONS OF LAW
A. Basis of the Pardon Power
1. What is the Constitutional basis of the President's pardoning
power?
Article II, section 2, cl. 1: "
and he shall have Power
to Grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment. "
2. Who has the power to pardon and is the exercise of that
power exclusive?
a. Only the President may exercise the power to pardon.
(1) Ex Parte Wells, 59 U.S. (18 How.) 307 (1855): at
p. 309 "Under this power, the President has
granted reprieves and pardons since the commence-
ment of the present government
No statute
has ever been passed regulating it in cases of
conviction by the civil authorities. In such cases,
the President has acted exclusively under the power
as it is expressed in the constitution."
- 2 -
(2) Ex Parte Garland, 4 Wall. 333, 380 (1867): "This
power of the President is not subject to legislative
control. The benign prerogative of mercy reposed
in him cannot be fettered by any legislative
restrictions. 11
(3) Ex Parte Grossman, 267 U.S. 87, 120 (1924): "The
Executive can reprieve or pardon all offenses ...
conditionally or absolutely, and this without
modification or regulation by Congress."
(4) The Laura, 114 U.S. 411, 414 (1885): The President's
11
constitutional power in these respects cannot
be interrupted, abridged, or limited by any legis-
lative enactment."
(5) See also, United States V. Klein, 13 Wall. 128 (1872)
and Knote V. United States, 95 U.S. 149 (1877), both
stating that the President has the power to grant a
full pardon.
(6) Thompson V. Duehay, 217 Fed. 484, 487 (W. D. Wash.
1914) affd. 223 Fed. 305 (9th Cir. 1915); Bozel V.
United States, 139 F. 2d 153 (6th Cir. 1943); United
States V. Kawkita, 108 F. Supp. 627 (S. D. Cal. 1952);
United States V. Jenkins, 141 F. Supp. 499 (S. D. Ga.
1956).
(7) 20 Op. A. G. 668 (1893), stating that " the
pardoning power of the President is absolute, and is
not a subject of legislative control."
41 Op. A. G. 251 (1955), stating' "Nor do I believe that
the parole laws and regulations can be regarded as
a limitation upon the President's pardoning power
vested in him by the Constitution. The books are
replete with statements that Congress can neither
control nor regulate the action of the President in
this regard. 11 At p. 254.
b. May the President delegate his power to pardon to other
officials or agencies within the Executive Branch?
FORD
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(1) In light of the above cases, it would appear that the
power to pardon is nondelegable. To support this
premise, 19 Op. A. G. 106 (1888) states that "This
grant of power to pardon offenses against the United
States to the President alone forbids the exercise of it
by any one else
But it is to be presumed Congress
passed law (permitting an officer to pardon after general
court-martial) in subservience to and not in violation of
the Constitution. " Since the ability to remit punishment
was limited solely to punishment and not to the offense
itself, which is the essential object of a pardon, the
President's pardoning power was not impinged. The
Opinion went on to state, however, "But when the law
has finally pronounced its judgment /and an offense has
been established/, it /Congress/ could not and did not
intend to grant the power to pardon the offense against
the United States. " At p. 108 "If the power of the officer
to pardon existed at any time after the final judgment, and
could be exercised after the offender had paid a large
part of the penalty of the law, he might be again
prosecuted, convicted, and twice punished for the same
offense. " At p. 109.
(2) But see dictum in Solesbee V. Balkcom, 339 U.S. 9
(1950) which states that the "power of executive clemency
has traditionally rested in governors or the President,
although some of that power is often delegated to agencies
such as pardon or parole boards. Seldom has this power
of executive clemency been subjected to review by the
courts. It
(3) I believe that 41 Op. A. G. 251 (1955) disposes of the
issue that the parole statutes in any measure detract
from the President's pardoning power. Viewing the
dictum stated above as relating solely to the act of
parole, it is clear that judicial review of the decision
to parole has been denied the courts.
c. Does the Congress have any power to pardon?
LIBRARY
(1) From a reading of the Debates of the Constitutional
Convention, it appears that the Framers of the Consti-
tution specifically omitted the Congress from participation
in the exercise of the President's pardoning power. By
a vote of 1 to 8 the following clause including the Senate
- 4 -
in the participation of the Executive's pardoning power
was omitted: "
power to grant reprieves
and pardons with consent of the Senate. " (emphasis
supplied) 2 M. Farrand, Records of the Federal
Convention of 1787, 419 (1937).
In one of the debates, Rufus King of Massachusetts made
the following observation: "It would be inconsistent with
the constitutional separation
of powers to let the
prerogative Lof pardon/ to be exercised by the legis-
lature -- a legislative body is utterly unfit for the purpose.
They are governed too much by the passions of the
moment. 11 2 M. Farrand, supra, at p. 626.
(2) The power to pardon has been committed exclusively by
the Constitution to the President of the United States.
See Ex Parte Wells, supra; Ex Parte Garland, supra;
Ex Parte Grossman, supra.
(3) In 22 Op. A. G. 36 (1898), it is stated that:
"The power thus conferred is unlimited with the ex-
ception stated (except in cases of impeachment). It
extends to every offense known to the law, either before
legal proceedings are taken, or during their pendency,
or after conviction and judgment. This power of the
President is not subject to legislative control. Congress
can neither limit the effect of his pardon nor exclude from
its exercise any class of offenders. The benign pre-
rogative of mercy reposed in him cannot be fettered by
any legislative restrictions."
(4) Cases of general grants of amnesty or immunity from
prosecution can be distinguished from the exercise of the
pardoning power reposed exclusively in the President.
In Brown V. Walker, 161 U.S. 591 (1896), the Court held
that a statute granting witnesses testifying before the
Interstate Commerce Commission immunity from prose-
cution was virtually a grant of amnesty and therefore
a witness could not be excused from testifying on the
ground that he might incriminate himself. The granting
of immunity to witnesses before prosecution on a quid
pro quo basis seems readily distinguishable from the
grace concept intrinsic in amnesty. Immunity statutes
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have the limited and special purpose of obviating the
constitutional privilege against self-imcrimination.
Brown should not be read as support for the proposition
that Congress can pass a general amnesty statute which
in effect is an exercise of the pardoning power. See
distinction discussed in Burdick V. United States, 236
U.S. 79, 94-95 (1915).
In The Laura, 114 U.S. 411 (1885), the Supreme Court
upheld the remission of a fine by the Secretary of the
Treasury acting pursuant to Congressional authorization.
the Court observed that the President's power to pardon
offenses and remit penalties is not exclusive, the case
indicates that the statutory authority accorded the
Secretary of the Treasury was placed wholly within his
discretion and that a remission could not have occurred
without his concurrence. Under such circumstances, the
degree of Congressional encroachment on the Executive's
power to pardon was minimal, given the predominant
role accorded Executive discretion by the statute.
d. Does the judicial branch have the power to pardon?
(1) This issue has been addressed by the Supreme Court in
Ex Parte United States, 242 U.S. 27 (1916). In this case,
the Court held that courts possess the right to impose
punishment provided by law. But this right affords no
ground for the contention that "
the power to enforce
begets inherently a discretion to permanently refuse to
do SO. Authority to define and fix punishment is legis-
lative and includes the right to bring within judicial
discretion in advance elements of consideration which
would be otherwise beyond the scope of judicial
authority; but that the right to relieve from the punishment,
fixed by law, belongs to the executive department."
3. Must the recipient of an offer of pardon accept it?
a. Yes, without acceptance, an offer of pardon lapses.
(1) United States V. Wilson, 32 U.S. (7 Pet. ) 150 (1833)
which states that a pardon is a "deed" to the validity of
which delivery is essential and is not complete without
acceptance.
B.
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(2) Burdick V. United States, 236 U.S. 79 (1915), holding
that acceptance is essential to a pardon's validity.
(3) Biddle V. Perovich, 274 U.S. 480, 486 (1927), dis-
tinguishes a commutation which needs no acceptance
from a pardon which does.
(4) 11 Op. A. G. 227 (1865) at p. 230 states that "After the
pardon has been accepted, it becomes a valid act, and
the person receiving it is entitled to all its benefits. "
See also 41 Op. A. G. 251, 254-258 (1955).
(5) In re DePuy, 7 Fed. Cas. 507 (Cas. No. 3814, 1869);
Ex Parte Perovich, 9 F. 2d 124 (D. Kan. 1925).
4. Does acceptance of a pardon imply an admission of guilt?
a. Yes.
b. 6 Op. A. G. 20 (1853) states that a pardon before trial and
conviction is proper 11
because the act of clemency and
grace is applied to the crime itself, not to the mere formal
proof of the crime by process of law. But there must be
satisfactory evidence of some kind as to the guilt of the party.
And it has been held unwise and inexpedient, as a general
rule, to interpose the pardoning power in anticipation of trial
and condemnation, although particular circumstances may
exist to justify such an exceptional act on the part of the
President. Mr. Wirt's opinion, March 30, 1820; Mr. Berrien's
opinion, October 12, 1829; Mr. Taney's opinion, December 28,
1831. " 6 Op. A. G. at 21.
11 Op. A. G. 227, 228 (1865) states that "There can be no
pardon where there is no actual or imputed guilt. The
acceptance of a pardon is a confession of guilt, or of the
existence of a state of facts from which a judgment of guilt
would follow. 11
Burdick V. United States, 236 U.S. 70 (1915) states that a
pardon carries an imputation of guilt; acceptance a confession
of it. But legislative immunity has no such imputation or
confession, being the unobtrusive act of the law given protection
against a sinister use of the witnesses' compelled testimony.
5. May a pardon be void ab initio?
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a. Yes.
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b.
11 Op. A. G. 227 at 229 (1865) states that "A pardon procured
by fraud or for a fraudulent purpose, upon the suppression
of the truth or the suggestion of falsehood, is void. It is a
deed of mercy given without other fee or reward than the
good faith, truth and repentance of the culprit. On the other
hand, as an act of grace freely given, when obtained without
falsehood, fraud, and for no fraudulent use, it should be
liberally construed in favor of the repentent offender. "
6. May the President grant a pardon without first investigating the
facts upon which the pardon operates to relieve an individual
from punishment?
a. Yes.
b. 1 Op. A. G. 359 (1820) stating with respect to the suggestion
that the President must either grant a new trial because of
the petitioners' submission of new facts upon which to base
the pardon or to accept without question the explanation of
the petitioners that "I do not think that the power of pardon
either requires or authorizes him to do the one or the other
of these things; but that, on the contrary, to do either would
be an abuse of that power. 11 Distinguish that right to do
something from the judgment whether something which one
has the right to do should be done in a particular manner.
B. Form of the Pardon
1. Must a pardon have a particular form or designation?
a. Yes.
b. Ex Parte Wells, 59 U.S. (18 How.) 307, 310 (1855)
"Such a thing as a pardon without a designation of its
kind is not known in the law. Time out of mind, in the
earliest books of the English law, every pardon has its
particular denomination. They are general, special, or
particular, conditional or absolute, statutory, not
necessary in some cases, and in some grantable of course. "
c. It appears that there is a difference between a full and un-
conditional pardon for an offense which has been specified
in the preamble of the pardon statement, and a "general"
pardon.
R.
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See Stetler's Case, 22 Fed. Cas. (Cas. No. 13, 380,
1852) where the Court distinguished between a full and
unconditional pardon, which was there involved, and a
general pardon. The Court held that the pardon which was
full and unconditional was valid for the offense recited in
the preamble but that this was not a general pardon for
other crimes.
8 Op. A. G. 281 (1857) also made specific reference to the
fact that the form of the pardon was significant. As an
example, the Opinion stated "a 'general' pardon restores
the competency of a party as a witness but that effect may
not follow a special remission merely of the residue of a
sentence i.e., commutation."
d. President Ford referred to Mr. Nixon's pardon as "full,
free and absolute" and covering the period of his term in
office.
2. Must the form of the pardon include a statement which indicates
the intent of the President with respect to the offenses encompassed
by the pardon?
a.
Stetler's Case, supra, states that the "effect of the preamble
Lof the pardon statement/ reciting a single offense limits
the general words of the grant of pardon."
b. Where the scope of the pardon is ambiguous, 11 Op. A. G.
227 at 229 (1865) suggests that since the pardon is essentially
an act of grace, "when obtained without falsehood, fraud,
and for no fraudulent use, it should be liberally construed
in favor of the repentent offender. If
3. If there is any ambiguity regarding the President's intent in
specifying the offenses which are the subject of the pardon, may
he be required to specify his intent?
a. No.
b.
So long as the offenses covered or which may be covered are
in some manner treated by the terms of the pardon, i.e.,
"during the period from January 20, 1969 through August 9,
1974. "
&
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c.
Somewhat bearing on this consideration is the comment in
11 Op. A. G. 227, 232-233 (1865) which suggests that it
would be proper for the judiciary to determine in each
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particular case the adequacy of the repicients' acceptance
of the terms of a pardon. Apparently, ambiguity with
respect to acceptance is a subject of judicial determination,
permitting a court to review the expression of intent in a
pardon as the way of gauging the adequacy of the acceptance.
C. Timing of the Pardon
1. May a pardon precede indictment and conviction?
a. Yes.
b. During the debates of the Constitutional Convention, a motion
was made to insert the words "after conviction" after the
words "reprieves and pardons". Mr. James Wilson of
Pennsylvania objected to this proposal on the grounds that
"pardon before conviction might be necessary in order to
obtain the testimony of accomplices. " The motion was then
withdrawn. 2 M. Farrand, supra, at 422, 426.
c. 6 Op. A. G. 20, 21 (1853) permits the offer of a pardon before
trial and conviction "
because the act of clemency and
grace is applied to the crime itself, not to the mere formal
proof of the crime by process of law."
d. Ex Parte Garland, 71 U.S. (4 Wall. ) 333 (1866) states that
the pardoning power may be exercised at any time after its
commission, either before legal proceedings are taken, or
during their pendency, or after conviction and judgment.
e.
8 Op. A. G. 281 (1857) states "He may pardon before trial
and conviction. He may pardon at any time either anterior
to prosecution or pending the same or subsequent to the
executions -- subject in the latter case only to the limits of
legal, moral, or physical possibilities.
f.
Stetler's Case, supra, states that "the President has consti-
tutional authority to pardon an offense so long as any of its
consequences remain. If
2. May a pardon include offenses which have neither been discovered,
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nor listed in the pardon statement at the time of its issuance?
Yes.
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b.
If the pardon statement designates that the pardon will be
general or if by its terms the pardon states that it includes
"all" offenses which have been committed by the recipient,
knowledge of the precise types of crimes involved is irrele-
vant. A pardon is essentially directed to the nullification
of the legal consequences flowing from an offense. Such an
effect is not dependent on knowledge or enumeration of the
offenses involved. 22 Op. A. G. 36 (1898) Since the Congress
cannot limit the President's power to pardon, "the inquiry
arises as to the effect and operation of a pardon, and on this
point all the authorities concur. A pardon reaches both
punishment prescribed for the offense and the guilt of the
offender; and when the pardon is full it releases punishment
and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed
the offense. "
D. Challenge and Review of a Pardon
1. Who has standing to challenge the pardon?
a.
The President
Matter of DePuy, 7 Fed. Case. No. 3814 (1869) states that
the President has the right to arrest a pardon, but only
before it has been delivered and accepted by the grantee.
b. Leon Jaworski, Special Prosecutor, has standing to challenge
the pardon. Ordinarily, of course, a prosecutor is subject
to the President's control, so the basis of his challenge would
not be that the incumbent President acted improperly. But
here, the understanding between the Department of Justice,
the President and the Special Prosecutor contained in Order
No. 551-73 (Nov. 2, 1973), 38 Fed. Reg. 30738, provided
"that the President will not exercise his constitutional powers
to effect the discharge of the Special Prosecutor or to limit
the independence that he is hereby given. " The President
further agreed not to remove him from his duties except for
extraordinary improprieties on his part and without the
President's first consulting the maj ority and the minority
leaders and chairmen and ranking minority members of the
Judiciary Committees of the Senate and House of Representa-
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tives and asc ertaining that their consensus is in accord with
his proposed action. 11
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Note the decision in Nader V. Bork,
F. Supp.
(D. D. C. 1973) 42 L. W. 2262, which apparently does not
address the standing question, but did hold that Acting
Attorney General Bork's firing of Special Prosecutor
Cox was illegal.
From newspaper reports of September 9, 1974,
Mr. Jaworski had decided not to challenge the pardon.
New York Times, p. 1 col. 4 states that "The special
prosecutor 'accepts the decision'
'He thinks it's
within the President's power to do it. His feelings is that
the President is exercising his lawful power, and he
accepts it. 111
The challenge would have to be based on the grounds dis-
cussed above -- notably, fraud in the inducement. There is
no Federal case law which will indicate that obtaining it by
inducement contrary to public policy (e. g., a "deal" for
Nixon's resignation) would constitute invalidating fraud.
Obviously, however, care should be taken to eliminate any
such speculation. It is difficult to argue that the pardon
violates the agreement with Jaworski. It does not "effect
/his/ discharge" or "limit his independence" or "remove
him from his duties. " But obviously, questions can be
expected on this point.
2. May the President revoke a pardon once it has been accepted?
a. No.
b. In re DePuy, 7 Fed. Cas. 507 (Cas. No. 3814, 1869). In
reviewing a pardon by the President, the Court stated that
"when a pardon is complete there is no power to revoke it,
any more than there is power to revoke any other completed
act. 11 Once a pardon has been accepted, it becomes a
completed act and cannot be revoked.
C. This situation should be distinguished from the case where
the pardon is conditional and the recipient fails to fulfill the
terms of the condition. See Lupo V. Zerbst, 92 F. 2d
362 (5th Cir. 1937).
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3. Can Congress challenge a pardon?
a. No.
b. United States V. Klein, 13 Wall. 128, 143, 148 (1872):
"Now it is clear that the legislature cannot change the
effect of such a pardon any more than the executive can change
a law. 11
4. See discussion of fraud as a basis for challenging a pardon,
supra at (A)(5) of the outline discussing 11 Op. A. G. 227 (1865).
5. May courts review a grant of a pardon?
a. Yes.
b. Judicial review may not extend to the propriety of the
President's exercise of the pardoning power. However, the
courts have reviewed such issues as whether the offense
pardoned falls within the category of an offense against the
United States (Ex Parte Grossman, supra); whether the
conditions imposed are valid (i.e., Hoffa V. United States
(most recent example); Ex Parte Wells, supra; United
States V. Klein, supra); whether the grantor of the pardon
has the authority to issue the pardon (The Laura, supra;
22 Op. A. G. 36, supra; 19 Op. A. G. 106, supra); whether
the terms of the pardon are ambiguous; and whether at the
time of the issuance of the pardon the President was consti-
tutionally able to exercise the pardoning power by reason
of the Twenty-fifth Amendment.
6. Can a recipient of an invalid pardon claim estoppel if he is
prosecuted for an offense covered by a pardon allegedly granted
to him?
a. Yes, However, there is no case law on this point.
b. It is reasonable that if in reliance on the grant of a pardon
(where the pardon might be phrased in ambiguous terms),
the recipient "waives" his Fifth Amendment protection
against self-incrimination by making incriminating statements,
subsequent prosecution would be estopped. The recipient
because of his reliance on the pardon in making those state-
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ments would effectively be prevented from obtaining a fair
trial by an impartial jury, guaranteed him by the Sixth
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Amendment.
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E. Extent of the Pardoning Power
1. Can the pardoning power affect either state criminal jurisdiction
or civil liability to third parties?
a. No.
b. (Angle V. Chicago, St. P. M. &O. R. Co., 151 U.S. 1 (1893);
Osborn V. United States, 91 U.S. 474 (1875). As to third
parties (see also 5 Op. A. G. 532 (1852)), stating "this
power of granting pardons does not confer an unlimited
power
The power of granting pardons does not extend
to the release of the portion of fines, penalties, and for-
feitures which, by United States law, are directed to be dis-
tributed by the individual. Such would deprive individuals
of their interests
and they would suffer loss. "
C. Ex Parte Grossman, supra, at page 121 which states "neither
in this country nor in England can /a pardon/ interfere with
the use of coercive measures to enforce a suitor's rights. II
d. Look to the express terms of Article II, Section 2, cl. 1
which limits the power to offenses against the United States.
2. What are offenses against the United States?
a. Ex Parte Grossman, supra
(1) A pardon of the president is meant to operate on offenses
against the United States as distinguished from offenses
against the States.
(2) Offenses against the United States include, but are not
limited to, crimes and misdemeanors defined and
announced by Congressional acts.
(3) The words of the pardon clause were not meant to exclude
therefrom common law offenses in "the nature of con-
tempts against the dignity and authority of United States
courts. 11 Criminal, but not civil, contempts are subject
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to pardon.
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LIBRARY
(4) The term offenses is used in the Constitution in a more
comprehensive sense than are the terms "crimes" and
"criminal prosecution".
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b. A state felony (i.e., assault and violation of traffic
regulations) is not an offense against the United States.
In re Bocchiaro, 49 F. Supp. 37 (W. D. N. Y. 1943)
C. The pardon power is sufficient to remit a fine imposed on
a citizen for contempt for neglecting to serve as a juror.
4 Op. A. G. 317 (1844)
d. The pardon power extends to all penalties and forfeitures,
as well as other punishments. 8 Op. A. G. 281 (1857)
e. Proceedings instituted by the United States for punishment
of criminal contempt committed by a violation of an in-
junction is an offense against the United States. United
States V. Goldman, 277 U.S. 229 (1928).
F. Equal Protection Argument
1. Can others who allegedly have committed the same offenses as
co-conspirators or accomplices sustain a claim that they have
been denied equal protection when one of their number has been
pardoned?
a. No. The act of pardoning is essentially an act of executive
grace, specifically directed usually at one particular person.
Moreover, there is no equal protection argument possible
where there is a rational basis upon which a distinction can
be made.
Even if equal protection considerations were raised, it is
arguable that considerations, other than those strictly legal,
may validly distinguish one co-conspirator from another,
i.e., health, position, effect of a trial on the national con-
science and morale, as well as the extent of the recipient's
participation.
Since this power is ultimately designed to function as a
GERALD FOKO LIBRARY
stress point in our Constitutional fabric to which no citizen
has a right, failure to accord the grace to all involved in a
particular offense does not violate equal protection.
2. May the pardon of Mr. Nixon be considered in the sentencing by
judges presiding over trials involving Watergate-related offenses?
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a. Yes. The sentencing power of the judge is wholly dis-
cretionary and subject to very little review so long as the
terms of the sentences are within the statutory limits.
G. Prospective Application of the Pardoning Power.
1. Can a Presidential pardon be prospective in application to
offenses against the United States committed after the offer
of the pardon?
a. No. 22 Op. A. G. 36, 39 (1898).
H. Effect of Pardon.
1. Can President Nixon refuse to testify in future Watergate trials
by claiming his Fifth Amendment right against self-incrimination?
a. No. He has been granted immunity from federal criminal
prosecution. He may refuse to testify on matters which
would involve State criminal liability since he has not been
given immunity with respect to State liability. Jaworski
could give him such immunity.
2. If Nixon testifies at Watergate trials and is shown to have lied
under oath and if he is then charged with perjury can he raise
President Ford's pardon as a bar to liability for perjury? No.
A pardon is limited in this case to crimes completed as of the
date of Mr. Nixon's resignation, August 9, 1974.
3. Does Nixon face the possibility of criminal tax liability for
tax fraud in California? Yes.
4. Would Nixon be subject to civil suits? Yes.
I. Executive Privilege: Congressional Demands.
1. How does Executive Privilege operate in response to
Congressional demands?
Congressional demands for material may be grouped into
four categories:
GERALD R. FORD
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a.
Some Presidents have acknowledged that a demand for
material pursuant to an impeachment inquiry would re-
quire production for any and all executive material. See
Washington's statement, 5 Annals of Congress 710-12 (1796).
b. Particularized Congressional demands for materials pursuant
to a legislative mission may be rejected on the basis of
Executive Privilege where it is deemed by the President
that the production of such material would be detrimental
to the functioning of the Executive Branch.
c. Particularized Congressional demands for sensitive materials
have at times been met with certain restrictions on access,
e. g., examination by only the Chairman and ranking
Republicans on a committee.
d.
Non-particularized claims for general access with no
compelling indication of need are routinely rejected.
2. Does a former President have the authority to invoke Executive
Privilege for materials or conversations arising during his
Presidency?
Yes. The rationale behind the privilege and the interest it serves
compels an affirmative response. The invocation of Executive
Privilege is not so much to protect the content of the particular
discussions demanded as it is to protect the expectation of con-
fidentiality which enables future discussions to be free and frank.
Principle recognized as early as 1846. Richardson, Messages
and Papers of the Presidents, Vol. IV, 433-34.
Former President Truman in 1953, having returned to public
life, asserted privilege in response to House committee subpoena
concerning matters which transpired while he was in office. The
House committee accepted the letter and did not attempt to
enforce the subpoena.
3. Does the Congress itself protect a sphere of confidentiality in its
internal deliberations?
Yes. At least four precedents can be given in this regard.
FORD
a.
In 1962, certain staff members of the Senate Rackets Committee
were allowed to testify in a criminal proceeding against
Jimmy Hoffa but they were forbidden from making available
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any documents in the hands of the Senate and from testifying
about information that they gained while employed in the
Senate. 108 Cong. Rec. 3626 (1962). In explaining the
resolution to the Senate, Senator McClellan said in part:
"The Senate recognizes it has certain privileges as a
separate and distinct branch of government which it wishes
to protect. Id. at 3627.
b. In 1970, the House Committee on Armed Services refused
to comply with a request from counsel for Lieutenant
William Calley for the production of testimony given to the
committee by Calley in closed session. The chairman of the
committee, Rep. Hebert, indicated that 11
only Congress
can direct the disclosure of legislative records. " See 116
Cong. Rec. 37652 (1970).
C. In 1972, the United States Senate by resolution refused a
judicial subpoena for documentary evidence in the criminal
case of United States V. Brewster, then pending in the D. C.
District Court. 118 Cong. Rec. 766 (1972).
d. In 1974, the Senate passed a resolution allowing a Senate
staff member to testify in a criminal proceeding but limited
the scope of the testimony by providing that 11
he shall
respectfully decline to provide information concerning any
and all other matters that may be based on knowledge
acquired by him in his official capacity
... " S. Res. 338,
passed June 12, 1974.
II. QUESTIONS OF FACT
A. Introductory Notes: This hearing presents a real opportunity for
the President. At the same time, however the open-ended nature
of the factual inquiry must be limited to ensure a responsible
search for the truth regarding the pardon. Although the President
need not assume a defensive posture, potential for political mischief
must be minimized.
1. Ground Rules. The ground rules which have been agreed upon with
the subcommittee may be summarized as follows:
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a. Opening Statement. No time limitations but statement
should be responsive to each of the formal inquiries
raised by H. Res. 1367 and H. Res. 1370.
b. Scope of Inquiry. The understanding has been reached
that the inquiry shall be limited by the scope of the two
formal resolutions of inquiry.
c. Time Limitations. Each of the nine members sitting with
the subcommittee shall have the opportunity to question
the President for two periods of five minutes each. Thus,
there will be a total of 90 minutes of questioning.
d. Television. Consent has been given to live television
coverage of the hearing.
2. Thoughts on ground rules. In my opinion, further consideration
should be given to the ground rules in the following respects:
a. Time Limits. If possible, the agreement reached on the
period for questioning should be reopened and substantially
reduced. Perhaps, a total of 1/2 hour to be controlled by and
divided between the chairman and ranking Republican.
Alternatively, only 5 minutes per member might be allowed
for a total of 45 minutes. Ninety minutes is simply too long.
b. Order of questioning. The order of questioning should
alternate from Democrat to Republican and form senior to
junior. The Democrats should not be allowed to exhaust
their time prior to the allotment of time to the Republicans.
C. Nixon-GSA Agreement. It should be clearly understood
that the tapes agreement is beyond the scope of this inquiry,
except to the extent that it might impact upon the grant of
the pardon.
d. Prior Executive's Discussions and Materials which are
presumptively privileged. It should be understood that
President Ford will not infringe upon any claim of Executive
Privilege which former President Nixon may want to assert
with regard to materials or conversations arising prior to
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August 9th. This position can be substantially strengthened
by a letter to Jack Miller, counsel to the former President,
inquiring as to whether he intends to assert a privilege on
behalf of the former President. Assuming Miller will not
consent to any waiver, documentation of this position will
then be available.
e.
Presumptively Privileged Discussions and Materials
Arising after August 9th Two ground rules should be
established in this regard:
(1) President Ford will not make available members of
the White House staff for further examination on the
subject of the pardon; and
(2) Formal requests or demands for documents of the
Ford Presidency will not be complied with unless of
a public nature - - this is not to say, however, that
such materials may not be made available pursuant
to informal requests by the committee. The point in
this latter regard is that release in this context is
a Presidential prerogative.
f.
Role of the Chairman. Chairman Hungate should assume
the following responsibilities:
(1) Channel all appropriate informal requests for materials
to the White House;
(2) Strictly enforce time limitations and ground rules on
relevancy and privilege; and
(3) Rule clearly repetitious questions out of order.
3. Need For Certainty. If equitable ground rules for this hearing
cannot be firmly established prior to Wednesday, the President
might give thought to postponing his appearance until an agreement
reflecting a good faith effort on both sides can be reached.
is
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B. Individuals Involved In Grant of Pardon.
1.
Who were the individuals representing Mr. Nixon during the
course of any pardon discussions or negotiations?
a. What was the scope of authority of Mr. Miller, counsel
of record so to speak, in the pardon discussions?
b. Was Fred Buzhardt involved in any way?
c.
Was Alexander Haig involved in any way?
d. When did Messrs. Buzhardt and Haig leave the White
House payroll?
e. Was any representative of H.R. Haldeman privy to the
discussions?
f. Did Mr. St. Clair represent Mr. Nixon in any way relative
to the pardon?
2.
Who were the individuals representing your interests during
the course of any pardon discussions or negotiations?
a.
Did anyone other than Messrs. Marsh, Hartmann, Buchen
and Becker, represent you in any way during these
discussions?
b.
How did you happen to enlist the assistance of Mr. Becker?
C.
Were you aware of the fact that Mr. Becker is currently
under investigation for income tax evasion by the
Department of Justice?
d.
Was Mr. Becker paid for his efforts?
e.
Does Mr. Becker currently provide you any assistance,
legal or otherwise?
f.
With the nation's finest and most highly respected lawyers
and the Department of Justice presumably available to assist
you in this regard, why were they not utilized?
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so
Do you have any personal logs or minutes of your
meetings with individuals representing your interests
in this regard?
h. May the subcommittee review these materials?
i. Would you object to our receiving testimony from those
who assisted you on the pardon?
C. Considerations In Granting Pardon.
1. Did you have any hard evidence of the frailty of Mr. Nixon's
physical or mental health?
2. With the benefit of hindsight, what is your view of the pardon
today in terms of healing the nation's wounds?
3.
What factors under consideration by you with respect to the
pardon of Mr. Nixon would not impact equally on other
Watergate defendants?
4. Since in ordinary legal proceedings the leading member of a
criminal group is most actively prosecuted, what prompted
you to turn this notion on its head?
5. Prior to granting the pardon, did you consider the impact it
could have on the independence of the Special Prosecutor and
any pending criminal matters?
6. Did you consider discussing these matters with the Congressional
group referred to in Mr. Jaworski's charter?
7. Do you consider Mr. Nixon's statement upon acceptance of the
pardon to constitute an appropriate "statement of contrition"?
8. Did you make any notes or review any staff recommendations
as you formulated your views on the necessity for a pardon?
9.
May the subcommittee review these materials?
GERALD
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D. Timing and Secrecy of Pardon.
1. In terms of setting "Watergate" to rest, might it not have
been preferable to take your case to the people prior to
the grant of the pardon?
2. Didn't your precipitous action reduce the possibility of ever
achieving a complete record of "Watergate" which presumably
is in the public interest?
3. Why wasn't a complete record of the former President's
involvement in the cover-up made public prior to the grant of
the pardon as was done prior to the acceptance of a guilty
plea on behalf of former Vice President Agnew?
4. You have indicated that your Administration would be one of
"openness" -- how does the handling of the pardon square with
that notion?
5. Did you feel any pressure to grant the pardon from any former
Nixon aides?
6. Did you feel any pressure from any Congressional sources to
grant the pardon?
7. In terms of public reaction, did you consider that your actions
could be interpreted as a quid pro quo for assuming the Presidency?
E. Relationship of Pardon to Tapes Agreement.
1. Do you have any reason to believe that any conversations which
you may have had with the former President during your service
in the House or as Vice President were secretly tape recorded?
2. Did you meet frequently with him in the Oval Office, the EOB
or the Cabinet Room where secret recording devices were
installed?
3. Were many of these conversations of a confidential nature?
4. Did many of these conversations involve only yourself and
the former President?
GERNED
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5.
Were any White House aides, other than H. R. Haldeman
or John Ehrlichman frequently in attendance at these meetings?
6. After the existence of the tape recording devices became known,
did you ever discuss with anyone their possible content as it
might reflect on you?
7. Has anyone ever expressed to you their fears regarding the
content of the tapes as they might affect you or others close
to you?
8. Is anyone other than the former President and Mr. Haldeman
aware of the content of the tapes as they may reflect on you?
9. Did Mr. Haldeman, to your knowledge, ever attempt to exercise
any leverage over the former President or yourself with respect
to the tapes in order to secure a pardon?
10. Can you confirm or deny published reports to the effect that,
during the course of hearings on your nomination to be Vice
President, Mr. Buzhardt reviewed tapes covering certain
days when you had met with the former President?
11. Did any of your representatives participate in the development
of the Nixon-GSA tapes agreement with representatives of GSA
or Mr. Nixon?
12. Did you give these individuals any directives?
13. Paragraph 10 of the tapes agreement provides you with access to
the tapes -- how did this provision find its way into the agreement?
14. The same paragraph provides Mr. Nixon with access -- however,
no one else can access these materials. Does this strike you
as salutary?
15. What arrangements are being made to ensure the security
of the tapes?
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GERALD
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