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This file contains material relating to the history and background of Nixon pardon; Robert Hartmann; Phil Buchen; U.S. v. Burdick, U.S. v. Garland, San Clemente.
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1126646
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Nixon Pardon - Becker's Memorandum
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Nixon Pardon - Becker's Memorandum
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This file contains material relating to the history and background of Nixon pardon; Robert Hartmann; Phil Buchen; U.S. v. Burdick, U.S. v. Garland, San Clemente.
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Benton L. Becker Papers
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Nixon, Richard M. (Richard Milhous), 1913-1994
Nixon papers
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1974-09-30
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1974
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1974-09-01
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9
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1974
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The original documents are located in Box 2, folder "Nixon Pardon - Becker's
Memorandum" of the Benton L. Becker Papers 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. Benton Becker 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States of America his copyrights in all of his unpublished writings in National Archives collections.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
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
file: Bentan Beeker Raper
box 2
AND INII RECORDS COMMISSIONS
Gerald R. Ford Library
folder: Niran Panden - Becker's Memarander
1000 Beal Avenue Ann Arbor, Michigan 48109-2114
1985
Date
: June 9, 1992
Reply to: David Horrocks RAA
The
GERALD
R.
FORD
Subject : Identification of "The Bird"
LIBRARY
To
:
The File
On this date, John Robert Greene of Cazenovia College called me
to say he had just spoken by telephone with Benton Becker. He had
asked Becker to identify "The Bird," mentioned in a memoir document
in Becker's papers.
Becker said "The Bird" was Henry Kissinger, and the term
derives from the Secret Service codewords for Kissinger, e.g. "Eagle,"
which all had to do with flight.
Becker told Greene that he did not cite Kissinger by name
because, at the time of writing, he did not know where the document
would be going.
I asked Greene if I had his permission to place this explanation in
the Becker Papers, for future researchers. He said yes.
A Presidential Library Administered by the National Archives and Records Administration
Digitized from Box 2 of the Benton Becker Papers at the Gerald R. Ford Presidential Library
296.
MEMORANDUM
30
September 9, 1974
FROM: BENTON L. BECKER
RE:
HISTORY AND BACKGROUND OF NIXON PARDON
Gerald R. Ford was sworn in as President of the
United States on August 9, 1974, at 12:00 Noon. Early in
the afternoon on the day before President Ford's swearing
in, I received a call from then Vice President Ford's
Chief of Staff, Robert Hartmann, requesting rather urgently
that I meet with the Vice President.
I arrived at the Vice President's Executive Office
Building office and met with Mr. Ford and Bob Hartmann.
The Vice Presidential suite of offices were aglow with
activities. Transition team members were meeting, an
"inaugural address was being prepared for the following day,
personnel changes were being considered, etc. Hartmann and
Ford advised that they had received information that Nixon's
staff members were stuffing an inordinately high amount of
papers in their "burn bags". These bags later were macerated
chemically. Vice President Ford was concerned with the
security of papers and records from the Nixon Administration
and asked me to look into and investigate the matter from
top to bottom. I agreed.
( 10-0
Memorandum
- 2 -
September 9, 1974
During the course of the conversation I volunteered to
the Vice President a status report on what had become to be
known as the "Kline matters". The status at that time was
that 8 of the 9 allegations of improper conduct made about me
by Kline and Baer had been fully and completely investigated
and resolved in my favor. Lingering, although the investiga-
tive process was concluded and the reviewing of that process
was undertaken, was the 9th matter in which Kline alleged a
$10,000 kickback to me as part of a tax fraud scheme. The
investigation of that matter consumed an inordiante period
of time in that the Assistant United States Attorney deemed
it prudent to determine the source of each and every deposit
and expenditure in my and my wife's bank accounts for the 12
month period. I have been informally told that this matter
too would be resolved in my favor as there never having
been such a kickback, none was found.
In the ensuing weeks, which at sometime perhaps would
be the subject of other memoranda, while assisting in transi-
tion, I worked on the problem created by Nixon records and
papers, President Ford's selection of Nelson Rockefeller as
Vice President and his screening of other potential candidates
and generally assisted Philip Buchen as his right-hand man.
By the week of August 26, 1974, the following informa-
tion was known relating to the Nixon papers:
TOTO
Memorandum
- 3 -
September 9, 1974
1. Approximately 46 million pieces of paper and 950
reels of tape existed which traditionally were property of
the former President. None of which had been removed from
the White House.
2. That Richard Nixon had been served with a subpoena
as a witness in U. S. vs. Mitchell, et al., commencing
September 30, 1974, and that it was absolutely necessary for
him to review his records and tapes before that appearance
in order to be adequately prepared to testify.
3. The Ford Administration had been served with at
least two restraining orders (in the Wounded Knee criminal
case and the Network Anti-Trust suit) restraining any trans-
mittal of any Nixon records from the White House to any other
place.
4. Various production subpoenas had been issued to
the White House in numerous civil suits calling for produc-
tion of tapes and other records relating to the matters
under litigation in each of the suits.
5. The opinion of the Attorney General sought and
received by President Ford concluded that Richard Nixon was
the legal owner of the records.
The problem presented by the tapes and records was
how to satisfy Nixon's immediate need for a search of the
records, how to satisfy the outstanding production subpoenas
for the records without employing Ford White House staff
for the task. Or, alternatively, how to insure Richard
GEBATO FORD
Memorandum
- 4 -
September 9, 1974
Nixon's ability to produce the requested items in the subpoena
while at the same time prevent destruction and/or deletion of
the records in light of the 18 minute gap.
The problem was defineable and it appeared unsolvable.
And, as time progressed, packaging, boxing of the records
continued and storage of same commenced on the Fourth Floor
of the Executive Office Building until such time as the
Secret Service in a confidential memorandum expressed real
concern as to the strength of the Fourth Floor of the E.O.B.
to hold these boxes. As of the time of writing this memorandum,
literally tens of thousands of boxes rest on the squeaking
floors of the E.O.B. Numerous alternative approaches were
considered. Among them, an interpleader giving all the
records to the Court. This was discarded as unworkable and
perhaps illegal in light of the Attorney General's opinion
that Richard Nixon was the legal owner. Ultimately, early
in the week of August 26th some light in the tunnel surfaced
when Richard Nixon announced that he had obtained Herbert J.
Miller as his counsel. This action by Nixon at the very
least opened an avenue of communication on the question of
records between Phil Buchen and myself and the Former
President which had not existed before.
GREAT Tollo DISPART
Memorandum
- 5 -
September 13, 1974
Commencing during the week of August 26, 1974, meetings
occurred between Buchen, Miller and myself. The purpose of
these meetings were to define the mutual problems relating to
tapes and records of the former President and to conceptually
consider feasible solutions.
On Thursday, August 29th, Mr. Buchen advised me pri-
vaetly that he had had a conversation with the President in
the company of Haig, Hartmann and the Bird, wherein the
President indicated a disposition to move on a Presidential
Pardon. All parties present were sworn to secrecy by the
President. The President instructed Buchen to include me
among the four and to explore, among other things, the
legal feasibility of such an action at this time.
Throughout the remainder of that weekend, including
Monday of Labor Day, I studied the law with respect to pardons.
This work was commenced at my law office in Washington, the
law library at my law school and at the Supreme Court law
library. The issues developed acquiring resolution were two.
They were: (1) Whether a President was Constitutionally
empowered to issue a pardon before formal accusation, and
(2) whether a pardon was valid if not specific in its
grant of grace, i.e., whether a specific statutory crime
need be named from which the recipient was pardoned.
I concluded on the basis of the Burdick case, the
Garland case, Blackstone's writings and an opinion from the
Attorney General during President Hughs' presidency that
079036
neither issue was an impediment against pardon.
Memorandum
- 6 -
September 13, 1974
Monday
On September γ. 1974, Mr. Buchen and I met
with the President and advised as to our findings. The
President appeared to me at that time to no longer be con-
sidering the possibility of pardon but rather had made up
his mind, that if he could do it, he would. Buchen and I
continued to meet throughout the remainder of that day and
on September 4th and 5th met with Jack Miller. During the
course of the meeting on September 4th, Buchen advised
Miller that the President was giving consideration to a pardon.
This precipitated movement to the question of tapes
and records which had been on dead center for the past month.
The Buchen/Becker concept of/Presidential Deed of Gift of the
Presidential papers to GSA, while retaining ownership with
President Nixon and restricting access to the general public
under the Deed of Gift, was expressed. Miller prepared a
draft letter from President Nixon to Arthur Sampson, Admini-
strator of GSA, which attempted to incorporate the concept
discussed by Buchen and myself.
Simultaneously, the Attorney General had informally
advised Buchen that it was his, the Attorney General's,
opinion, that the records and tapes of the Nixon Administration
were the property of Richard Nixon.
During the course of the September 4th meeting with
Miller when the concept of pardon was disclosed, Miller
SERALD
Memorandum
- 7 -
September 13, 1974
advised that it was his firm belief that President Nixon
should, if such pardon were issued, offer a statement of
admission to his Watergate involvement. Miller was quick
to add, however, that the scant meetings to date with
President Nixon demonstrated to him that the President's
ability for objective mental recollection on that subject
were poor. Buchen and I concurred on the question of a
statement with Miller but hastened to add that should a
pardon be granted, President Ford would not impose such a
statement as a pre-condition.
On September 5th, Miller, Buchen and I again met, as
we had in the past, in Buchen's hotel room in the Jefferson
Hotel in Washington. The Miller draft of the Nixon/Sampson
letter was discussed and found to be lacking in achieving
the objectives presented earlier in this Memorandum. Miller
advised that in order to consummate the matter of records
and tapes, he deemed it necessary to meet in person with his
client and suggested that one of the two of us attend that
meeting. A flight was planned that night for Miller and me
to San Clemente to meet with the President Nixon.
Before taking off I met with President Ford at
approximately 4:00 P.M. on September 5th in the company of
Haig and Buchen. The President was pleased that we had made
progress on the tape and records resolution and pleased
DEPART A FORD LIBRARY
Memorandum
- 8 -
September 13, 1974
that Miller had indicated to us that his client was willing to
make a statement. That conversation dealt largely with the
tapes and records disposition.
Near the end of the conversation, the President
advised that the Bird had expressed concern for himself and
others with regard to a public disclosure of all tapes.
Althrough not personally incriminating, those tapes were
potentially embarrassing to individuals remaining in Washington,
after the Nixon resignation. The President instructed me
that in my negotiations with President Nixon, at the very
least, prevent public disclosure of the tapes for 50 years.
That was counter to Buchen's and my negotiations with Miller
to date and represented a major impediment, in my judgment,
to a full resolution to the records and tapes problem.
The President did not indicate that a satisfactory
resolution of same was a pre-condition of pardon.
On the flight to San Clemente that evening with
Miller, I advised of the necessity for tight security of
the tapes. Miller indicated that he felt it could abort
any resolution to the records and tapes.
On the previous Wednesday, Buchen and I had prepared
a draft pardon which we had disclosed to the President at
our Thursday meeting. I showed Miller a copy of the draft
indicating that this was the type of pardon that President
Ford was considering granting. No commitment was made
however.
FORM LIBRARY SEALT
Memorandum
- 9 -
September 13, 1974
We arrived at El Toro Air Force Base near San Clemente
at Midnight September 5th. I was still on Washington time
which was 3:00 A.M. and was quite exhausted. Nonetheless we
proceeded directly to the compound where I had the pleasure
of meeting for the first time, Mr. Ronald Zeigler.
Ziegler had, of course, been briefed by Miller of my
anticipated arrival. He knew of the personal relationship
between GRF and myself and that a pardon was not a
fatte
complete. I learned later, what I had suspected at the time,
that Ziegler had had telephone contact with General Haig
regarding GRF's position on pardon, GRF's reliance on me and
my report to him upon my return to D. C. which could "tip"
the decision either way and GRF's position of not imposing a
statement of contrition upon President Nixon before granting,
if to be granted at all, the Pardon. Armed with what he
apparently considered to be "inside" information, Ziegler
immediately attempted to seize the initiative and "upperhand"
in the negotiations. Bill Casselman had warned me of the
deceptive Mr. Ziegler, yet I was still somewhat surprised
by his opening gambit. "I can tell you right now," he
announced boldly, demonstrating that he, not Jack Miller,
was in charge of the negotiations, "that President Nixon
will make no statement of admission or complicity in return
for a pardon from Jerry Ford."
GERALD w FORD LIBILARK
Memorandum
- 10 -
September 27, 1974
This exclamation had a "ring" of having been rehearsed
and re-rehearsed in order to threatrically achieve just the
right authoritarian tone. The spitting reference to "Jerry
Ford" rather than President Ford and the dramatic sense of
timing, following, "Hello, Mr. Becker," all reinforced the
phonyness of his precipitous ploy.
I knew, and he knew, we had many oniter things to
argue about before addressing the "Nixon statement" question,
so I called the biggest bluff in my life. Quietly I remarked,
"Mr. Ziegler, I've never been to San Clemente before and for
that matter I don't work for the government, so...I'm a bit
confused. Can you tell me how to reach the Air Force pilot
that brought me here, so that I could instruct him to take me
back to Washington?" A long silence followed, at the conclu-
sion of which I added, "I'll also need a car and driver to
take me back to El Toro." Miller understood that I was pre-
pared to leave and sought to quiet the matter by commenting
that the lateness of the hour has made us all tired and we
could address that question in the morning, after other
questions had been resolved. It seemed to work, for Ziegler
mellowed.
For approximately one to one and a half hours there-
after we three spoke conceptually of the problem facing both
Presidents Ford and Nixon relating to the present status of
the papers and tapes created during the Nixon administration.
REGI LIBRARY
Memorandum
- 11 -
September 27, 1974
Ziegler appeared surprized at the depth of the problem, the
evidence of outstanding subpoenas for production and a feasible
manner to implement compliance. No substantive resolution
occurred that morning.
Approximately 2:00 A.M. California time, Miller and
I checked into the San Clemente Inn. San Clemente Inn is
approximately 15 minutes from the Compound and has the appear-
ance of a high class Holiday Inn, with the exception that
instead of J. Willard Marriott's pciture prominently hung the
San Clemente Inn appeared to be the Richard Nixon memorial
shrine. The lobby is replete with White House photographs
an
OF
of the former First Family, and one gets the impression that
#
a modern public relations effort of George Washington Slept
Here was undertaken by the Inn. Miller and I wandered into
the cocktail lounge and had two draft beers each while we
observed the Inn's patrons. In all, it is my judgment that
the Inn would not be recommended by Duncan Heinz.
Before going to sleep about 3:00 A.M. in the morning,
I called the desk and asked for a 5:30 A.M. call. So I
enjoyed a 2-1/2 hour slumber. "At 5:30 I called Washington,
8:30 D. C. time, and spoke with Phil Buchen. I advised Phil
of the thrust of the meeting the night before and of Mr.
Ziegler's charm. During the course of that phone call Mr.
Buchen advised of a tentative schedule, calling for a pardon
announcement on Sunday afternoon, subject to President Ford's
ENVORT FOR
Memorandum
- 12 -
September 27, 1974
final concurrence upon my return. Buchen and I reaffirmed
our position that while a statement of contrition was not a
precondition to pardon, it would be both proper and helpful
for pardon acceptance to both President Ford and President
Nixon.
After a leisurely shower and a review of my records,
I unpacked and prepared to breakfast with Jack Miller. My
wife, who had packed rather hastily for the trip, had
included a blue and white striped, cuffed shirt which I put
on. No cuff links were packed with it. And so I commenced
this momentous day negotiating with the former President on
behalf of a present President with paper clips on my cuffs.
It gave me a bit of a common touch.
San Clemente Inn has a large breakfast bar where
Miller and I sat. We had not been seated long before an
individual identifying himself as a representative from the
Los Angeles Times approached Miller and asked what he was
doing there and who was Mr. Becker. I politely excused
myself and returned to breakfast after he had left. Miller
advised that he believed the desk clerk at the Inn reports
to the local press his comings and goings to California.
I later learned that at 2:00 P.M. in Washington on
that very day the reporter had connected an association
between my name and President Ford's and approached the
then Press Secretary, Gerald terHorst, and inquired as to
the reason for my being in San Clemente. terHorst, who had
Memorandum
- 13 -
September 27, 1974
not been advised in advance ofthe contemplated pardon, was
told by Phil Buchen that I was there to discuss a disposition
to the Nixon records and tapes. Consequently, no story was
printed in advance of the Sunday announcement. Later, terHorst
felt that because of that conversation and apparently others
he had had in the past with members of the press on other sub-
ject matter, he had lost his credibility with the Press Corps
and felt compelled to resign.
The meting in San Clemnete that day commenced immedi-
ately after breakfast and took on the same structure as the
meeting of the evening before. The question of the Nixon
statement was not mentioned until Noon that day.
Sentence by sentence, the three of us meticulously
reviewed the Miller draft of the Nixon/Sampson letter. As
changes to that document were discussed and resolved, Miller
and Ziegler would leave the office in which we were meeting
and obtain President Nixon's authority for the change. Often
these meetings with President Nixon were brief, more frequently
they were lengthy. During the course of these periods I would
call Phil Buchen and report the status.
Mid-Afternoon, Ziegler commented to me that it must
be difficult to make a decent living in Washington as it was
obvious I could not afford a pair of cuff links. In typical
Ziegler charm, ke removed from his own arms a pair of
Presidential cuff links which he gave me. During the course
of this dictation, untypical of me, I banged on my desk and
broke one, to which my Secretary has claimed ownership.
GENALD MANURA
Memorandum
- 14 -
September 27, 1974
At Noon, without any prior reference to the subject
matter, Ziegler announced that on reflection he believed that
a statement was proper. He informed me that he had outlined
a statement, submitted it to a speech writer on the Nixon
staff and had before him what he believed to be the finished
Product. He asked me to read it and give him the benefit of
my thoughts. I did.
The statement spoke of the pressures of the Office
of the Presidency, the necessity for the reliance upon the
judgment and honesty of staff and the President's preoccupa-
tion with the Nation's international posture. It concluded
by acknowledging that President Nixon should have placed
less reliance and delegated less authority to staff members.
It said nothing more. Ron Ziegler did not have to inform me
of
authorship, it reeked with Zieglerisms and protesta-
tions of innocence.
Before speaking I reaffirmed to Ziegler and Miller
that a statement was not a precondition to pardon and then
gave him my opinion of the draft. That opinion was that
the proposed draft would be better substituted by no state-
ment whatsoever. I reminded him that 38 members of the
House Judiciary Committee differed with the opinions expressed
in that statement and that an estimated 67% of the population
of the Nation concurred with the Judiciary's findings. I
GERATO R FORD
Memorandum
- 15 - -
September 27, 1974
reminded him that the documented evidence introduced before
the Judiciary Committee contradicted the statement and con-
cluded by stating that in my judgment the statement was an
invitation to State prosecution should a Federal pardon be
granted. Miller concurred entirely with all my observations.
The speech writer was called in and Miller dictated the
thoughts to be contained in a second draft. I contributed
nothing to that dictation. We then proceeded in our discus-
sion of record and tape status. At approximately 3:00 what
I later learned was draft number 4 of the original Miller
proposed statment was submitted to me for comment. It was
far more candid then the original Ziegler draft but consider-
ably watered down from the outline of ideas that Miller had
dictated to the speech writer. It contained an acknowledge-
ment by the Former President of poor judgment. I concluded
once again that the statement was both absent of candor and
counterproductive and so advised Miller and Ziegler. When
asked how I would change it, for the 53rd time that day I
reaffirmed that a statement was not a precondition to pardon,
but suggested an acknowledgement of mistreatment of the so-
called Watergate Affair by President Nixon after it had
reached a judicial stage. Ultimately, the statement con-
tained language to the effect that, "I was wrong in not
dealing with Watergate more forthrightly and directly,
particularly when it reached a judicial stage".
GERALD
Memorandum
- 16 -
September 27, 1974
In my judgment, that statement represents an acknow-
ledgement of obstruction of justice by President Nixon. I
recall vividly on Saturday, September 7th, Genral Haig reading
the proposed statement and more particularly the quoted line
above and asking me if I had put a gun to President Nixon's
head. To Al Haig that acknowledgment by President Nixon
represented an admission far beyond any statement of contri-
tion or complicity that he had heretofore made.
When the kinks had been ironed out of the proposed
Nixon/Sampson transmittal letter and a satisfactory dis-
position to the records and tapes arrived at, I was invited
to meet President Nixon. The meeting occurred in an office
approximately 40 yards from Ziegler's office where we had
been meeting throughout the day.
I had never met or spoken with President Nixon before
and new the man physically only from my television and film
observations of him. Consequently, I was shocked when meeting
him in person.
As I entered the office he was seated behind a desk
in a room that was very sparsely adorned. He rose upon my
entrance and appeared to demonstrate a sense of nervousness
or almost fright at meeting me in person. I tried to relieve
that.
My first impression and the one that continues with
me to this day, was, unhappily, one of freakish grotesqueness.
GEHALD 8 FORD LIBRARY
Memorandum
- 17 -
September 27, 1974
His arms and body were so thin and frail as to project
an image of a head size disproportionate to a body. I am
told there is a condition known as Hyperextensive which
describes that appearance. Secondly, I met a man whom I
might more reasonably expect to meet at an octogenarian
nursing home. He was old. Had I never known of the man
before and met him for the first time, I would have estimated
his age to be 85.
The famous Nixon jowls were exaggerated, the face
highly wrinkled, the hair disheveled and the posture and
comportment all reminiscent of advanced age.
We spoke of the disposition that had been tentatively
agreed upon to the Nixon administration records, with particu-
lar reference to the implementation of Richard Nixon's access
to the records for memoir purposes during his lifetime. We
spoke of restricted access to others during Mr. Nixon's life-
time. At times he was alert, at times he appeared to drift.
I believe the entire experience was painful for him for at
times he attempted to change the subject and discuss trivia.
Inquiring if I ever played football and how I thought the
Redskins would do this year. On those occasions Iwould
return him to the subject at hand.
Before I left, a rather emotional experience occurred.
We had said goodbye and I was preparing to leave when he
said, Mr. Becker wait a moment please. The former President
THE W FORD
spoke to me then in the most pathetic, sad frame of mind
that I believe I have ever seen anyone in my life. He said,
Memorandum
- 18 -
September 27, 1974
"You have been so fair and thoughtful that I want to give
you something." He then looked about the sparse office, and
gesturing as he looked and raising both hands toward his
shoulders, said, "But I don't have anything any more. They
took it all away from me. Everything I had is gone. I
tried to get you a Presidential tie pin and cuff links with
my name on it, but I don't even have them any more. There's
nothing left from my Presidency. I asked Pat to get these,"
and He bent forward and opened the desk drawer and removed two
SMALL white boxes. "From my personal jewelry box. There
aren't any more of these in the world; you have got the last
one." With that the former Presidnet handed me the two boxes
which contained a Richard Nixon signature tie pin and Presi-
dential seal cuff links identical to the kind Ziegler had
given me earlier that day. I thanked him and took the boxes
noting that he was inches away from tears. On the flight
back to Washington I asked Miller if he had tried to locate
other cuff links and tie pins and Miller acknowledged that
he
had and was deeply disturbed that nothing was available
to give to me.
I returned to my home that night at approximately
5:00 A.M. Saturday morning and reported my trip to President
Ford that day. On Sunday at Noon, President Ford pardoned
Richard Nixon.
FORD
GERALD