The pardon power entrusted to the President under the Constitution of the United States has a long history and rests on precedents going back centuries before our Constitution was drafted and adopted. The power has been used sometimes as Alexander Hamilton saw its purpose: "In seasons of insurrection... when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall."1 Other times it has been applied to one person as "an act of grace... which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed."2 When a pardon is granted, it also represents "the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."3 However, the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders.4 Thus, I am firm in my conviction that as President I did have the authority to proclaim a pardon for the former President when I did.
1 The Federalist No. 74, at 79 (Central Law Journal ed. 1914) (A. Hamilton).
2Marshall, C. J. in United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).
3Biddle v. Perovich, 247 U.S. 480, 486 (1927).
4 Ex Parte Garland, 4 Wall. 333, 380 (1867); Burdick v. United States, 236 U.S. 79 (1915).
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General Haig wanted my views on the various courses of action as well as my attitude on the options of resignation. However, he indicated he was not advocating any of the options. I inquired as to what was the President's pardon power, and he answered that it was his understanding from a White House lawyer that a President did have the authority to grant a pardon even before any criminal action had been taken against an individual, but, obviously, he was in no position to have any opinion on a matter of law.
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The second question in the resolution asks whether Alexander Haig referred to or discussed a pardon with Richard M. Nixon or his representatives at any time during the week of August 4, 1974, or any subsequent time. My answer to that question is: "not to my knowledge." If any such discussions did occur, they could not have been a factor in my decision to grant the pardon when I did because I was not aware of them.
Questions three and four of H. Res. 1367 deal with the first and all subsequent references to, or discussions of, a pardon for Richard M. Nixon, with him or any of his representatives or aides. I have already described at length what discussions took place on August 1 and 2, 1974, and how these discussions brought no recommendations or commitments whatsoever on my part. These were the only discussions related to questions three and four before I became President, but question four relates also to subsequent discussions.
At no time after I became President on August 9, 1974, was the subject of a pardon for Richard M. Nixon raised by the former President or by anyone representing him. Also, no one on my staff brought up the subject until the day before my first press conference on August 28, 1974. At that time, I was advised that questions on the subject might be raised by media reporters at the press conference.
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Shortly afterwards I became greatly concerned that if Mr. Nixon's prosecution and trial were prolonged, the passions generated over a long period of time would seriously disrupt the healing of our country from the wounds of the past. I could see that the new Administration could not be effective if it had to operate in the atmosphere of having a former President under prosecution and criminal trial. Each step-along the way, I was deeply concerned, would become a public spectacle and the topic of wide public debate and controversy.
As I have before stated publicly, these concerns led me to ask from my own legal counsel what my full right of pardon was under the Constitution in this situation and from the Special Prosecutor what criminal actions, if any, were likely to be brought against the former President, and how long his prosecution and trial would take.
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I did consult with my Counsel, Philip Buchen, with Benton Becker, and with my Counsellor, John Marsh, who is also an attorney. Outside of these men, serving at the time on my immediate staff, I consulted with no other attorneys or professors of law for facts or legal authorities bearing on my decision to grant a pardon to the former President.
