How Richard Nixon's pardon 50 years ago provides fuel for Donald Trump's legal fight

WASHINGTON - Fifty years ago, newly installed President Gerald Ford simply got tired of questions about the legal fate of resigned predecessor Richard Nixon.

So, on Sept. 8, 1974, Ford went ahead and pardoned Nixon - triggering a political and legal earthquake that still reverberates a half-century later in the age of Donald Trump.

In the eyes of some legal analysts, the fact that Nixon never stood trial over allegations related to the Watergate scandal emboldened future presidents to test the system, especially the maverick Trump.

"I think that if Richard Nixon had been convicted of a crime, it may have deterred his successors from pushing the limits of legality," said Barb McQuade, a former Obama-era federal prosecutor and now a law professor at the University of Michigan.

The Ford pardon of Nixon also played a role in the recent Supreme Court decision granting presidents immunity from prosecution for actions that are deemed "official." Said McQuade: "Now we find ourselves in a world where it really is the case that when the president does it, at least within the scope of official conduct, it’s not illegal."

As Trump faces sentencing later this year in the New York hush money case - and 2020 election trials still pending - the Ford pardon of Nixon will continue to hover of American law and politics.

"We haven't heard the last of the Ford pardon, that's for sure," said Ford biographer Richard North Smith.

A "full, free, and absolute pardon"

Questions dogged Ford right after he took office on Aug. 9, 1974, the morning after Nixon announced he would resign the presidency.

Ford, eager to put Nixon and Watergate behind him and the country, decided to move toward a pardon even though Nixon had not been formally indicted. "You can't pull off a bandage slowly," Ford said back then.

Without the pardon, Nixon would have been put on trial for obstruction justice charges. Allegations against him stemmed from the attempted cover-up of Nixon campaign "dirty tricks" operations, including the 1972 break-in at Democratic Party headquarters in the Watergate building in Washington, D.C.

Ford questioned whether Nixon could receive a fair trial, and feared that a criminal indictment and jury proceedings surrounding an ex-president would inflame and divide large swaths of the country. As it turned out, that prospect was put off for decades, until Trump's trial in New York City in 2024.

"Months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury," Ford said in granting a "full, free, and absolute pardon" to his predecessor.

The announcement, made on a Sunday morning, stunned the political world.

Critics, including some Republicans, said Ford appeared more worried that a Nixon trial would drag down his own re-election bid. They also questioned whether Ford cut some kind of "deal" with Nixon, a suggestion the new president vehemently denied in testimony before Congress.

Then-Sen. Walter Mondale, D-Minn., a future vice president and Democratic presidential nominee, said "we don't even know what acts by Mr. Nixon the president is pardoning," and may never know.

“Now, without the help of the legal process, we may never know the full dimensions of Mr. Nixon's complicity in the worst political scandal in American history, even though the pardon itself is further evidence of his direct involvement,” Mondale said at the time.

Ford's first press secretary, Jerald terHorst, resigned over the pardon. It also contributed to Ford's loss of the 1976 presidential election to Democratic former Georgia Gov. Jimmy Carter.

Over the years, however, Ford began hearing praise for the pardon. In 2001, he received the John F. Kennedy Profile in Courage Award.

"President Ford presided over this nation during one of its darkest hours, and in an effort to heal a divided nation, he made a very difficult decision that many believe may have cost him the presidency," said the announcement from Caroline Kennedy, president of the Kennedy Library Foundation.

Ford had also long believed that, in accepting the pardon, Nixon acknowledged his guilt.

The pardon and Trump

The Trump era has revived criticism of the Ford pardon, as Trump prepares to be sentenced soon in the hush money case.

McQuade, author of "Attack from Within: How Disinformation Is Sabotaging America," said "we will never know how history may have unfolded" if Ford had not pardoned Nixon and he had stood trial for Watergate.

Even so, she said, "it seems safe to assume that President Trump felt emboldened by the lack of accountability for allegedly criminal conduct."

When Ford issued his pardon, he said Nixon's acceptance of it meant he was acknowledging guilt. That interpretation is now under question because of the Supreme Court decision granting presidents immunity from prosecution for "official" acts.

As the high court considered the case, various attorneys argued that the pardon of Nixon proved that presidents can be prosecuted for actions that are deemed to be criminal. Otherwise, they said, a pardon would have been unnecessary.

In her dissenting opinion in the immunity case, Justice Sonia Sotomayor cited the Ford precedent in writing that "our country’s history also points to an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts."

The court's ruling in the Trump case, she said, could make a president a “king above the law."

Legal analyst Jeffrey Toobin, author of a forthcoming book "The Pardon: Nixon, Ford and the Politics of Presidential Mercy," said the Supreme Court immunity decision may well insulate future presidents from accountability. "The whole idea behind the pardon was that ex-presidents could be prosecuted," Toobin said. "Now that's an open question."

Bradley P. Moss, an attorney who specializes in national security issues, said that before the ruling, "I always viewed the Ford pardon as a reminder that no one, not even the president, is above the law."

Now? "The legacy of the Ford pardon is that the legal premise under which the public operated at that time was antiquated and, according to the Supreme Court, legally erroneous," Moss said.

Nixon once famously said that "when the president does it, that means that it is not illegal," Moss noted.

"And as Donald Trump managed to prove with his legal victory at the Supreme Court," he said, "Richard Nixon was apparently correct as a matter of law, and the Ford pardon was never necessary."

A continuing legacy

If Trump wins re-election to the presidency, analysts said, Trump will be in a position to dismiss or otherwise avoid pending legal actions against him.

If he loses the election, some pundits have suggested that President Joe Biden - or President Kamala Harris - might pardon Trump in the name of national unity.

Smith, the author of "An Ordinary Man: The Surprising Life and Historic Presidency of Gerald R. Ford," said the nation's 38th president did what he thought was right with respect to the pardon.

"He certainly hoped that it would remain unique in American history," Smith said. "He certainly never expected the situation that we find ourselves in now."

This article originally appeared on USA TODAY: How Richard Nixon's pardon has added fuel to Donald Trump's fight