With Liberty and Justice for Some Read Online Free PDF Page A

founders—or anyone who genuinely believed in the rule of law—claiming that “public policy often took precedence” over justice. To believe that public policy considerations, as assessed by a particular individual, override the rule of law is simply a euphemism for declaring that the rule of law is dead and the rule of men reigns supreme. Yet starting with Ford, such explicit repudiations of the rule of law have become an increasingly common and perfectly respectable view.
    Notably, there were a handful of influential people at the time of the Watergate scandal, including some in government, who vehemently objected to Ford’s pardon. They pointed out that the pardon subverted the central American premise that all are equal before the law, and warned that immunizing Nixon would create a dangerous precedent. Ford’s own press secretary, Jerald terHorst, resigned in protest a mere thirty days after being appointed. In his September 8, 1974, resignation letter, terHorst condemned the two-tiered system of justice he believed the pardons would entrench.
    As your spokesman, I do not know how I could credibly defend that action in the absence of a like decision to grant absolute pardon to the young men who evaded Vietnam military service as a matter of conscience and the absence of pardons for former aides and associates of Mr. Nixon who have been charged with crimes—and imprisoned—stemming from the same Watergate situation….
These are also men whose reputations and families have been grievously injured. Try as I can, it is impossible to conclude that the former president is more deserving of mercy than persons of lesser station in life whose offenses have had far less effect on our national wellbeing.
     
    TerHorst’s view was shared by large numbers of ordinary Americans. Hersh reports that “seventeen thousand telegrams were sent to the White House within two days, running at ‘about six to one,’ by a White House spokesman’s count, against the pardon.” And a handful of liberal Democrats, including Elizabeth Holtzman, Bella Abzug, and John Conyers, demanded an investigation into Ford’s conduct. But theirs was clearly the minority view in America’s most influential circles.
    Instead, appeals to empathy were deployed to defend the pardon. As Time reported in October 1974:
    Some of the members of Congress were worried about what Ford’s pardoning of Nixon did to the nation’s standards of equality under the law. California’s Don Edwards, a liberal Democrat, wondered how Ford would explain American justice to his students if he were a high school teacher in Watts or Harlem. Ford’s reply was that Nixon was the only President to resign in shame and disgrace; that, he implied, was punishment enough. South Carolina’s James R. Mann, a conservative Democrat, asked if Ford agreed with “the maxim that the law is no respecter of persons.” Ford’s reply: “Certainly it should be.” The gentle, courtly Mann seemed about to follow up the question but hesitated and then said softly, “Thank you, Mr. President.”
     
    Needless to say, the empathy Ford expressed for Nixon is rarely invoked as a means of arguing for leniency, let alone immunity, for ordinary Americans. That’s because Ford’s call for “empathy” is merely disguised aristocratic privilege.
    The Precedent Exploited
     
    The precedent established by the Nixon pardon would be exploited little more than a decade later, when another group of high-level offenders—the Iran-Contra criminals of the Ronald Reagan and George H. W. Bush administrations—were seeking immunity from prosecution. Sure enough, they got it: White House officials who clearly and knowingly broke the law, and then deliberately lied to Congress about what they had done (also a felony), were systematically protected from any consequences for their crimes.
    The Iran-Contra scandal erupted in 1986, when it was revealed that the Reagan administration had sold arms—anti-tank