Constitution Check: Could Richard Nixon Have Been Tried Successfully for a Crime?

Would President Richard Nixon have been convicted of a crime if he hadn't resigned his office in 1974 and received a subsequent pardon? Lyle Denniston takes a new look at the constitutionality of prosecuting a president.

The statements at issue:

"The Watergate that we wrote about in The Washington Post from 1972 to 1974 is not Watergate as we know it today. It was only a glimpse into something much worse. By the time he was forced to resign, Nixon had turned his White House, to a remarkable extent, into a criminal enterprise."

- Carl Bernstein and Bob Woodward, former Washington Post reporters famous for their investigative reporting into the Watergate scandal, in a lengthy article in The Post on June 10, "The 5 wars of Watergate," marking the 40th anniversary on June 17 of the hotel break-in that originated the scandal."

"In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would be even more inconclusive with respect to those charges arising out of the period of his Presidency..."

- President Gerald Ford, on September 8, 1974, in an address to the nation explaining his reasons for pardoning President Nixon "for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period" of his Presidency.

We checked the Constitution, and...

Under the Constitution's Article I, Sections 2 and 3, and Article II, Section 4, President Richard M. Nixon might well have been convicted at an impeachment trial for "high crimes and misdemeanors," and, indeed, the very real threat of just such a verdict in the Senate probably led him to resign in August 1974. But the Constitution still would have allowed a federal grand jury to go forward and levy criminal charges against him.

President Ford's pardon ended that prospect.

But with the 40th anniversary of the Watergate break-in coming next Sunday, the reappearance in the Washington Post of the celebrated joint byline of Bernstein and Woodward, and their telling of how much more is now known about the misdeeds inside the Nixon White House, a look into a potential trial of Nixon in a criminal court may not be simply historical fiction.

All of the evidence that history has compiled since the Nixon resignation probably would not have been known to federal prosecutors, had they persuaded a grand jury to indict Nixon while he was still in the White House, or after he had resigned. One may suppose, though, that they had enough evidence to pursue charges. And a criminal trial can have a civic value as a kind of cathartic event, if it is carried out in a sober and solemn way.

Assuming that at least some of the potential prosecution team had wanted to go forward, and even assuming that all of what is now known had been in prosecutors' files at the time, a trial would have been a fiercely challenging undertaking, and might never have produced a guilty verdict -- or at least not one that would have withstood an appeal.

Before President Ford scuttled any prosecution with the "absolute pardon," he had his legal aides go over the prospects of what might unfold in a criminal case.

As Ford told the nation at the time, one of the most significant issues surrounding a trial for Nixon would be whether a fair and impartial jury could be assembled anywhere in the country, given the kind of publicity generated by the scandal.

The Supreme Court has said that moving a trial to a place where publicity about a crime may not have influenced a potential jury, or where publicity may have died down, is an appropriate alternative, and so is at least a temporary delay. But it also has stressed that charges may have to be dismissed altogether if a trial with a fair jury cannot be started within a reasonable time, because the Sixth Amendment does guarantee a "speedy trial." Ford also mentioned that potential timing problem.

Ford offered another, particularly provocative, reason why he was prepared to head off a trial. He said that Nixon might be found to have been denied "due process." It is difficult, now, to know what that meant, since the concept behind the Due Process Clause is that government may not act arbitrarily, and a person on trial in a criminal case is surrounded by the multiple protections of the Bill of Rights precisely to eliminate arbitrariness.

Did Ford mean that singling out Nixon for prosecution would have been arbitrary? In fact, he would not have been singled out: prosecution of several of his aides actually went forward successfully. Perhaps Ford meant that the mere fact of using criminal process against a President, when the remedy of impeachment had been available, would have seemed arbitrary. And it might have meant that, as he also said, Richard Nixon "and his loved ones have suffered enough."

Perhaps more history needs to unfold before Americans, in general, are prepared to conclude (as Bernstein and Woodward now seem to have concluded) that Nixon was, indeed, guilty of very real crimes -- even though there was never a trial, in the Senate or in a courtroom.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.

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