Gerald Ford, Watergate, and Separation of Powers | BRI Scholar Talks

0:00 you know it may not seem like the right thing in the moment or my immediate gratification might not be served by this but the constitution gives me the authority to do you know what i think might be necessary for us in 40 years or 50 years um and so that pardon story is an interesting part i think it reaffirms the whole thing about the constitution sort of made jerry ford

0:20 sort of buttressed him i guess um even when his instincts would say you know i’m not i’m not i’m not going there [Music] hi this is tony williams senior fellow at bri and we’re pleased to bring you another episode of scholar talks for this episode we’re honored to have on scholar alex hyneman who is going to

0:42 talk about his book gerald ford and the separation of powers preserving the constitutional presidency in the post-watergate period as part of our american presidency series so the guiding question for this series is what are the constitutional powers and also the limits of the american presidency

1:03 and dr alex heinemann is an assistant professor of political science at the college of the holy cross where he teaches classes on american ideas and institutions constitutional law western political thought and american political development among others he is written for a variety of scholarly and popular publications and gerald ford

1:24 and the separation of powers is his first book and he’s done a lot of great programs for us uh the teachers love him uh and uh thank you so much for all you do alex and welcome thank you so much for having me tony this is really great to get a chance to talk with you a little bit yeah great thanks you know i i love this book right it’s kind of uh answering some questions i’ve had for a

1:45 long time about uh richard nixon and sort of what’s popularly called the imperial presidency and so when he resigns under under threat of impeachment and removal from office uh you know what happens to the president i you know some have suggested i think even a sort of an imperial congress or certainly a

2:06 resurgent congress in a lot of ways and so i love your book uh and really um pointed out a sort of a you know maybe a lesser known fury you know gerald ford we have sort of a superficial maybe understanding of him but how does he restore that that strong presidency uh after uh or you know while he’s in office after watergate

2:28 so so let’s jump into uh the questions here so so ford obviously as we just mentioned faces some profound challenges uh in the wake of richard nixon and his resignation after watergate there’s a lot of distrust of the presidency there’s a research in congress so what

2:48 challenges does he face to uh to head off if you will some of those attempts to limit presidential power in the wake of all that sure no i think this is a great way to great way to sort of start it i mean the striking thing you mentioned at the top is this is kind of an odd period in american history we look in many ways at the ford presidency as

3:09 sort of the coda on richard nixon and then then we move on and maybe we do a little bit of malaise and jimmy carter and then it’s off to morning in america and i’m always struck by that so the pardon happened in the first part of ford’s term and then a lot of scholars have forgotten about the other 895 days he was president um and so and so that’s

3:29 kind of what drew me to him i i thought and you mentioned about the imperial presidency we talk a lot about imperial presidents but i felt like this is kind of the the reverse case right in many ways jerry ford is an imperiled president what we know a lot about when presidents are trying to push the bounds of their

3:50 power but what about those cases when they’re kind of their backs are against the wall um to your question about the limits i think in the things that he confronted i mean when you line up the challenges i don’t think there’s another modern president that has more of them the war in vietnam although combat u.s combat forces were out of vietnam largely wound down in 72 under nixon but

4:12 we still had a lot of us you know power a lot of diplomats a lot of folks still on the ground in vietnam gerald ford had to figure out a way to wind that the rest of the way down you had an economy that was increasingly having real real problems stagflation was starting to go on the rise um you know oil jumped we’re in a bit of an

4:33 oil blip right now but during that time between in less than a year oil went from an imagine crazy time to think about now but a dollar seventy seven a barrel to ten dollars a barrel during that period so you have this massive increase in the economy and all of these things are sort of weighing down on the outside not not even thinking about richard nixon and

4:53 sort of the difficulties of what do you do with his co-conspirators is he going to be prosecuted now that he’s a private citizen all of these factors are sort of pushing on ford and then ford sort of steps in it by by doing the pardon too and so overnight his public approval ratings collapsed by about 40 percent i mean that’s a that’s a remarkable thing

5:14 it’s the largest drop in the gallup poll that they had had to that time and so he saps all of his political capital so by any of the measures that we used to look at the bully pulpit right and tr and kind of driving that personality popularity thing he has none of that and so i guess my argument at the end of the day is that

5:35 what he does is he puts on that vest of the constitution and says you know i may not be your favorite guy you may have a lot of skepticism i think i think steve knott talks about this in his book that doug brinkley mentions that he’s like more like a rotary guy like the local suburban dad that you want to have you know help out help clean out the gutters at the house um

5:55 and and nonetheless the constitution when he vests himself in that that makes him um able to survive and have a moderately you know decent presidency so great uh you know you mentioned uh exiting a war um rising oil prices stagflation falling gallup poll numbers uh sounds kind of like current events like

6:17 crazy in many ways i mean he’s like you know i mean all of these historical moments you have these odd parallels you’re like wait a second i think we’ve seen this movie before it’s the salah deja vu yeah right right so uh and you mentioned it already in passing but perhaps the best-known action of president ford was his pardon of nixon so can you tell us a little bit about that controversial decision and maybe

6:39 your assessment of it yeah no it was fascinating i mean it’s one of these things i think ford ford was a republican sort of a loyal republican for uh richard nixon for a while um and and kind of came to office in an odd way sort of spiro agnew was forced out in 73 in the same month so it was in the same

7:00 month as the saturday night mass or the saturday night massacre um and all of these other sort of weird events the arab and the arab uh israeli conflict was happening in october 73. so all of this stuff is moving um and ford’s sort of plopped into office so watergate kind of dominates his whole

7:20 vice presidential period and you see this weird kind of game where ford is trying to be a loyal republican on the one hand and he sort of smells a rat in terms of how the you know watergate’s starting to unravel by the time we get to you know mid mid june late july definitely when the supreme court decision comes down in 74

7:42 ford’s like this is clearly you know nixon’s clearly done i have to start preparing for for the vice presidency or for the presidency um to assume the presidency and then for about a month so ford comes into office the first part of august august 9th of 74 and then for that first month he’s just constantly dealing with questions from the press what do we do

8:04 with nixon how do we deal with you know all of the ongoing prosecution what are you doing about all the papers that are still there and ford i think personally became really tired of dealing with all that he said look we got this economic problem we got international events we have to do something to move nixon off the front page and i think that’s what motivated him to

8:26 to make me make the move and at the same time he knew it was he was he was going to be you know tying himself down so the striking thing to me is he said i have to do this that sense of duty i’ve got to move it off the front page so we can get on with things he bit the bullet did it only told five people that he was

8:47 thinking about it before it happened and sort of dropped it on the nation on a sunday morning which is like completely pr people would have a horror this is the horrible way to do this um and then he he he never regretted what he did but you could sense that he he always felt it was the right thing to do but at the same time there was a part of

9:08 him that was saddened by the fact that it had to be done um and it wasn’t until he got the profile and courage award in 2001 from his one of his most you know vociferous critics during the period ted kennedy uh that he started to say you know what maybe he felt vindicated in his choice later in life so there’s a neat story there’s a neat arc there

9:28 um where you do the right thing in the moment even you know you bear the tremendous cost and at the end of his life he felt that he was on the right side on this stuff so i generally think it was the right move but you know it’s at the time it was horrid i mean it had that horrid kind of effect right uh and just a quick follow-up i mean it’s really fascinating right so

9:50 is this a part would you say i think as some others have argued that this is part of sort of national national healing and kind of going through that process rather than seeing a president not only removed from office but in in jail so things could have gone very differently with this whole thing yeah no i think that’s right i mean almost immediately and sort of i

10:11 guess probably like the second or third week of august ford had sent uh benton becker was a was a prominent lawyer that worked in the ford nixon justice department administration and he sent him out to go meet with nixon in california and there were real threats that nixon’s health was declining under the stress of watergate and there were

10:32 some questions and some rumors about nixon potentially taking his own life and the idea that a country and the press sort of frenzy that’s around a president might cost a president his life i think caused ford to say this is not what’s right for the country in the long run and i think that teaches gives a nice teachable lesson about what the

10:52 constitution does for presidents you know it may not seem like the right thing in the moment or my immediate gratification might not be served by this but the constitution gives me the authority to do you know what i think might be necessary for us in 40 years or 50 years um and so that pardon story is an interesting part i think it reaffirms the whole thing about the constitution

11:12 sort of made jerry ford sort of buttressed him i guess um even when his instincts would say you know i’m not i’m not i’m not going there right i didn’t know that so i’m learning uh it’s nice to talk with people about it for sure right now now congress attempted to restrain the the president’s expansive

11:34 war powers uh with the war powers resolution resolution especially in the wake of vietnam and and and and the very difficult war that america had just been through uh so how does ford respond because i i think this helps give us some lends into his his use of the constitution and powers yeah so i think this is this is

11:55 where it’s interesting ford was very much in a man of the house so he was always a man of the house of representatives um and he had advocated for legislative restrictions on presidential power throughout his term in congress so he was he he in the mid 60s when lbj was starting to ramp up vietnam you have all of these statements

12:15 from ford as the minority leader um in the house where he’s sort of saying maybe we should need to restrain this imperial instinct on the part of presidents um and so he’s inclined i think by the time he becomes president to try and figure out a way to make congress a good working partner he calls it a i want a good marriage with congress and his sort of pseudo-inaugural inaugural

12:37 joint session address but he quickly finds that institutionally the institutional design of the congress and the presidency make it difficult as a workable policy as his term progresses and so in in that context i think he quickly sees why the constitution makes

12:58 the president a singular office with one person to make these hard decisions so we’re all on the same page when it comes to you know making questions of military force or diplomacy um he so in the book i talk about three basic episodes of this he he there’s four days after he takes office there’s a cypriot

13:18 civil war between a greek faction in cyprus and a turkish faction in cyprus cyprus and they sort of come to blows and ford thinking he can let congress take the lead goes to congress and he says hey can you help me figure out a formulate a policy and they give him crickets because of domestic politics between the

13:39 greek sort of hellenic american lobby community um and he realizes he just can’t rely on congress to give him the guidance that he would need and so you get to the fall of saigon sort of you know four or five months later and the same thing happens he finds that there’s two members of congress are in

13:59 china they’re all on their easter break when saigon falls and so everybody’s spread out all over the place and he he says you know i tried to call them i tried to convene them and they’re like jerry whatever you want to do go ahead knock yourself out and so they’re willing to cast the responsibility of the presidency so after saigon after the fall of cambodia after cyprus he says

14:20 you know what these guys while on paper they want to be involved institutionally the instinct just just isn’t there we just can’t get our act together um and so later on by the time you get to that sort of early spring of 75 he becomes much more self-confident in the need to

14:41 be a president and order troops into in the you know hazardous circumstances to act all while paying lip service to the war powers resolution so he’ll bring members of congress in and he’ll say you know what consistent with my wish to make sure congress is informed he never says in compliance with the war powers resolution and i

15:02 think that model sets the pattern for every subsequent president all the way through bill clinton barack obama all of these folks who have sort of paid tacit attention to the war powers resolution because it is a valid law right but at the same time found wiggle room within what the meaning of the word consult is right and all of this stuff so it’s a really

15:24 interesting episode he’s the first president to confront it and sort of you see this kind of soft concessions where he can but that becomes the pattern for every subsequent president as well so it’s really cool it’s a really cool episode right right and and as a follow-up you know it it really strikes me that you know you’re ford is running a hamiltonian presidency

15:46 right i’m thinking of the federalist paper 70 71 just acting with energy and dispatch and in a way that you were alluding to congress really can’t yeah yeah and you’re a great hamiltonian guy yourself you’ve got a great book on that too uh the the thing about it is i found that ford channeled hamilton so if you want a modern example of hamiltonian

16:08 arguments they’re sort of couched in the awesome sort of western michigan grand rapids way but it’s so it doesn’t read like the federalist papers but he has that kind of his his public messages it’s all right out of fed70 the pardon out of fed74 um fed 72 on duration and the veto like

16:28 all of these pieces you can see them kind of working their way out in the ford presidency he had a scholar in-house that worked for him by the name of robert goldwyn and we found in in going through his notes he has a marked up copy of the federalist papers and in the record where he briefed president ford on hey you know this alexander hamilton guy he

16:50 had something for you here and you should probably pay attention to the political teaching of the federalist and so it’s an interesting way he he connects that up um after ford left office in 1977 he gave a great speech the john sherman cooper lectures at the university of kentucky i think it’s april of 77

17:10 where he walks through effectively federalist 70 but in terms that are updated for the times like i couldn’t count on congress in the context of the war powers resolution they were all out of town i was concerned about telling them things they might tell the press like it goes through the whole reason and for the rest of his life he thought the war powers resolution was a terrible law

17:31 because it constrained presidents when we want them um and that balance is a really important uh thing that i think his his whole presidency teaches about the separation of powers it’s never you know the president gets to decide or congress gets to decide it’s always that kind of give and take the pendulum this balance

17:52 that that exists between both branches so right great stuff so uh next question is something i’ve always found interesting you know obviously the the cia other intelligence services were um you know sort of being raked over in the press for for um you know revelations of regime change and assassinations and and abuses of

18:14 power here in the united states and so the church and pike committees uh launch these famous investigations um to try to curtail you know what we call quote-unquote secret governments right and so how how and why did ford seek to preserve presidential control uh over national security and and what were sort of the the needs of secrecy in in

18:37 diplomacy yeah i mean this is this is a good example of you know those those recurring episodes we have in american history where we we want congress to be involved in these things but it is historically a presidential a presidential kind of prerogative to engage in covert activity and and push for these things what had happened post-world war ii

18:58 um and our friend our friend steve knott knows a lot about this whole period but he talks a lot about how members of congress sort of authorized almost blank checks to the presidency to carry out covert action um and so this period was the first time congress sort of acted like they were aware of it i guess

19:18 that they became suddenly aware of the fact that we engage in activities uh abroad that are sort of covert and intelligence related so ford kind of confronted this reckoning i guess that we had over what we had done in the early stages of the cold war an important part of this was william

19:38 colby the then director of the cia constructed and sort of put together this retrospective review but then it got leaked to seymour hirsch of the new york times and hersh published all of this in the new york times and out laid it all out and immediately members of congress who prior to the publication had heard

19:59 about this happening but acted sort of shocked like wow this stuff is going on and reacted in the same sort of fervor of watergate to say you know what bad president we need to we need to reign this crazy thing in um and and really sort of pushed to get it the abuses of the intelligence community

20:20 and so for the next sort of year and a half maybe a year and three months they sort of dredged up all of this stuff there’s pictures of senators pointing dart guns in the senate and they’re sort of puzzled by this dart gun that was meant to go after fidel castro poisoned cigars and things like that so

20:41 it was showy in a way that congress does but ford worked with them because he respected the idea that congress needs to hear these things and needs to know what’s know what’s going on and so they tried to work out a way in which documents were given but the executive branch retained some control and it got really messy over that next year

21:02 for ford’s part he was really trying to protect sources and methods so any of the stuff where you know a spy’s name abroad well somehow somehow not completely unrelated to the investigations an american ambassador an american diplomat richard welch was assassinated

21:24 and ford used that sort of tactically to say here’s what happens when we disclose the identities of our people abroad here’s why we need to reform the intelligence community and again he sort of found his voice to issue an executive order where he took it in-house and reframed all of the intelligence community down the line

21:44 because he believed he had the constitutional authority even as congress is telling him no it’s our it’s our baby we can kind of constrain the constraints it’s an interesting episode where again they’re they’re constantly moving so both branches are asserting their constitutional powers and at the same time operating in this fact-driven

22:06 what’s released today how do we deal with whatever’s coming down the fight and so that’s a part of the story that i think is really fascinating fascinating too all right good uh and and a big question i know but but an important one sort of at the heart of your book um so you’re right that ford preserved the constitutional presidency and and quote ensure that our

22:27 constitutional system would persist and quote so what are the characteristics of that constitutional presidency and what are the powers and limits of the office as we ask in our main question here and then how does ford preserve those powers and limits yeah no and i think it’s kind of all the things we’ve just sort of talked about a little bit it strikes me it strikes me that

22:48 when it goes back to that idea that what do you do when you don’t have the sort of political force of the office well you have no choice but to go back to what is always there for presidents um from george washington to joe biden the essential constitutional powers of the office still remain they can adapt right you can have a president that’s

23:10 really powerful post 911 that you want to be really powerful post 911 and you have a presidency that also goes back into a box at different moments when you when you don’t want that when you want democratic control and that movement i think is sometimes lost on people who are sort of legal scholars right they just look at the text and well this is the determinant

23:31 piece of the text and so always presidents get to initiate conflict or congress always has to do this and politically it’s a much more kind of flexible thing and we want that i guess um and so ford back to your question how did ford preserve it ford modeled politically how you operate a legal text in the constitution

23:52 so it’s never there’s always that flexibility in the hinges that allows the constitution to adapt um and i guess where i get to at the end of the day i say you know the constitution established this really resilient order we have a really resilient system that that has that capacity to move to

24:13 fit political circumstances even when ford’s his weakest he’s saying hey guys you know this this idea of the war powers resolution is really going to make it really hard for us to respond to foreign affairs here’s how it could go poorly for us are we sure we want to go there and it has that conversational quality i think it’s walter badgett the

24:34 the british constitutionalist he says you know we’re built around a government by discussion and both branches sort of put forward their constitutional arguments and they’re able to talk about it but contingent on one branch not being able to completely bowl over the other and ford’s ford’s time in office i think

24:56 shows that even when they’re weak even when they’re weak they still have that opportunity to participate as a self-governing society and providing a new perspective that the country may need to hear um alex i i can’t thank you enough for for joining us i i never thought i would say this but i could sit and talk about gerald ford all day with you i didn’t

25:18 think i’d write a book on him either so it worked out it’s surprising you know he’s a neat guy for sure well thanks for coming on the book is gerald ford and the separation of powers and i want to thank all of you for joining us for this episode of scholar talks please check out our other other interviews in the series on the american presidency and from our extensive library of interviews on the

25:39 topic including the cold war and the presidency series steve knott on the constitutional and populist presidency and sarah burns on the presidency and war powers also check out the highly popular bri curriculum presidents and the constitution thank you very much