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We Pay the Price for Failing to Treat Ex-Presidents as Ordinary Citizens

President Richard Nixon releases edited transcripts of the White House recordings related to the Watergate affair, April 29, 1974. 

Image Gerald R. Ford Library and Museum, National Archives and Records Administration.

Security aside, why do we allow former presidents to be treated as anything but ordinary citizens? This question was being asked about Donald Trump’s arraignment in New York, where he was not placed in a holding cell, handcuffed, nor photographed for his mug shot.

George Washington yearned to return to the status of fellow-citizen following his presidency. "I anticipate with pleasing expectation that retreat,” he wrote in his farewell address, “in which I promise myself to realize, without alloy, the sweet enjoyment of partaking, in the midst of my fellow-citizens, the benign influence of good laws under a free government, the ever-favorite object of my heart, and the happy reward, as I trust, of our mutual cares, labors and dangers."

But the treatment of Richard Nixon after his resignation in 1974 set some unfortunate precedents. Nixon’s escape from indictment, the manner in which his secret grand jury testimony was taken, and his claim that the White House tapes belonged to him as personal property all displayed an undue deference for the former president.

And the Nixon precedents unwittingly set the stage for someone like former President Donald Trump to point to Nixon when seeking favored treatment. He held up Nixon as the example of a former president who was allowed to keep and use his presidential papers as he wished.

In an interview that aired March 27 on Fox News, Trump told host Sean Hannity: “This is the Presidential Records Act. I have the right to take stuff. Do you know that they ended up paying Richard Nixon, I think, $18 million for what he had? They did the Presidential Records Act. I have the right to take stuff. I have the right to look at stuff.”

Trump, as usual, had his facts all wrong. The settlement of the Nixon lawsuit that allowed him to be compensated for his presidential records, including the tapes, resulted from Nixon’s status before the law was changed by the Presidential Records Act (presidents traditionally had been understood to own their presidential records). The Act actually arose from Nixon’s abuses, and from President Reagan forward all presidential records have belonged to the nation, not the outgoing president.

But even more harmful to the perception that former presidents are entitled to special treatment was the Nixon pardon. When President Ford gave Nixon a “full, free, and absolute pardon” after Nixon resigned, many believed Ford had done the right thing. Today, after Trump, most see the pardon as a mistake.

Ford’s reasoning resonated with most Americans at the time. He argued, in the pardon document, that “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States.” Further, he foresaw that the “prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”

Less known but equally illustrative of the problem was the way the Watergate Special Prosecution Task Force treated Nixon when it came time for his grand jury testimony in 1975. In May 1975, prosecutors decided they needed Nixon’s testimony for the Watergate Grand Jury. The trial of Nixon’s highest officials (John Mitchell, Bob Haldeman, and John Mitchell) had already taken place and resulted in convictions, but the grand jury was interested in additional evidence.

The prosecutors carefully danced around the request for the former president’s testimony, making special arrangements to secure Nixon’s cooperation. After negotiation with Nixon’s lawyers, it was decided that his testimony would be taken at a Coast Guard station at San Mateo Point, California, near where Nixon resided (not to be confused with another station in San Mateo County south of San Francisco). Because the full grand jury was sitting in Washington, prosecutors had to get special permission from the Court to allow Nixon to testify before only two of the grand jurors—the foreman and one other.

No other witness would receive such extraordinary accommodations.

Nixon's "Western White House" residence, San Clemente, California. The former president's testimony to two members of the Watergate grand jury was given nearby, rather than in Washington.

The transcript from that testimony, given on June 23 and 24, remained sealed until 2011, thirty-six years later, and long after Nixon’s death in April 1994. The transcript showed that the prosecutors examined Nixon with kid gloves and Nixon played to the two grand jurors in a cozy setting of his choice.

The prosecutors lost control almost immediately, with Nixon dominating, interrupting, and speechifying. When the first questions were asked concerning the famous 18 and ½ minute gap in a June 20, 1972 tape, Nixon jumped in.

“If I could ask one question here,” he interrupted. “Just for information only.” Without waiting for the prosecutor to respond, Nixon continued with a derogatory remark he hoped would bias the grand jurors against Judge John Sirica, who had overseen the Watergate investigations and trials: “This matter of the eighteen and a half minute gap,” he said, “I know Judge Sirica considered [it] to be his dish of tea and he had it all wiped around in open court.”

The prosecutors did nothing to rein in Nixon’s snarkiness. Nixon denied any knowledge of how the gap might have occurred.

In fact, Nixon was not even confronted with his own voice on tape, and many of his answers evidence a witness who was trying to deceive his listeners, according to one former CIA expert in lie-detecting who reviewed the transcript.

The fact that Nixon was never tried, the fact that his grand jury testimony remained secret as he strove to rehabilitate his reputation, the fact that Donald Trump saw Nixon as heroic and still points to his actions as a model—this all leads to one inescapable conclusion: it was a mistake to let Richard Nixon skate when it came to accountability.

To his credit, Nixon resigned his office. But by the time he did, he had lost the Senate and was sure to be impeached and convicted.

History has given us the wrong lessons when it comes to how we treat former presidents. No doubt we should look back further in time to when George Washington voluntarily relinquished power and returned as an ordinary citizen to Mount Vernon.