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The Nixon pardon in constitutional retrospect – National Constitution Center

President Gerald Ford’s pardon of Richard Nixon on this day in 1974 generated a national controversy, but in recent years, some of the pardon’s biggest critics have changed their tunes on the unprecedented move.

Source: The Nixon pardon in constitutional retrospect – National Constitution Center

Watergate reporters Carl Bernstein and Bob Woodward had vehemently opposed the pardon after Ford went on national television on September 8, 1974, to announce it. But in recent years, the former Washington Post journalists have approved of Ford’s move to absolve Nixon of any criminal charges related to the Watergate break-in and its cover-up.

In a July 2014 panel hosted by the Post, Woodward called the pardon “an act of courage.” He had talked with Ford decades after the pardon and said the former President made a “very compelling argument” for his actions based on national security and economic needs.

The late Senator Ted Kennedy said in 2001 that while he initially opposed the pardon, he had come to accept it as the best move for the country. And Richard Ben-Veniste, a former Watergate prosecutor and a Democrat, wrote about the pardon shortly after Ford’s passing in 2006.

“Did Ford make the right decision in pardoning his predecessor? The answer to that question is more nuanced than either the howls of outrage that greeted the pardon three decades ago or the general acceptance with which it is viewed now,” Ben-Veniste said in a commentary for the Post.

“The decision to pardon Nixon was a political judgment properly within the bounds of Ford’s constitutional authority,” he argued. “Jerry Ford acted in accord with what he sincerely felt were the best interests of the country; that there was no secret quid pro quo with Nixon for a pardon in return for resignation; and that Ford, a compassionate man, was moved by the palpable suffering of a man who had lost so much.”

But in the months after the pardon back in 1974, most Americans didn’t approve of Ford’s move. In a Gallup poll taken 43 years ago, 53 percent of those polled disapproved of the pardon. However, in a 1986 Gallup poll, 54 percent of Americans said they now approved of the presidential pardon.

Ford appeared in front of a House judiciary committee in October 1974 to explain the pardon.

“I was absolutely convinced then as I am now that if we had had [an] indictment, a trial, a conviction, and anything else that transpired after this that the attention of the President, the Congress and the American people would have been diverted from the problems that we have to solve. And that was the principle reason for my granting of the pardon,” he told Representative Elizabeth Holtzman.

At a 2014 panel discussion, Ford’s lawyer during that period, Benton Becker, explained an additional element that influenced Ford’s decision to issue a presidential pardon: a 1915 Supreme Court decision. In Burdick v. United States, the Court ruled that a pardon carried an “imputation of guilt” and accepting a pardon was “an admission of guilt.”. Thus, this decision implied that Nixon accepted his guilt in the Watergate controversy by also accepting Ford’s pardon.

Prior to Ford’s issuance of the pardon, Becker was tasked with the difficult job of mediating the negotiations between Ford and Nixon. Becker said he took copies of the Burdick decision to California when he met with former President Nixon, and under Ford’s instructions, walked through the decision with Nixon.

Becker said the discussion with Nixon was very difficult, and the former President kept trying to change the subject way from Burdick. Finally, Nixon acknowledged Becker’s argument about what the Supreme Court decision meant.

After he left the White House, Ford carried part of the Burdick decision with him in his wallet in case someone brought up the pardon. In a later interview with Woodward for Caroline Kennedy’s book, “Profiles in Courage for Our Time,” Ford pulled out the dog-eared decision and read the key parts of it to Woodward.

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CT – Sausage Making | Plausibly Live

In 2014, the world faced the specter of ISIL (or ISIS or IS) as the Islamic State overran vast swaths of territory in Iraq and Syria (the “Levant”) and begun to impose its version of Islamic Law on the local inhabitants who really just wanted to be left alone. When they (the locals) wouldn’t go along with the insane Islamic nut jobs, they (ISIL) began to commit mass murder on an industrial scale.

Reactions ranged from the idea that we – the United States – had a “moral” duty to step in, to the position that we should stay the heck out of yet another war in Asia. was the Islamic state an actual threat to the United States or its “national interests?”

How do we define the “National interests” that guide our foreign policy? Most of all, what does the Constitution have to say about not just the powers involved, but what, if anything, about the process?

Sausage making, as the process has been described, is not really pretty, and generally speaking not at all interesting.

But if you want breakfast, you have to break a few eggs. And grind up some pigs…

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Source: CT – Sausage Making | Plausibly Live

The Louisiana Purchase: Jefferson’s constitutional gamble – National Constitution Center

On October 20, 1803, the Senate ratified a treaty with France, promoted by President Thomas Jefferson, that doubled the size of the United States. But was Jefferson empowered to make that $15 million deal under the Constitution?

The Louisiana Purchase was a seminal moment for a new nation. The land involved in the 830,000 square mile treaty would eventually encompass 15 states. In 1800, the vast region came under French control after Napoleon reached a treaty agreement with Spain. Jefferson was very familiar with the French, due to his time in Europe as an American envoy. He also understood the potential military danger a French regime posed as a neighbor that controlled the Mississippi River.

Jefferson sent James Monroe in 1803 to France to join Robert R. Livingston in an attempt to buy some part of the territory from the Napoleon regime, in order to head off a potential armed conflict. Jefferson told his friend Monroe that “all eyes, all hopes, are now fixed on you, …. for on the event of this mission depends the future destinies of this republic.”  Monroe had the authority to spend up to $10 million to acquire New Orleans and all or parts of Florida.

But when Monroe arrived in Europe, Napoleon had already made a decision to sell the territory to the United States, in order to protect other French territories in the Caribbean and to finance his military efforts in Europe. Monroe and Livingston found out Napoleon wanted $22 million for the entire territory. After several weeks of negotiations, the Americans made a deal for the $15 million purchase, which also exceeded what they had the authority to spend. It took several months for the official news to reach Jefferson in Washington, D.C., and it was announced on July 4, 1803.

While the deal was instantly popular, there were problems. Negotiations would need to start with Great Britain and Spain about shared boundaries. And there was a debate about how such a large purchase was allowed under the Constitution.

Jefferson took a strict, literal view of constitutional powers, meaning that specific powers reserved for the President and Executive Branch needed to be spelled out in the Constitution. The ability to buy property from foreign governments was not among these powers listed in Article IV of the Constitution – a fact that his political opponents, the Federalists, were eager to point out to the President.

Instead, Jefferson considered a constitutional amendment as the only way to conclude the deal with France. “The General Government has no powers but such as the Constitution gives it,” he wrote to John Dickinson in 1803. “It has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.”

However, Jefferson had no intention of losing the deal with France. “In the meantime we must ratify and pay our money, as we have treated, for a thing beyond the Constitution, and rely on the nation to sanction an act done for its great good, without its previous authority,” he told Dickinson.

Jefferson’s cabinet, including James Madison, disagreed about the need for a constitutional amendment. The President also had been assured earlier in the year by Albert Gallatin, his Treasury Secretary, that any potential deal with France would be permissible and implied under the Constitution’s treaty-making provisions.

Jefferson rationalized his decision for the treaty to be sent to Congress without an amendment to John Breckinridge. “It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good,” he said in August 1803.

By that time, Jefferson and his supporters faced an October 31, 1803 deadline to ratify the treaty or lose the purchase. Ironically, the deal to expand federal powers would need to be sold to the Federalists, who had advocated such a position before the treaty was signed, and supported by the Republicans, Jefferson’s party, which had opposed such a broad extension of presidential powers.

The debate in the Senate only lasted for two days. On October 20, 1803, the Senate voted for ratification 24-7, and the treaty was signed on October 31, 1803. In the treaty’s aftermath, although some Federalists continued to view the Louisiana Purchase as unconstitutional, the purchase was never questioned in court. If it had been, Jefferson may have come in conflict with his own cousin and political rival, Supreme Court Chief Justice John Marshall.

But years later, Marshall made his thoughts clear about the treaty clause in an 1823 decision called American Insurance Co. v. Canter.  “The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty,” Marshall said.

Scott Bomboy is the editor in chief of the National Constitution Center.

Source: The Louisiana Purchase: Jefferson’s constitutional gamble – National Constitution Center

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