Jeffrey Toobin discusses The Pardon: The Politics of Presidential Mercy

In this episode of Re-Examination, Murray Coffey and Andrew Longstreth sit down with journalist and historian Jeffrey Toobin to discuss one of the most consequential moments in American political history—Gerald Ford’s decision to pardon Richard Nixon. In his new book, The Pardon: The Politics of Presidential Mercy, Toobin argues Ford’s act—however well-intended—was a political miscalculation that deepened distrust in government.

"A bad pardon for an honorable reason is still a bad pardon, and that is what Ford's pardon of Nixon was." – Jeffrey Toobin

Presidential pardons have always been an extraordinary power, derived from the royal prerogatives of kings and inserted into the U.S. Constitution with little oversight or restriction. But no pardon has shaped modern American politics more than Ford’s absolution of Nixon. 

With presidential pardons once again at the center of national debate, Toobin connects historical precedent to Trump’s pardons of January 6 rioters and Biden’s pardon of his son, Hunter Biden. He discusses why he thinks of presidential pardons as "x-rays" into the souls of presidents. 

And then there is Evel Knievel.

Ford announced the Nixon pardon on September 8, 1974, the same day that Daredevil Evel Knievel attempted—and failed—to jump Idaho’s Snake River Canyon in a rocket-powered Skycycle. The two events may seem unrelated, but Toobin sees Knievel’s jump as a perfect metaphor for the times: grand gestures, high-risk maneuvers, and the political realities of failing to stick the landing.

"Like Knievel soaring over the canyon, Ford thought he could clear the Watergate scandal in one leap. But history shows that neither of them stuck the landing." – Jeffrey Toobin

Thank you for listening. To learn more, visit Infinite Global and M Coffey.

Transcript

Andrew Longstreth: On Sunday, September 8th, 1974, President Gerald Ford gathered a team of advisors in the White House's Oval Office to review hastily planned remarks explaining his decision to pardon former President Richard Nixon. Negotiations between the Ford and Nixon teams had just concluded that weekend, but President Ford did not wanna waste another minute despite the bizarre timing, a Sunday morning during the waning days of summer, Ford barreled toward the most consequential moment of his presidency

As recounted in his new book, The Pardon: The Politics of Presidential Mercy. journalist Jeffrey Toobin reports that Ford was so anxious to put the Nixon drama behind him that he had not consulted with anyone outside a small coterie of aids. In a round of courtesy calls forward made to legislators that morning, informing them of his decision, their reaction was the same.

Why Pardon Nixon Now, why not let the criminal [00:01:00] investigation play out? Ford claimed in his speech that he was doing it for the good of the country so it could move on and heal from the Watergate Scandal. “I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I as president have the constitutional power to firmly shut and sealed this book.”

But as Toobin argues, Ford's belief that a pardon would heal the nation's wound was a tragically misguided political calculation. Instead of healing the country, the pardon increased partisan ranker and may have led to Ford's defeat in 1976; he failed to see what the public saw, that it was a gift to Nixon, who had shown no remorse at all.

Pardons, which give King-like powers to Presidents, act as quote “x-rays” into their souls Toobin rights. “A bad pardon for an honorable reason is still a bad pardon. [00:02:00] And that's what Ford's pardon of Nixon was.” 

Introduction to the Reexamination Podcast

Murray Coffey: Well, hello and welcome to the first reexamination episode of 2025. Uh, looking forward to, uh, what we have coming up here.

We're doing something new. Uh, that we haven't done in the past, which is we're, we're speaking with, uh, an author this time. We are, we have the, the great honor of speaking with, uh, Jeffrey Toobin. Um, as a reminder, uh, this is, uh, joint production of M Coffey and Infinite Global, and I'm here today with my friend Andrew.

Andrew: Uh, uh, I found the book to be, to be fascinating. Uh, but, uh, but what. Yeah. What I, what I really liked about the book was that it told a story, um, and it had real characters in it. This, this could have been a tricky book to write, you know, about the pardon, which is a right, um, a power, but he [00:03:00] rightly.

Chose to focus on a specific use of that power. Arguably the most famous example in, in American history, the Ford's. Pardon? Of Nixon. And so you, you really, um, were captivated by, by the whole story. You just, I I kept turning the page. It was a, it was a fast read and so I thought that was a really smart decision that he made.

We've got a great conversation coming up, so let's get to it. 

Inspiration Behind the Book

Andrew: So congratulations on book number 10, Jeffrey. First of all, um, this is a super, super timely book. So let's just start off, how did you come to this book? Um, how did it start? What led you to it at the, pardon? 

Jeffrey Toobin: Well, I, I think it was. In, um, the, the very early parts of the 2024 campaign when, um, I saw the shift going on with, um, then former President Trump starting to talk about [00:04:00] pardoning the January 6th.

People. Um, and, and you know, he's, he's been talking about it for ma for many months. We, it was not a sort of last minute. Pardon, but, but the thing that really occurred to me was that. If Harris won, there was gonna be considerable pressure on her to pardon Trump because there has been this interesting shift in, um, sort of elite and perhaps even public opinion that the Ford, pardon of Nixon, which was.

Um, considered very much a negative and a bad thing when it happened in 1974 was actually, um, the right thing to do, and I knew there would be pressure. On Harris, um, to pardon, um, Trump in the same way that Ford, pardon Nixon. So it seemed to me that, you know, coming into the new administration pardons would be a, a big story.

And then I [00:05:00] saw that there had never really been a book exclusively about. Or, or an examination at length of Ford's. Pardon, of Nixon. Um, so all of that led me to, um, decide to write it and to, frankly, to have it come out, uh, here right after the inauguration. Perfect timing. Yeah. Yeah. 

The Impact of Presidential Pardons

Murray: You, you, um, you've, you've done in, in, in, in press books.You've done a deep dive into pivotal moments in US history and culture. You've covered subjects like Patty Hearst, Timothy mcfe, now presidential pardons. We know, we know that you've, you've, you've, you've answered part of the question about what drives you to explore this, certainly the, certainly the topic of, of, uh, pardons.

But what is driving you to explore these topics? Some like Nixon and Ford that you know, are, are a big part of your, your book, uh, which by the way was a thoroughly enjoyable read. I, I had never thought I would read 300, uh, riveting pages on presidential pardon power. Um, but [00:06:00] congratulations. Uh, but those, uh, those, those, uh, uh, you know, issues like, like Nixon or Ford, they've been extensively covered and you managed to tell a story in a fresh way or even uncover some new angles.

You know, how, how are you doing that? How are you approaching that? Well, our, our podcast is about storytelling, so we'd love to hear. 

Jeffrey: One of the things that, you know, I've, I've become aware of over the years is that. When, when you take a familiar subject, people often say sort of off the top of their head.

You know, everyone knows that story or you know, and, and one of the things you quickly discover is they don't, is that they, you know, they, they know the bottom line. They know that Ford, pardon Nixon. They know that, um, you know, OJ Simpson was acquitted. They know that Bill Clinton was impeached but not removed from office.

But, um, once you get into the story. Um, [00:07:00] it, there, there's all, there's, it's, it's, it's a story. It's a narrative. And, you know, one of my editors, um, you know, Phyllis Grant, who edited several of my books, you know, she, she always, you know, emphasized, you know, narrative story, you know, tell a story. And, um, here in the, pardon.

The, the narrative part of it, uh, you know, it features two really great and very different characters. Richard Nixon and Gerald Ford. And, um, to see how Nixon considered using pardons as one vehicle to get out of Watergate, and then to see how he basically manipulated Ford into giving him a pardon, uh, once he was forced from office.

You know, I'm a pretty smart guy. I'm a pretty, I didn't know this story. Right, right. I'm a pretty well-informed person. I didn't know, uh, how this, how this story unfolded. And, and, and also when you're talking about [00:08:00] 1974, I. That's a long time ago. Right, right. To the extent that that, you know, people were alive then.

Uh, I mean, I was a, I was a kid. Um, you know, they, they've forgotten even what they know, so I don't really worry Yeah. That, um, people say, oh, you know, I know that story because I know from my own experience that even I, you know, I followed the, you know, I, I was aware of them and I didn't know the story.

Historical Context and Modern Parallels

Andrew: Yeah. Yeah. I, I read the book at least. Uh, this in part is sort of almost an elegy to, to a time in a country that seems so foreign today, um, you know, to our political environment. Certainly the whole country seemed to think that, you know, Nixon was a crook and that that sort of unanimity and that bipartisanship, it just seems so, so, um, unrecognizable.

I'm just wondering, do you feel as many of us do at this moment? A little bit. I. Frankly, unmoored when, when, when pardoned violent, January 6th, criminals are on the streets, allegedly [00:09:00] committing more crimes that uh, we're not sure if the executive branch. Will obey court rulings. I mean, I, knowing what you know about history, what has Jeffrey to been thinking about this moment from, you know, the legal landscape?

Jeffrey: Well, it, it, it, it is, um, a, a a new day in, um, in every, in, in every sense of the word. And, you know, there, there, there, there were so many echoes of, um. The, the, the Watergate story in the story that's, you know, that, that, that's unfolding now. Yes. Um, you know, it, it just, just to, just to pick one, you know, one, one of the great things is to, you know, go into the White House tapes, um, from that era.

There were discussions of, of pardons then, um, where, where, you know, John Dean, who was Nixon's White House counsel, um, would say to Nixon, [00:10:00] you know, we just can't, uh, pardon Howard Hunt or, or these other Watergate, the political blowback would be too gray. And you fast forward to today and, um. Donald Trump is pardoning people in, in who committed egregious crimes against cops.

Um, and, and he pardoned, um, you know, egregious criminals at the end of his first term in, you know, 2016, 17, I mean, I mean 2000. Um. 2021. And, you know, the, the rules have re, the rules have really changed. Uh, you know, I think a lot of it has to do, uh, with the fracturing of the news media. You know, in 1974, uh, a big, a big part of this story was that

You know, you had very few news outlets, um, that were, that most people followed, Walter Cronkite and Huntley Brinkley on the news. [00:11:00] Um, you know, there there was not cable news, there was not the internet, and you had this sort of shared sense of reality, which has vanished today. Um, and, and, you know, you, you have

People who live in entirely different factual realities. And I think that makes the realm of what's politically possible, very different and, and President Trump has taken great advantage of that. Yeah. 

The Storytelling Approach

Andrew: You know, back to the storytelling, you know, I was, I was thinking about, um. How did you make the decision to root the book in the Watergate story?

In the Ford's? Pardon? Of Nixon? Um, you wanted to do something about, pardon? Was it just obvious that that's where the, the, the root of the story would go? Or did you, how did you get there to that decision? Well, I, you know, I, I, um, I, I've, especially in recent years, I feel that I sort of operate on the borderline between journalism and history.

Mm-hmm. And, and, and I [00:12:00] don't think that's . You know, particularly an important distinction, but I just, you know, I I is useful, I is useful in my own head. And, you know, this was the first book, um, that I worked on where, just to be blunt, almost everybody in it was dead . Uh, and you know, it's funny, I, I did a book about the Patty Hearst case.

Um, um, almost 10 years ago, which took place also in 1974. And, and there are actually a couple of references to the right in the pardon, but. Everyone involved in the Patty Hearst case for the, for the most part, was in their thirties in 1974. Right? So they were all still alive 10 years ago, Al almost without exception.

So I, you know, I could interview f Lee Bailey and Yep. And, uh, the prosecutors and the, the, the kidnappers, um. Yeah. Everybody involved in the Watergate story for the most part was in their [00:13:00] fifties and sixties in 1974, you know, and they're almost all gone. Some of the Watergate special prosecutors are, are still alive.

John Dean is very much still alive. Yes. Right. Friend of mine is very weird experience to listen to the White House tapes and then call John on the phone. , what did you when you said X? Amazing, amazing this book. Felt like history and um. You know, I had several advantages going for me. There are the tapes, which are an incredible resource for historians, but also a lot of people over the years have done oral histories.

Yeah. Uh, and they are in various archives and libraries and oral histories are really a great gold mine for journalists and historians because, you know, you, you get people's perspective, um, in, in an undiluted way. And that's a, um, that's a real . Uh, that, that, that, that was a tremendous boon to me. Yeah.

Andrew: Garrett  Graff, I, I believe is one of the book that you, you cited. Um, that, that book is that book. 

Jeffery: I mean, again, Garrett's book about Watergate called Watergate in New History is, is just a good example of how you can take a well covered subject and look at it in a new way. Mm-hmm . And, and, and learn a lot and, and, you know, this is sort of the way of history.

You know, how many biographies of Abraham Lincoln are there, or Winston Churchill. I mean, you know, they're not, people are not gonna stop writing them, nor should they, because the times are different. 

Andrew: You said you talked to over 50 people. Did you, did you think you got some new, was it more just, uh. Kind of reference cross-referencing things and, and, and, um, 

Jeffrey: No, there was, there, there, there was, uh, a lot, um, new and, and, and the core, um, issue in, in, in the story of the pardon over the years has been, was there a deal?

Um, did Ford make a [00:15:00] deal with Nixon or with Nixon's intermediaries where Ford, that, that Nixon would agree to resign handing the presidency to Ford, and Ford would then agree to a pardon, you know, what did that deal to play? And, and that has been, uh, written about a lot, including some people who allege that such a deal took place.

And I, um, very clearly, uh, conclude. That there was no deal. And, um, when, when you, you know, uh, triangulate all the sources, uh, and the conversations that took place, especially those involving Alexander Hague, who was Nixon's last chief of staff and Ford's first there, there, there was no deal. And, and I think that's

You know, very important to be fair to Ford at the same time, you know, I, I say that the Ford, the, the pardon was a terrible idea that, that Ford did it for honorable reasons. [00:16:00] He didn't do it because there was any sort of deal, but, but I think he sabotaged his own presidency. He debased, um, the power of the presidency.

And, um, he, he, um. Misled and, and he, um, you know, damaged his historical reputation by doing it. So, so, um, you know, there, there are that, that issue of, was there a deal is yes, is one I felt pleased to settle at least. 

Murray: Yeah. Yeah. I, I, I always thought there was a deal, to be honest. So there you go. There you go.

Now you know. Yep, exactly. I, yeah, I had a, the, the, the great, uh, uh, experience of working with a former managing partner of Kirkland & Ellis, a guy named El Elmer Johnson. And, uh, he, uh, he, he had this kind of long list of sort of, you know, how do you know when you've reached a certain level of.

Professionalism and you know, sort of where, you know who is, you know, how do you, how do you know when you've gotten to the [00:17:00] best? It's hard to make partner at Kirkland, right? So, so he, uh, he, he had this whole, this whole list. And one of the top sort of most important elements that he felt, uh, that a professional lawyer should have is what he called peripheral vision, right?

So the ability to know the issue that's in front of you, but also to look. To the both sides and to say, okay, what else is bring? What else can I bring into this argument? What else is this impacting? Et cetera. So evil, kl. That to me is, uh, is peripheral vision. And, uh, and, and I'm wondering, you know, so how did you, and I, I think, I thought it was a great way to tee all this up, but how did you get there?

I, I wouldn't have gotten there. And so I'm kind of curious and of course, as I told earlier, me down a rabbit hole of evil kl in man, did I learn a lot about evil that I didn't know. 

Jeffrey: Okay. So I, I, you know, I, I, for my sins. I have a very good memory and I, um, [00:18:00] September 9th, uh, Sunday, September 9th, 1974 was the, um.

The day of the, the day of the pardon. And it was a very strange, um, way to announce it. Uh, Ford announced it at a speech from the White House at 11 o'clock in the morning on Sunday. Sunday, on a Sunday in the middle of the summer. I mean, it, it's not the usual way important presidential speeches our, our scheduled or given.

But anyway, that's how it, that's how it went. I remember that on that day, um, I was at the US Open Tennis Tournament with my dad. My dad and I were big sports fans. He took me to the US Open and it was the men's final at, at, at, which was then at Forest Hills. In in New, in Queens. In Queens. And I remember that in the middle of the afternoon, they put on the scoreboard that Evil Knievel had not

Succeeded in crossing [00:19:00] the Snake River , uh, in, in this big, uh, highly publicized thing. And, and it, it was weird because at a tennis tournament, you don't expect to see an announcement like that on, on, on the scoreboard. And, and everybody sort of laughed and, and, but I remembered the day was particularly fraught with news.

And I also remembered that that was the day of the pardon? I. That, um, you know, the, the three events, you know, one of which was of only interest to me and my dad, which was the US the tennis tournament, right? But that evil Knievel, um, you know, failed to cross the Snake River and the pardon took place that day.

And so I just started looking into the evil Knievel story mostly 'cause it was fun. Uh, but I also thought it had kind of a symbolic resonance that after, um, two years. Almost two years of Watergate that, um, the country was finally, you know, past that, um, Nixon had [00:20:00] resigned a month earlier on August 9th. Um, Ford had given this wonderfully well received, um, initial speech.

He said, our long national nightmares over mm-hmm . Uh, and, um, the country could focus on silly things like evil Knievel mm-hmm . And as it turned out, it was the exact same day I. That Ford threw the country back into Watergate with the pardon And I, I thought it was a juxtaposition that, uh, was worth writing about.

And, and also, I mean, as you point out, evil KL was such a goofy, interesting character. It was worth a couple paragraphs to start just to remind people who he was and, and what he had done. This feels great. 

Andrew: Great storytelling. You, you wrote that pardons operate as quote X-rays into the souls of presidents.

Their political and legalistic parsing of them rarely works. And you wrote about Forbes Ford's obsession with an Obscured 1915 [00:21:00] Supreme Court case was, which was used as a justification for the pardon? Can you talk about that in just what . If, if anything it, it says about lawyers, , and about, um, their narrow way of thinking sometimes.

Right. 

The Legal and Constitutional Aspects of Pardons

Jeffrey: Well, well, just about the pardon, power. Um, you know, I, I, I have written a lot about the Supreme Court and the Constitution, and, and I. I, I, I looked at, at, you know, the, there's a chapter in the, in the book, the second chapter about the history of pardons and mm-hmm. And the thing that becomes clear right away is, is that pardons, um, are an anomaly in the Constitution because I.

You know, the, the Constitution is based on the idea of checks and balances, separation of powers, countervailing, uh, forces that, that, you know, may that lead theoretically to compromise. Mm-hmm . Pardons are different. Pardons are an absolute power of the president. [00:22:00] Um, they, they can't be challenged in the legislature.

They can't be challenged in court. Um, presidents, you know, give pardons only for one reason because they want to, and that, and that, and that's it. Mm-hmm . So. Um, uniquely among presidential powers, you see what matters to presidents that way, right? Because no one can tell them what to do or not do when it, when it comes to pardons.

And that's why I say it's, it's like an an x-ray in into presidential souls. I think you make a, you make, you make a very, it's a very good question about how lawyers think about things. Mm-hmm . Um, the case that, that you referred to from 1915 was called United States versus Bur, um, a case I had certainly never heard of.

Mm-hmm . Um, and, um, just let me tell you a short version of the case. 'cause it's a, it's, it's really a bizarre story. Mm-hmm . Um, an investigative reporter in New York City and he had uncovered. Some corruption in the [00:23:00] customs department there, and the, the Justice Department wanted to investigate that corruption, so they subpoenaed verdict to, to, um, to, to tell what what he knew and what his sources were.

And he said, I'm not telling, I, I'm, I'm not going to. You know, I'm gonna cite my constitutional rights. Right? And, and the au author, the, what they did was, um, they got, um, president Woodrow Wilson to issue a pardon to verdict, right? So that he had no Fifth Amendment rights and, and would have to spill. 

The Verdict Case and Nixon's Pardon

Uh, what he knew, but he said, I'm still not telling what, what I know.

So, and, and they threw him in jail for contempt of court and the case went up to the Supreme Court and the Supreme Court said Verdict did not have to testify because he did not accept the pardon. And because acceptance of a pardon means an acknowledgement that you did something wrong, an [00:24:00] acknowledgement of guilt, and, uh, verdict didn't do that.

Well, fast forward to 1974, um, . 

Ford's Misinterpretation and Nixon's Acceptance

Ford, the lawyer who was a, you know as well, a lawyer as well as a politician, read this case and thought, well, you know, Nixon is not going to accept a pardon 'cause it would involve acceptance of an acknowledgement of guilt. I. He wouldn't do it. So they, he, he got himself into this thought that he had to convince Nixon to accept a pardon

But in fact, Nixon was dying for a pardon. Right? And no one cares about the verdict case, right? No one really believes that acceptance of a pardon is acknowledgement of guilt. I mean, look at what's happened since January and the January 6th pardons. No one has said, um, that the, the people who who accepted those pardons are acknowledging their guilt.

The president is celebrating that, and it's an example of how lawyers get fixated on a legalistic [00:25:00] explanation for things, right? Like that a pardon is an acceptance of guilt when no one in the real world thinks that. But Ford to his dying day carried around a copy of of the Verdict case, an excerpt from it in his wallet to show people that Nixon had acknowledged his guilt, but.

It just shows. I mean, I, I think, you know, your example from the, from the Kirkland partner is, you know, you gotta have a big picture perspective about these things is that legal precedent is not the only thing that affects, uh, how people perceive the world. Hmm. 

Internal Conflicts and Jaworski's Decision

Murray: You know, there, there was a decision that, uh, the special prosecutor Leon Jaworski, uh, made, um, that was, that was, that was, uh, uh, not to indict.

To, to not, to not go forward with, with an indictment yet there were people, so you say, you say here, you know, some of the younger folks on his team, uh, who, who talked about the [00:26:00] mage, which, which I thought was a, was a great , great tone. Had had a different, a different feeling. I'll, I'll read a quote here. Uh, another po possible consequence.

Is an increased likelihood of wrongdoing by a future president who need not fear the strictures of the criminal law as limitation on the exercise of his immense power. Um, kind of, kind of, as I think you said, sort of prescient, right? Um, uh, when you were doing your research, did any of your research indicate that that, um, there was, that, that jaworski.

Was, was, uh, aligned, uh, with this idea, uh, or the of these ideas? 

Jeffrey: No, I mean, see, this, this is, this is, you talk about new, new disclosures in the book. I mean, one thing that, that really jumped out at me that I had not been aware of, and another reason why the pardon was, was a bad idea, is that Leon Jaworski, who was the Watergate special prosecutor, who was the ultimate decision maker on whether Nixon was ever [00:27:00] gonna be charged with a crime.

He didn't wanna charge Nixon with a crime. I don't think he would ever have charged Nixon with a, with a crime. And in fact, he . Was encouraging, not in so many words, but clear in a, in a clear, practical way. He was encouraging Ford. Pardon Nixon, because that took the decision off his plate. He had these, you know, lawyers on his staff, the young lawyers, um, like

You know, Richard Benveniste and Peter Frampton, the sort of the young firebrand, they were dying to indict Nixon because they felt a, that Nixon had committed crimes in the Watergate coverup, and they also thought that it was unfair to charge Nixon, Haldeman and Erlichman and John Mitchell, all of whom were about to go on trial in the coverup.

And not Nixon, because Nixon was the leader of the coverup and the beneficiary of the coverup. So, so, you know, there was a lot of internal pressure on, on, on [00:28:00] Jaworski to, um, um, to indict Nixon. But, you know, he wanted to, um, you know, move on and, and let the, and let the country move on. And, and the pardon was a way

Um, to get the decision off his desk. Um, so again, that, but, but. By, by successfully shifting the burden onto Ford. Um, he, he got the heat off himself, but, but Ford should have been savvy enough to know, I don't need to pardon it. Right. Jaworski was never gonna par, it was never gonna indict him. 

Historical Context of Pardons

Murray: Anyway, going back to some of the research that you did, you, you really did, um, get into, uh some minutia about, about pardons and the part, sort of the creation of the pardons, uh, in, in that earlier part of your book, and you said that, uh, uh, George Mason, uh, fearing an unduly powerful chief [00:29:00] executive, proposed that maladministration be added as another grounds for impeachment, which was of course rejected.

Um, but why did you choose to make that reference in your, in your, in the book? 

Jeffrey: You know, it's a, it's something that came up was rejected and they moved on so well, but because, I mean, one of the interesting things about, pardon, you know, the history of pardons, going back to the British experience under, under royalty, is that, you know, we think of pardons as a, um,

A vehicle for mercy. You know, it is for presidents to, um, evaluate, um, people who got a raw deal and, and rectify that. But going back to the, the parliament in the 16th century, 16th and 17th century in Britain, they recognize that. Pardons aren't just an instrument of mercy. They are an instrument of political power that, um, the ability [00:30:00] to pardon your friends and, um, take care of your friends and, and excuse your friends and allies and to use that.

Um, as a political tool is, is a real risk. And that's why, um, even back in, in Britain before b before the American Revolution, parliament said, um, the president, uh, the, the king could not pardon, uh, people for, um, impeachments that, that the parliament would vote because they wanted to preserve, um, their own power and, and that tension.

Between whether pardons are for um, mercy or whether they are for . 

Modern Political Pardons

The president to use in a cynical, political way that that goes throughout, uh, American history and, and certainly, uh, as you look at, you know, what [00:31:00] happened in, you know, with, um, the, the Trump pardons in his first term, um, and then Biden's pardons of, of, of his son and then his relatives, and then onto the January 6th, pardon?

These pardons are deeply political acts. They are not really about mercy and um, I. They, they all underline the risk of giving a president, uh, so much un uh, untrammeled power. 

Murray: One more question about some of the research and some of the ions that, that, that you saw over, over time in some of the exchanges. There was a, um, remarkable exchange, uh, between Elizabeth Holtzman, who was the New York Democrat, young New York Democrat. Between her and Ford. Uh, and, uh, there was a, there was a, uh, question, uh, that, that she put to him. Uh, she said, uh, lemme see. I'll, I'll read it for you. I wondered whether [00:32:00] anybody had, had brought to your attention the fact that the constitution specifically states that even though somebody is impeached, that person shall nonetheless be liable for punishment according to the law.

And, and he said, yeah. He said, you're, you're right. But, but, you know, your, your point was that, you know, both Ford and Holzman were correct and their understanding of the Constitution in 1974. Uh, but as of 2025, thanks to Trump, the United States. Uh, in the United States, this is no longer the case. I said, what, so what impact do you see of this change?

The Impact of Presidential Pardons

Jeffrey: See, see in the law, see, this is, this is such a huge part of the story. Yeah. And, and this is one reason why I, um, you know, decided to look at it. In 1974, it was completely understood and no one even raised the issue, right. Of whether, um, a former president could be prosecuted for crimes committed in office.

Yeah. Um, [00:33:00] that that was the whole reason for the pardon of fast forward. To, um, last year when, when Trump, the United States was argued in, in the, in the Supreme Court, justice Jackson asked Trump's lawyer, you know, what if, if your theory is correct, that. Uh, presidents can't be pardoned, can't be, uh, prosecuted for their criminal acts in office.

Why did Ford Pardon Nixon? He didn't need a pardon in that case, and the lawyer kind of danced around it. But what you look at John Robert's opinion for the court where he says that there can't be criminal prosecutions, . For official acts in office that completely rewrites the history of, of, of, of Watergate and all presidential scandals.

All presidential scandals are based on misuse of official power. Um, the, the [00:34:00] Mueller investigation, mm-hmm . Was based on misuse of official power. Now. Thanks to the decision in Trump of the United States, not only can't pre can presidents not be prosecuted for, um, you know, misuse of official power, they can't even be investigated for it.

So, um, when the next presidential scandal happens, and it will happen. The, the, the president will be able to say, I'm not cooperating with this investigation because it involves my official powers and I'm not disclosing any evidence. I'm not allowing my aide to testify. So, um, Trump, the United States, um, it was something that was literally inconceivable in 1974.

And as you point out that exchange between, um, . Um, uh, Elizabeth Holtzman and Ford Underlines. Um, just how unthinkable the [00:35:00] current situation was at that time throughout the book. 

Reflections on Nixon's Prosecution

Andrew: I couldn't help but think about what the consequences would've been had Jaworski, I. Um, prosecuted. Yeah. Uh, Nixon, and it's hard to speculate, but I'll go ahead and ask you to do it.

Uh, you know, how would, how much would a successful prosecution of Nixon change this country? I mean, I, I take it that you think the whole experience contributed to cynicism, um, that pervades our politics today. 

Jeffrey: Yeah. I mean, I, I think, um, . It would've been a very high profile trial. Um, but it would've been an important act of accountability, especially since, you know, he resigned and didn't, you know, face impeachment and removal from the Senate, impeachment in the house and, and removal in the Senate.

And, and, you know, one of the, one of the claims in the defenses of impeachment, the main in defense of impeachment was that, well, . Um, by, [00:36:00] by Obviating, um, the, the chance for a, um, trial of Nixon, it allowed the country to move on. And, and that's been the defense of, of, of the, um, pardon, ever since. Um. I think the country would've moved on better, right?

If, um, if Nixon had faced accountability, if Ford wanted to pardon him after he'd been convicted of, to, to, to spare him a jail sentence, I think that would've been a lot more justifiable than what he did. You know, we don't need to have, you know, former presidents in prison, but they should face accountability, uh, like everyone else and, and in terms of allowing the country to move on.

Ford's Presidency and the Watergate Legacy

Uh, one thing I am confident of is that the only thing most people remember Gerald Ford's presidency for was that he pardoned Nixon. So, you know, I, I think that just illustrates how, you know, the country [00:37:00] didn't move on, um, by, uh, the pardon. It just extended the Watergate story into the Ford presidency, and I think it was both self-defeating for Ford and also, you know, wrong.

Andrew: For the country. I mean, you, you described that process as, as shambolic, I think, you know, just the pardon process, and I mean, what was the most surprising? Was it just this fact that Ford didn't really go out? He, he showed no savvy in terms of just polling or, you know, the, the trial balloon was maybe not a, a well , uh, understood concept back then, but just what was the most jaw dropping in your mind in terms of how they handled it?

Jeffrey: Well, I, I, I guess. Ford, whom I regard as a deeply, um, honest and honorable man. Um, was a former football player and one of the things that he valued was being a team player. I mean, he really cared about, um, you know, not [00:38:00] sabotaging Nixon during the eight months. He was invi, he was vice president, so he did a couple of things.

He never . Um, spoke out on Watergate as, as vice president. He never even learned the facts of Watergate and he didn't learn the legal issues and, uh, uh, surrounding the resignation of Nixon. Um, I. Until literally days before, uh, Nixon left office. So he was really unprepared, uh, for the issues that that came before him.

And, and the most, the most important of which, which is largely forgotten today, was the fate of the tapes and the presidential records that Nixon had. You know, in, in 1974, there was a tradition that presidents, uh. Owned, uh, all their records as president. Um, and that they could take them with him. And, and, and that's something that they, that many of them did.

I mean, [00:39:00] Lyndon Johnson took them all, uh, with him to Texas, but it was never a law. It was just, it was just a tradition. And Ford was confronted as soon as he became president with the issue of the White House tapes. Mm-hmm . And all the White House documents that were the subject of . Continuing investigations and a, and a trial, and he had no idea how to deal with that.

And four, and, and Nixon from California was screaming at him through Alexander Hague, send me my documents, they all belong to me. And Ford had no context for dealing with this, and it was one reason. He kind of panicked and issued the pardon, hoping to make all these issues go away. They didn't go away.

And Congress ultimately passed laws that said the papers no longer belong to the President, uh, personally, but, but Ford's desire to be a team player and not engage with Watergate at [00:40:00] all as vice president really cost him once beca, once he became president, changing the, you know, switching the lens back to the

Comparing Presidential Pardons

Murray: Maybe more present, present times you criticized President Biden's pardon of his son, hunter, suggesting it will leave a lasting mark on his record. And how do you see this action in comparison to Ford's? Pardon? Of Nixon or Trump's pardon of the January 6th defendants, some of whom have, as we talked about earlier, histories of violent offenses, or were convicted of seditious acts.

Jeffrey: It's funny, you know, the, the, um, the Ford, pardon? Of Nixon, uh, hunter Biden. Pardon? The January 6th. Pardon? The short answer is they're all bad, as far as I'm concerned, but they're all bad in different ways. Even though under the constitution, clearly the presidents had the right to, to issue all those pardons.

The, the Hunter Biden. Pardon? It's, again, it's worth remembering the context. Hunter Biden had been convicted of felonies in, in, um, [00:41:00] Delaware. He pleaded guilty to crimes in California and he was awaiting sentencing. Now. Biden said in President Biden said, you know, he's been singled out and unduly harshly dealt with.

You know, I don't know if that's necessarily true. I mean, the fact is that yes, the federal, the Feds came down hard on hide Hunter Biden, but they came down. They come down hard on a lot of people, and Hunter Biden was guilty. Hunter Biden was guilty of those crimes, and he deserved to be sentenced for them.

And the only reason he wasn't sentenced for them is because his father was president of the United States. And, and I think that is not the way the system is, is supposed to work. And, and it, it just contributes to the kind of cynicism that, um, you know, insiders get special consideration. Um. The January [00:42:00] 6th pardons, I think, are much more egregious because the crimes were worse.

Um, and, um, the justification was, was, was, was even weaker. But again, it's, it's a reward to the president's supporters by the president. And again, going back to the 18th century . This is what the parliamentarians were worried about with pardons, that, that it would be used as a weapon in, in a political manner rather than a dispensation of mercy.

And, um, both the, the Hunter Biden pardons and the January 6th pardons, um, are illustrations of that. The other thing, just in a simple political, uh, . Realm. You know, I, I think the January 6th pardons were much worse than the Hunter Biden. Pardon? But Biden allowed Trump and his supporters to engage in this false equivalency that, well, you know, it's [00:43:00] all the same.

Um, I. And, and you know, I don't think it was the same, but that was another problem with the part. Yeah. Yeah. And I, I, I, there was a, another phrase I picked out, uh, from your, uh, from your book and, and this I think is, is relates to what you just stated about the false equivalencies. You said, indeed Trump put Nixon to shame in shamelessness, which I thought was a great, uh, a great quote and I think, I think sums up what you've just said to us right now, is that Yeah.

Is that we, yeah. There's degrees. Totally, totally agree. Great phrase, 

Andrew: Jeff. Thank, thank you so much for doing this. 

Teaching Trial Advocacy at Harvard

We just had a few, uh, extra questions though, uh, outside, outside this book. Um, uh, our, our podcast is about law and storytelling and, um, I noticed that, um, on your, uh, profile that you are, um, an instructor in trial advocacy workshop at Harvard Law.

What. What, what is that about? What do you, what do you, what do students learn? It's, whatcha trying to emphasize [00:44:00] it. 

Jeffrey: It's a, um, um, it's a really great course at Harvard, which I took, uh, when I was a student there back in the day. And, you know, it's, it's, it's carried forward and, you know, unlike most law school.

Uh, classes, um, it's very grounded in, you know, practical skills and in terms of, you know, how do you do a direct, how do you do a cross examination? How do you, how do you, how do you sum up and the students are given, um, you know, materials for hypothetical cases. And, and I hasten to add, um, I, I was not. You know, asked to be an instructor there because I was some great trial lawyer, although most of the other faculty are in fact great trial lawyers.

Mm. I was there because, you know, I had, I had been an assistant US attorney. I had tried some cases, but for three decades as a journalist, I've watched a lot of great trial, uh, lawyers in action. Um, and, um, you know, one, one of the things that's really fun [00:45:00] about it is that, you know, you see . Um, how. Trying a case is, is a real skill.

Mm-hmm . And there, there are things, there, there are things to learn. Now there are different ways to be good at it, but, um, it, it, it's, it's a lot harder than it looks and it's really fun, um, to see these students who are obviously all very intelligent. But, you know, no one teaches you how to do a direct examination in college.

Yeah. No one teaches you, you know, how to avoid asking leading questions. Or, or to ask only leading questions in a, in a cross examination. And you know, obviously you can only learn so much in a month long case, but I think the students gain a real appreciation for, um, a lot of the skills that, that you need.

Final Thoughts and Future Projects

Murray: So, kind of wrapping things up here, um, if there's one message. That you hope today's readers will take from the book? 

Jeffrey: What is it [00:46:00] it, it, it that your question reminds me of? Um, you know, when I've worked on magazine articles, uh, the fact checkers, um, uh, tend to be young and earnest and, and you know, you write a high profile story and, and a fact checker will say to you, you know, what do you think's gonna happen when your story comes out?

And I, my, my reaction always is people will read it and they'll go. Interesting . I mean, I, I don't have, uh, illusions, um, that, that my work, uh, changes the world. I, I, you know, I, I think, uh, people, I. We'll get a better idea of how pardons can be used and misused, but I, I, I swear to you, I don't have a, uh, ideological agenda for, for change.

Uh, as a result. I think just people find it an an interesting story and, and as my great editor pointed out, it is a story. It's a, it's a narrative, [00:47:00] and that's something that I, as a reader. Always like, and I think you know this story, this book has one too. It's narrative nonfiction at its best. I mean, it reads really, you know, fast and, and you learn so much and it's, and it's really well written, so.

Murray: What's, what's next? What's, what's the next book? What's in the hopper? 

Jeffrey: You know, I, um, I've never been able to work on more than one book at at once. I have no objection to it, but I, I've never, I, I just have never found two book topics at the same time. You know, fortunately I am, um, I, I'm now an opinion writer for the New York Times, so I'm, you know, ri writing, writing opinion pieces, but, um,

I, I'm looking for a book topic. I've got various, um, you know, there, there are, um, a a couple of, uh, Hollywood projects I'm involved in, which I hope come to fruition, but, uh, I, I am, I'm always looking for a new book topic, but I don't have one yet. Jeffrey [00:48:00] 
 
 

Andrew: Jeffrey Toobin, thank you so much for being on the podcast. We really appreciate it.

Jeffrey: Thanks for having me.

Murray: Wow. That was, uh, a great conversation. Uh, Jeffrey Toobin, uh, delivered, uh, in, uh, in, in in wonderful ways, uh, for us on, in this, in this conversation. And your point you made earlier about, uh, about a narrative here is, is spot on. Um, he finds a way to take, uh, piece of history. And take us back to the back, back to the start and take us all the way up to almost as fresh as today's headlines with what's going on with the Trump administration and the recent Biden, uh, pardons and, uh, and somehow managed to, uh, deliver it to us through the metaphorical lens of the ill-fated evil Knievel jump over Snake River, canyon , uh, in 1974, which I thought was a, uh.

Uh, a really smart and cool way to, uh, sort of create a metaphorical [00:49:00] equivalency, if you will, uh, about what was going on at the time, both politically and, and sort of a popular culture. Um, but. What did, what did, what did you think? 

Andrew: Uh, well, yeah, I mean, it was a great conversation. I think one of the things I'll take away though is just is, uh, this notion that, um, you don't really know everything there is to know about a story.

And so the idea to, to reexamine, which we, we, we, we do here stories is so important. Um, we need to keep telling these stories, um, and, and keep. Deepening our understanding of history, um, just because you think you know something, you probably don't. And, and I think, um, this book proves that point. Um, we, we, we thought we knew the story, but, but there was just so much to tell and it's a good lesson for, for, for storytellers that, um, just because people think they know it doesn't always make it so.

Murray: Yeah, without a doubt. And, uh, I think, I think we've seen that if, if [00:50:00] there's a thread that we pull through in all of the different podcasts that we've done thus far, is that the, the, there's the, there's the surface story that we all have heard about and then, and then there's the, the real story. What's really, what's really going on.

Not that there's deception in there, but it's always, always more complex. And so I think this was a great way for us to start out, uh, this new season of reexamination. Uh, always a pleasure, Andrew. And, uh, we'll, uh, we'll, we'll do this again real soon. 

Andrew: Bye-bye.