David R. Henderson  

The Nixon Pardon: Incentives Matter in Politics Too

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In this weekend's Wall Street Journal, Ken Gormley and David Shribman celebrate the 40th anniversary of President Ford's pardon of Nixon. The piece is titled "The Nixon Pardon at 40: Ford Looks Better Than Ever." They give basically three arguments:
1. By pardoning Nixon, Ford got Nixon to admit his guilt.
2. Ford made a deal with Nixon that in return for the pardon, Ford would keep Nixon's papers rather than send them to Nixon's residence, where there's a good chance that they would have been shredded.
3. Although the American public was strongly against the pardon at the time, 12 years later, they were strongly in favor.

All 3 arguments above are (probably) correct. Certainly the third one is correct. Even if correct, are they enough? I don't think so.

The authors don't do a thorough cost/benefit analysis. They do only a benefit analysis. They ignore all the costs, except to Ford's own electoral prospects.

But there were big costs. Here's what I wrote after Ford died:

One of the late Gerald Ford's favorite sayings during his first few weeks of office was that he was "a Ford, not a Lincoln." Ford meant it as a statement of his humility. Ford's humility was, in fact, one of his best character traits. But in pardoning Richard Nixon a month after becoming president, Ford showed himself to be very much like Lincoln. And in doing so, Ford set a bad precedent, making it easier for future presidents to break the law and to abuse the power of the presidency because he had increased the probability that they would not be held to account.

The first day of my economics classes, I lay out what I call "The Ten Pillars of Economic Wisdom." Pillar number two is that incentives matter - incentives affect behavior. I point out that we tend to engage in behavior that is rewarded and to avoid behavior that is punished. Reward some bad behavior and refrain from punishing it, and you will get more of that behavior. That is why Ford's decision to pardon Nixon was so destructive. It sent a strong signal that future presidents would not be made legally accountable for their behavior. And in making that decision, Ford did his part to contribute to "the imperial presidency."

An excerpt:
In paragraphs 1 through 7 of Ford's speech, not quoted here, he talks about the laws, the uncertainties about what Nixon had done, and Ford's obligations under the Constitution. They also contain a zinger that would have made a Ted Kennedy speechwriter blush. Kennedy, in his speech after Chappaquiddick, had only enough gall to say that his causing Mary Jo Kopechne to drown was a bad experience for the Kennedy family ("The last week has been an agonizing one for me, and for the members of my family;"). Ford's made the plight of Richard Nixon the plight of the whole country. Ford stated, 'Theirs [the Nixons'] is an American tragedy in which we all have played a part." Gee. I didn't know I had played a part. In 1973, I was a summer White House intern with Nixon's Council of Economic Advisers; maybe I did something in my sleep.

And the predictable consequences of presidents knowing that virtually whatever they do, they are extremely unlikely to go to prison for it:
And what have been the consequences? Look at our current president. One of the most striking passages in Bob Woodward's Bush at War and also one of the more believable passages is the following statement that Woodward quotes Bush as saying:

"I'm the commander - see, I don't need to explain - I do not need to explain why I say things. That's the interesting part about being president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation." (pp.145-146.)

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COMMENTS (10 to date)
AS writes:

I agree that politicians respond to incentives (and I'm not sure that anyone would disagree). But I don't think the prison time actually matters that much as a disincentive in this context (i.e. the disincentive cost of the pardon is small). Nixon was forced to resign in disgrace, and 40 years later "Watergate" is the first thing that people think about when Nixon is mentioned. His very real accomplishments (opening up relations with China, winning re-election in a huge landslide, etc.) pale in comparison in the popular memory.

If I'm a politician contemplating abusing my political power, that scares the bejeezus out of me. Most politicians seem to be motivated by status type concerns (being popular, "leaving a legacy", etc.). And what happened to Nixon massively lowers my status. No matter how popular I once was or what enduring contributions I made, people will always think of me as an abuser of power. That's a huge disincentive to me on its own, regardless of whether or not I have to go to jail for it too.

Obviously jail time itself is a disincentive, but I think that the reputation effect is much stronger. So this is a case where adding jail time changes the disincentive from something like -1000 utils to -1050 utils. Maybe there is a marginal politician somewhere who is happy for his name to be mud as long as he doesn't have to do 5 years in a minimum security prison, but I would wager that those types are rare enough for the cost of the Nixon pardon to be small.

What did Richard Nixon do that would have justified criminal charges being filed against him?

LD Bottorff writes:

This all speculation. I can just as easily speculate that, had he known that he would face jail time, Nixon might have taken actions that would have been more damaging to the country in order to stay in office. Imperial presidency? Did Nixon defy the Supreme Court the way Andrew Jackson did? Did he take us into a war that he promised to keep us out of the way Wilson did?

No, the cost of the pardon was small, if anything.

Some say "No justice, no peace." I say that if everyone keeps fighting until their sense of justice is satisfied then we will never have peace.

Roger Koppl writes:

Glen Greenwald says something similar in his book "With Justice for Some." I strongly recommend the book.

Nathan writes:

This reminds me of an article I once read arguing that we should always grant amnesty to oppressive third world dictators. The idea was that if a dictator knew that resignation meant a cushy exile, as opposed to execution, he'd be more likely to step down in the face of protests and rebellion, rather than fighting to the bitter end and plunging his country into a bloody civil war. No doubt, this is true. But it missed the other half of the equation. A wannabe dictator is far more likely to make a grab for power and overthrow the current regime if he knows that he needn't stay in power for life to ensure a good outcome. A few years of looting the treasury until the people become sufficiently restless, and then slip off into exile with your ill-gotten millions as another would-be dictator takes your place. Lather, rinse, repeat. If you knew that getting ousted from power meant getting hanged like Saddam Hussein, or brutally stabbed and sodomized to death like Muammar Qaddafi, you might be less inclined to become an evil dictator in the first place.

Tom West writes:

I understand the point about incentives, but quite frankly, I doubt the rationality of anyone who goes into a contest like politics where the odds of success are so very small.

The rationality that would allow a president to actually internalize the possibility that they could go to *jail* for their corruption is the same rationality that would have pushed them away from risking all for some slim shot at the presidency in the first place.

Lorenzo from Oz writes:

A benefit not considered: the pardon encourages disastrous chief executives to leave office rather than hang on and "double up".

Andujar Cedeno writes:

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Dick White writes:

Count me as anti-imperial presidency. That said, David is a little hard on President Ford.
The pardon was for crimes that "might have been committed" since Prosecutor Jaworski had not charged Nixon with obstruction of justice (perhaps among other things).
Of course this pardon does make it easier for subsequent presidents to include a predecessor in the President's periodic exercise of his pardon authority. Yet that is hardly an incentive for the post-Ford president to act criminally. His liberty (and reputation as others have observed) is at stake and even the cavalier Bush (see David's quote) only commuted Scooter Libby's sentence for a "crime" that subsequent events would indicate a pardon to be the more appropriate action.
With so many variables in play and one's liberty at stake, the Ford precedent, though technically a cost, appears, modest.

Daublin writes:

I don't know, guys. I believe a high-level politician would rate going to jail as a substantial disincentive. If you are out of jail, you can defend your reputation day after day, in one social event after another, and you can accumulate a circle of friends who are just going to overlook the past. After all, politicians always have enemies, and that goes double for politicians who make bold moves.

In jail? Everyone will call you a loser. Your own family will slip away. Jail is a severe penalty for a status seeker.

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