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Profile: Benton Becker
Benton Becker was a participant or observer in the following events:
Richard Nixon’s presidential documents—46 million pieces of paper and 950 reels of recording tape—are being packed up in boxes and stored throughout the White House, the Executive Office Building (EOB), and other locations. The question is, should all the materials be turned over to Nixon, as he insists, or retained for evidence in upcoming Watergate trials? President Ford wants to stay out of the dispute. Ford’s staff learns that White House aides still loyal to Nixon are stuffing documents into “burn bags” at an extraordinary rate, and the White House “burn room,” where documents are chemically destroyed, is overflowing, with cartons of documents stacking up in the halls. Ford orders his staff to guard the materials and prevent them from being destroyed or removed. Unfortunately, the problem is not so easily resolved. Ford’s staffers are working out of the EOB, and Nixon’s people command the West Wing, where they show little inclination to obey any directives from Ford’s people. One of Ford’s attorneys, Benton Becker, tries to prevent Army soldiers from loading a truck with boxes full of Nixon materials; the truck will convey the materials to Andrews Air Force Base, where they will be flown to California. When Becker tells the colonel in charge that Ford has ordered the documents to remain, the colonel retorts, “I take my orders from General Haig” [Alexander Haig, Nixon’s chief of staff]. Becker tells White House security not to let the truck leave the grounds, and informs Ford, who angrily confronts Haig. Haig denies any knowledge of the situation and says the colonel must be acting on his own, an explanation Becker finds hard to believe. Like it or not, Ford is now involved in the custody battle over Nixon’s documents. [Werth, 2006, pp. 33-35]
President Ford, with Attorney General William Saxbe and Ford’s counsel Philip Buchen, discuss what to do with the ever-accumulating boxes and crates of Richard Nixon’s presidential documents. Mostly stored on the third floor of the Executive Office Building, their weight is so heavy that the Secret Service worries the floor might cave in underneath them. No one is sure how many documents William Gulley, the director of the White House military office, managed to spirit out to the Nixon residence in California (see August 8, 1974), but the White House tape recordings and most of the important documents remain in White House custody. Ford wants to be rid of the documents once and for all, but he has so far yielded to the advice of his lawyers to keep them. Ford’s attorney Benton Becker will later write, “I suggested to President Ford, not too diplomatically… that American history would record his transmittal of the records and tapes to California as the final act of the Watergate cover-up—an act initiated and carried out by Gerald Ford.” Ford asks Saxbe to get a firm legal opinion on exactly who owns the Nixon files, Nixon or the government. [Werth, 2006, pp. 157-158]
President Ford assigns attorney Benton Becker to find out what the technicalities of a presidential pardon are. Among Ford’s questions: Can a president pardon someone before that person is indicted? Would it stop a conviction if issued after an indictment but before jury deliberations? Does a pardon need to cite specific crimes, or can it be for across-the-board violations of the entire US criminal code? Would it affect charges brought by individual states or communities? In light of some senators’ push for Richard Nixon’s impeachment even though he has already resigned, would it stop an impeachment proceeding? “What does a pardon really mean?” Ford asks Becker. “Am I erasing everything he did, as if it never occurred? Does a pardon erase a criminal act or does it only erase criminal punishment?” [Werth, 2006, pp. 248-249]
Researching the legal and technical aspects of presidential pardons (see August 30, 1974), Benton Becker, President Ford’s lawyer, finds that they only apply to federal crimes, meaning, for example, that Richard Nixon can still be prosecuted for crimes in California arising from his connections to the Ellsberg burglary (see September 9, 1971). It would not affect a Senate impeachment trial, even though the possibility of that happening is increasingly remote. Becker finds two legal references of particular use in his research: the 1915 Supreme Court case of United States v. Burdick, which attempted to answer the fundamental question of the meaning of a presidential pardon; and an 1833 quote from the first Chief Justice of the Supreme Court, John Marshall, who wrote, “A pardon is an act of grace… which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” Becker determines that such an “act of grace” is an implicit admission of guilt. Unlike the proposed conditional amnesty for draft evaders (see August 31, 1974), a pardon will strike convictions from the books and exempt those pardoned from any responsibility for answering for their crimes, but it does not forget (in a legal sense) that those crimes took place. “The pardon is an act of forgiveness,” Becker explains. “We are forgiving you—the president, the executive, the king—is forgiving you for what you’ve done, your illegal act that you’ve either been convicted of, or that you’ve been accused of, or that you’re being investigated for, or that you’re on trial for. And you don’t have to accept this—you can refuse this.” The Burdick decision convinces Becker that by pardoning Nixon, Ford can stop his imminent prosecution, and undoubted conviction, without having to condone Nixon’s crimes. For Nixon to accept a pardon would be, in a legal sense, an admission of criminal wrongdoing. [Werth, 2006, pp. 263-265]
Richard Nixon’s lawyer, Jack Miller, has prepared a “deed of trust” for Nixon’s presidential documents and tapes. According to the proposal, Nixon and the government will share ownership, and the files will be available for court subpoenas for up to five years. Two keys will be necessary to access the material, with Nixon retaining one and the General Services Administration (GSA) retaining the second. Miller is not sure Nixon will accept the plan, but he presents it to President Ford’s lawyers Benton Becker and Philip Buchen. (Nixon has another reason for wanting to retain control of the documents; his agent, Irv “Swifty” Lazar, is peddling a proposal for his biography to publishers, with an asking price of over $2 million. The documents will be a necessary source for the biography.) Buchen tells Miller that Ford is considering pardoning Nixon (see August 30, 1974). Miller is not sure Nixon wants a pardon, with its implication of guilt (see September 2, 1974). Miller has had trouble discussing Watergate with Nixon, who does not want to discuss it and certainly does not want to admit any guilt or complicity in the conspiracy. Becker says that the entire issue of Nixon’s pardon, and the concurrent question of the Nixon files, has to be resolved quickly. [Werth, 2006, pp. 280-281]
President Ford and his lawyer, Benton Becker, discuss pardoning Nixon. [Source: David Hume Kennerly / Getty Images]President Ford authorizes his attorney, Benton Becker, to tell Richard Nixon, “It’s not final, but in all probability a pardon will be forthcoming.” Ford agrees not to seek a decision on Nixon’s presidential files (see September 4, 1974) as a condition for a pardon; however, a statement of contrition (if not an outright admission of guilt) is something Ford and his advisers want from Nixon in return for a pardon. As Becker prepares to leave for California to meet with Nixon and his lawyer, Ford tells Becker to carefully judge Nixon’s physical and mental health. As for the records, Becker will later recall: “We walked out of the office; [Ford] had his hand over my shoulder, he said, ‘I will never, ever give up those records. They belong to the American people. You let President Nixon know that I feel very strongly about this.’” [Werth, 2006, pp. 293] When Becker arrives in San Clemente, he meets with Ron Ziegler, Nixon’s former press secretary, who now serves as Nixon’s personal aide. Ziegler tells Becker, “I can tell you right now that President Nixon will make no statement of admission or complicity in return for a pardon from Jerry Ford.” Becker believes Ziegler was forewarned by Ford’s ad hoc chief of staff, Alexander Haig, who has maintained close contact with the Nixon staff since Nixon’s resignation. Ziegler apparently knows that Ford will not insist on either a document turnover or a statement of contrition in return for a pardon, and is toeing a hard line. Angered by what he considers Haig’s intolerable betrayal of Ford, Becker bluffs Ziegler, turning around and preparing to leave without further discussion. The bluff works; Ziegler and Becker discuss the problem until early in the morning hours. [Werth, 2006, pp. 294-295] By the next morning, Becker has overseen a tentative agreement with Nixon’s lawyer Jack Miller and General Services Administration (GSA) head Arthur Sampson. The agreement will “temporarily” store the documents in a facility near San Clemente, under restricted access requiring both Nixon and a GSA official to access the documents, and Nixon retaining control of who accesses the materials. On September 1, 1979, the agreement reads, Nixon will donate the materials entirely to the federal government. As for the tapes, Nixon retains the right to destroy the tapes after five years, which will be destroyed anyway on September 1, 1989, or on the occasion of Nixon’s death, “whichever event shall first occur.” [Werth, 2006, pp. 297-298]
During the careful negotiations over the conditions of Richard Nixon’s possible pardon (see September 5-6, 1974), Nixon aide Ron Ziegler brings up the issue of the “statement of contrition,” and shows Benton Becker, the lawyer negotiating for President Ford, a draft statement. The statement, crafted by a speechwriter, blames the pressures of the office, Nixon’s preoccupation with foreign crises, and his decision to rely on the judgment of his staff, for his alleged involvement. The statement makes no admission of guilt or acceptance of responsibility whatsoever. Such a statement would invite state prosecution of Nixon even if Ford grants him a pardon for federal crimes, Becker notes. Nixon would be better off saying nothing at all than making this statement. A revised statement merely admits that Nixon was guilty of poor judgment. Becker presses for more. A third revision has Nixon admitting that he “can see clearly now that I was wrong in not acting more decisively and more forthrightly in dealing with Watergate, particularly when it reached the stage of judicial proceedings and grew from a political scandal into a national tragedy.” Becker seizes on the word “forthrightly” as an implied admission of contrition and a subtle acceptance of guilt. “The word is a synonym for ‘honestly,’” he will later recall. “That had meaning for me as a former prosecutor, because that meant obstruction of justice.” Ford, contacted by phone about the statement, is not happy with the legal parsing that Becker is trying to stretch into an implied admission of responsibility. Ford will later write, “I was taking one hell of a risk [in pardoning Nixon] and [Nixon] didn’t seem to be responsive at all.” [Werth, 2006, pp. 299-301] Becker finally meets face-to-face with Nixon, who seems to Becker unhealthily aged and almost “freakishly grotesque,” with long, thin arms dangling from the sleeves of his suit. Nixon doesn’t want to discuss Watergate at all, attempting repeatedly to steer the discussion towards football and responding in monosyllables to Becker’s attempts to discuss the details of the forthcoming pardon. After Becker manages to get a grudging, distracted acquiescence from Nixon to the deal, Nixon suddenly turns maudlin. He says Becker has been “a gentleman” towards him, and wants to give him a present. “But look around the office,” he says. “I don’t have anything anymore. They took it all away from me. Everything I had is gone.” Nixon gives Becker the last two bits of presidential memorabilia he owns, taken, he says, “from my personal jewelry box.” They are a presidential tiepin and a pair of presidential seal cufflinks. Nixon is almost in tears, and a distinctly uncomfortable Becker withdraws as graciously as he may. “I just wanted to get the hell out of there,” Becker will later recall. [Werth, 2006, pp. 304-306]
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