To Try a President
Updated at 1:05 p.m. ET on February 9, 2021.
Organizing my files recently, I came upon an unpublished article by my father, Harry Kalven Jr. It was the last piece he wrote before his death in 1974. I had forgotten that it existed. Reading it now, 47 years after he wrote it, is an uncanny experience, for it speaks with singular clarity and force to a central question of the moment: How should the legal system respond to crimes that a former president may have committed while in office?
A law professor at the University of Chicago, my father was an expert in several fields—torts, taxation, empirical research on legal institutions—but his consuming passion was the First Amendment. After suffering a heart attack in 1969 at the age of 55, he reordered his priorities and began to work on a book he had conceived of early in his career but had long deferred: an intellectual history of the Supreme Court’s encounters with the First Amendment. “The book,” he told me, “I’ve always wanted to write.”
Each summer, he would take his growing manuscript with him on the family’s vacation to Martha’s Vineyard. Sitting at the edge of Chilmark Pond, he would read through what he had written and make notes in the margins—sketching revisions and additions, challenging the text, flagging matters he wanted to think about further.
In mid-August 1974, his summer idyll was interrupted by an assignment from The New York Times Magazine. Facing certain impeachment, President Richard Nixon had resigned on August 9, and Gerald Ford had assumed the presidency. At this uncertain and unresolved moment, the magazine asked my father to write an article assessing the merits of trying Nixon for his alleged crimes while in office.
On a short deadline, my father responded with a remarkable burst of analytic energy. The New York Times Magazine accepted the article and scheduled it for publication in the September 15 issue. Then, on September 8, President Ford pardoned Nixon, and the magazine pulled the article.
My father died later that autumn, leaving behind a 1,200-page first draft of his First Amendment book. Guided by his marginalia, I spent more than a decade editing and completing the manuscript, which was published in 1988 under the title A Worthy Tradition: Freedom of Speech in America.
The surfacing now of the 1974 article, published for the first time below exactly as my father wrote it, is akin to opening a time capsule. As the country considers the legal fate of Donald Trump, the immediacy of my father’s voice—“speaking to us, out of the past, in the present tense,” as I put it in the introduction to his book—is bracing. And his words give rise to a question about the state of our polarized, reflexive political culture: Could an analysis of comparable rigor and generosity, sustained by comparable confidence in the capacity of the legal system to navigate a labyrinth of competing values to a tolerably just result, be written today?
— Jamie Kalven
Should Mr. Nixon Stand Trial?
TRichard Nixon should stand trial for his role in the Watergate break-in and cover-up is complicated, unfortunately for him, by its intimate involvement in the continuing desire and need of the American people for an accounting and judgment on the case. For the past two years, our society and its institutions had been grinding slowly but inexorably toward a final determination, and though Mr. Nixon’s forced resignation amounted to a
