Where is the Republican Party of Barry Goldwater when we need it?

Presidents Richard Nixon and Donald Trump both committed a cardinal sin against the Constitution: They abused the powers of the presidency in unconstitutional attempts to affect the outcome of their elections. In Nixon’s case, it was done during the election and in secret. (Ironically, Nixon engaged in unlawful behavior against his opponent in an election that he was destined to win without presidential abuse.) Trump did it in public and after he had lost a constitutionally legitimate election. Both were Republican presidents. Their party was the key to Nixon’s resignation — and apparently will be the key to Trump’s escape from accountability.

It is worth revisiting the Republican Party’s laudable role in the events that led to Nixon’s resignation. It was a long road that began in February 1973, with a 77-0 vote in the Senate for the appointment of what came to be called the Senate Watergate Committee that started the congressional inquiry into Nixon’s conduct. Yes, you read that right: All of the Republicans who voted supported the investigation of a Republican president. Then, a year later, the House of Representatives voted 410-4 to authorize the Judiciary Committee to conduct an impeachment investigation. Once again, the Republicans overwhelmingly supported this investigation. 

By July 1974, the Judiciary Committee had concluded its work. It voted out three articles of impeachment, two of which carried with strong Republican support. Six of the 17 Republicans voted for the first article alleging abuse of power. Seven Republicans voted in favor of the second article claiming that Nixon had disregarded his duties to faithfully execute the laws. Both articles gained “super-majority” support, 71 percent and 73 percent, respectively. The third article, directed at Nixon’s refusal to produce documents, passed by just a majority of the committee, with most Republicans and two Democrats voting against it.  

And this was before the secret White House tapes had been turned over to the committee as a result of the Supreme Court’s July 24th order in United States v. Nixon. At this point, the Republican congressional leadership stepped in. On Aug. 7, Sen. Barry Goldwater (R-Ariz.) led a contingent of Republican leaders to the White House to tell the president he would be impeached by the House and convicted in the Senate. Goldwater reportedly told Nixon, “I took a kind of nose count today and I couldn’t find more than four very firm votes [for acquittal].”  Nixon resigned the presidency on Aug. 9, before he was impeached by the full House, and skulked off the national stage to live in infamy as a private citizen.

Contrast that with the Republican Party of today, a significant portion of which has sold its soul to a man who disdains the very Constitution that gives them the right to represent the American people. There is no need to repeat the well-known facts of Donald Trump’s refusal to accept the results of an election that Joe Biden won by more than the result Trump called a landslide in his favor in 2016. Trump’s words and actions culminated in the horrific events of Jan. 6 in the U.S. Capitol. 

We all know that Trump used the bully pulpit of his office to sell the lie that he won reelection, and that the 2020 election was stolen from him by massive fraud, which no court has credited. Then-Senate Majority Leader Mitch McConnell (R-Ky.) called out the lie after the Electoral College voted on Dec. 10, when he recognized the obvious — Biden won the election, fair and square. 

There is no question that Trump has committed impeachable acts that exceed even those that prompted the Republican Party to abandon Richard Nixon. As Rep. Liz Cheney (R-Wyo.), the third-ranking member of the House Republican leadership, put it: “There has never been a greater betrayal by the president of the United States of his office and his oath to the Constitution.” With that said, only 10 House Republicans voted in favor of the article of impeachment that will be tried in the Senate. This is a far cry from the strong Republican support in the House Judiciary Committee for the articles of impeachment against Nixon.

The prospects of holding Trump accountable in the Senate appear dim, in light of the Jan. 26 procedural vote on the constitutionality of trying a former president on impeachment charges. Although the motion by Sen. Rand Paul (R-Ky.) was defeated by a vote of 55-45, only five Republican senators voted against the motion. This means that only five of the 50 Republican senators claim to believe that an impeachment trial of a former president is constitutional. If that line-up holds true to the end of the trial, a “super-majority” of 67 senators for conviction will not be achieved, and Trump will be acquitted.

Trump supporters in the Senate are using the constitutional issue to dodge the ire of the large segment of Republican voters who want Donald Trump to run for president in 2024. They rely on Article II, Section 4: “The President … shall be removed from office on impeachment for and conviction of, treason bribery, or other high crimes and misdemeanors.” They argue that it is clear that removal is the only remedy in the event of conviction in the Senate. Since Trump no longer is president, their argument goes, the removal issue is moot and there should be no trial.

However, you can’t stop there. Article I, Section 3, Cl. 6 needs to be considered: “Judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Although Trump no longer holds office, one of the remedies available to the Senate is his disqualification from holding federal office in the future. The question of the availability of that remedy will not be moot. Reading Article II, Section 4 and Article I, Section 3, Cl. 6 together, and based on the deliberations at the Constitutional Convention and other historical materials, most constitutional scholars (and apparently 55 senators) conclude that it would be appropriate to try Donald Trump in order to vindicate the constitutional disqualification remedy. 

The trial would feature a two-step process. First, the Senate would determine by a two-thirds vote whether he should be convicted of the charges levied in the article of impeachment. Then, if Trump is convicted, the Senate would consider, as a separate matter, whether he should be disqualified from running for president again. Although it doesn’t say this in the Constitution, there is wide acceptance that the disqualification issue would be decided by a simple majority.

At bottom, the Framers saw the impeachment process as a necessary protection against those government officials whose egregious breach of the public trust proves them to be an unacceptable threat to the well-being of the republic. In 1974, the Republicans in Congress saw the overwhelming facts that condemned Richard Nixon. They placed country over party, supported his impeachment in the House Judiciary Committee, made it clear that they would vote to remove him from office, and forced him to resign. 

The question for Republican senators today is clear: Will you emulate the Republican Party of Barry Goldwater, placing country over party, and vote based on the facts? Or, will you place your personal political fortunes over the country, ignore the facts, and let Donald Trump walk away without accountability, free to seek the presidency again?

Scott Barker is senior counsel at Wheeler Trigg O’Donnell LLP in Denver, Colo., a veteran with service as a military intelligence officer, and a fellow of the American College of Trial Lawyers. He has authored two books on impeachment: “Impeachment A Political Sword” (2018) and “The Impeachment Quagmire: Military Intelligence Officer Turned Attorney Unravels Mueller Report” (2019).