Page:Impeachment of Donald J. Trump, President of the United States — Report of the Committee on the Judiciary, House of Representatives.pdf/80

 When one or more of these red flags is present, there is reason to doubt that the President's account of his motives is accurate. When they are all present simultaneously, that conclusion is virtually unavoidable. Thus, in examining the President's motives as part of an impeachment inquiry, the House must test his story against the evidence to see if it holds water. If it does not, the House may find that he acted with corrupt motives—and that he has made false statements as part of an effort to stymie the impeachment inquiry.

E.Attempted Presidential Misconduct Is Impeachable

As a matter of settled constitutional law, and contrary to recent suggestions otherwise, attempted Presidential wrongdoing can be impeachable. This is clear from the records of the Constitutional Convention. In the momentous exchange that led to adoption of the "high Crimes and Misdemeanors" standard, Mason championed impeaching Presidents for any "great and dangerous offenses." It was therefore necessary, he argued, to avoid a narrow standard that would prevent impeachment for "attempts to subvert the Constitution" (emphasis added). Then, only minutes later, it was Mason himself who suggested "high Crimes and Misdemeanors" as the test for Presidential impeachment. The very author of the relevant constitutional text thus made clear it must cover "attempts."

The House Judiciary Committee reached this conclusion in President Nixon's case. Its analysis is compelling and consistent with Mason's reasoning:

"In some of the instances in which Richard M. Nixon abused the powers of his office, his unlawful or improper objective was not achieved. But this does not make the abuse of power any less serious, nor diminish the applicability of the impeachment remedy. The principle was stated by Supreme Court Justice William Johnson in 1808: "If an officer attempt[s] an act inconsistent with the duties of his station, it is presumed that the failure of the attempt would not exempt him from liability to impeachment. Should a President head a conspiracy for the usurpation of absolute power, it is hoped that no one will contend that defeating his machinations would restore him to innocence." Gilchrist v. Collector of Charleston, 10 F. Cas. 355, 365 (No. 5, 420) (C.C.D.S.C. 1808)."

Adhering to this legal analysis, the Committee approved articles of impeachment against President Nixon that encompassed acts of attempted wrongdoing that went nowhere or were thwarted. That includes President Nixon's attempt to block an investigation by the Patman Committee into the Watergate break-ins, his attempt to block testimony by former aides, his attempt to "narrow and divert" the Senate Select Committee's investigation, and his attempt to have the IRS open tax audits of 575 members of George McGovern's staff and contributors to his campaign, at a time when McGovern was President Nixon's political opponent in the upcoming 1972 presidential election.