Myth 6. Because Trump was unsuccessful in ending the investigation, he couldn't have obstructed justice.
RESPONSE: The report finds substantial evidence that Trump asked McGhan to fire Mueller. McGhan said he was prepared to resign rather than comply. Because the law punishes attempts, Trump's effort to end the investigation constitutes obstruction of justice, even though McGhan did not follow through on the order. In addition, Mueller found that all elements of obstruction were satisfied with regard to Trump's efforts to limit the investigation to future elections: Trump directed then Attorney General Jeff Sessions to 'unrecuse' himself from the investigation and to publicly announce that the investigation would focus only on future elections. If successful, this effort would have prevented us from learning the truth about Russia's efforts to attack the 2016 election.
Myth 7. A President cannot obstruct justice as a matter of law when he is exercising executive power.
RESPONSE: Mueller found that this theory, advanced by Barr in an unsolicited 19-page memo before he became Attorney General, was inconsistent with the law the Constitution and the foundational notion of separation of powers. The Constitution requires not just that the President execute the law, but also that he do so "faithfully." As Mueller and his team stated, subjecting the President to obstruction [of the] law is consistent with the principle of our government that "no person in this country is so high that he is above the law." Even under Barr's theory, a President commits illegal obstruction when he engages in conduct that is outside his executive power, like directing a witness to create a false document, as Mueller found that Trump did with McGhan.
Myth 8. Mueller wanted Barr to make the call on whether Trump committed obstruction.
RESPONSE: Mueller didn't invite Barr to make a decision about prosecuting obstruction. He left it to prosecutors who could decide whether to pursue charges after Trump left office and to Congress, which has impeachment power. Barr's peremptory dismissal of obstruction happened with no explanation of how he was able to resolve the evidence of obstruction when Mueller could not. Since then, more than 1,000 former federal prosecutors, including us, have signed a letter stating that the evidence establishes multiple counts of obstruction of justice.
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