AILSA CHANG, HOST:
All right, we're going to turn now to a former federal prosecutor who has looked over Michael Cohen's plea deal. She also sat in on much of the trial of Paul Manafort, President Trump's former campaign chairman. Barbara McQuade is the former U.S. attorney for the Eastern District of Michigan. Welcome.
BARBARA MCQUADE: Thanks, Ailsa, glad to be with you.
CHANG: So let's start with this extraordinary admission today from Michael Cohen. He directly implicated President Trump when he said in court today that he worked with Trump to keep two women silent before Election Day. What kind of legal risks do you think this could carry for the president?
MCQUADE: Well, I think if it can be shown that President Trump knew what was happening - and it sounds based on what Michael Cohen had to say that he himself could be exposed to the same crime that Michael Cohen pleaded guilty to today. And so, you know, whether he would be charged in an indictment for that crime I think is unlikely in light of the fact that many experts agree that a sitting president cannot be charged in an indictment. So...
CHANG: No. It's still as a constitutional matter in dispute whether a sitting president can be indicted, right?
MCQUADE: It is. It is matter of dispute. And so if - you know, I think the special counsel at least would follow - I know a U.S. attorney would likely follow the Department of Justice guidance on that, which currently says that the sitting president cannot be indicted. And so then the remedy becomes impeachment. And is this the kind of offense for which the House of Representatives would decide to impeach? So in many ways, it still becomes a political question as opposed to a legal question.
CHANG: I mean, if impeachment comes into play, if we're talking about high crimes and misdemeanors, what happens when we're talking about conduct that happened allegedly before Trump was even elected president?
MCQUADE: Yeah. You know, that still doesn't matter because the idea behind this policy not to charge a sitting president isn't so much whether it occurred before or during his presidency...
CHANG: Oh, I'm speaking about impeachment.
MCQUADE: Right. It is that the impeachment - oh, I think it could be grounds for impeachment if it's a conspiracy that continued into his presidency. He's continued to deny it. He's continued to perhaps obstruct justice about it. And so I think that it's still the kind of thing for which there could be grounds for impeachment. As to the criminal charges, again, scholars disagree on whether you can charge a sitting president.
CHANG: Right.
MCQUADE: And the idea is that they're just too busy running the country to have to deal with criminal charges while they're sitting in office.
CHANG: OK, let's turn to Paul Manafort now. The judge declared a mistrial on 10 of the 18 counts he was facing. The other eight were convictions. But on those 10 where there was a mistrial, if you were still a federal prosecutor, would you bring those charges again?
MCQUADE: No, I think I would be quite satisfied with the eight charges of conviction. You know, Manafort has now been convicted of felonies. And the sentencing guidelines on those are going to be substantial. So I don't think I would. I don't think it's worth the effort in light of this case as well as the case that's pending in the District of Columbia. I think...
CHANG: Right. The trial there's happening next month.
MCQUADE: Yeah. I think the sentencing exposure will be substantial. And one interesting fact is that the judge could still impose a sentence that includes the conduct in those other counts.
CHANG: Oh, really?
MCQUADE: The law allows a judge to impose sentencing if the conduct - if he finds by a preponderance of the evidence that that conduct was committed. Of course the jury was looking for guilt beyond a reasonable doubt.
CHANG: Right.
MCQUADE: And so if the judge is satisfied that he finds preponderance of the evidence, he could impose a sentence that includes that. The sentence in a case like this is largely a function of the dollar amount involved in the tax violations and the fraud violations. And so you could - as I've sort of calculated it loosely, I see six to eight years of time based on what he was convicted of. And if they were to add the additional charges, I think they could get up to eight to 10 years. But I think they could get it anyway without bringing those charges again for a trial.
CHANG: All right, Barbara McQuade is a former U.S. attorney. She now teaches law at the University of Michigan. Thank you very much.
MCQUADE: Thank you, Ailsa. Transcript provided by NPR, Copyright NPR.
