Will the Trump Prosecutions Go Away? (with Barb McQuade)
06:44 Share

Hey folks, Eli Honig here. As you may know, we recently launched a second weekly episode of the Cafe Insider podcast, where I'm joined by cafe contributors and other guests to tackle one major legal or policy issue in about 30 minutes.

This week, I'm joined by former U.S. Attorney for the Eastern District of Michigan, Barb McQuaid, to discuss how Donald Trump's return to the White House will impact the rule of law from the Trump criminal cases to the Department of Justice to the Supreme Court and more.

If you're a member of Cafe Insider, head on over to the Insider feed and listen to our full conversation. Listeners of Stay Tuned with Preet remain here for an excerpt from our discussion. To become a member of Cafe Insider and for a limited time get 40% off your membership for the first year, head to cafe.com slash November. That's cafe.com slash November. Now, on to the show. ♪

So let's hit on the state prosecutions. Manhattan's a little complicated because there's all sorts of motions in the sentencing and the Georgia case. I want to talk quickly about the Manhattan sentencing, which is maybe approaching. But first things first, do you see any way constitutionally, practically, realistically that either of these cases can proceed against him, either with a trial or with a trial?

No, but I do think there's one thing that Judge Mershon could do, which is to conduct the sentencing in November, as it is currently scheduled, and choose a sentence of a fine because it's against Donald Trump in his individual capacity. The judge could do that.

There's nothing that says he can't be fined while he is a private citizen. And so I think that's a possibility. In terms of a custodial sentence, I don't think so. You know, the OLC memo, Office of Legal Counsel, part of the Department of Justice, which wrote that opinion about not being able to charge a sitting president. I know there are people who disagree with it. I actually happen to think it's right. But not only do I think it's right and fair,

as a matter of every DOJ component has to follow it as policy, but also the reasoning of it. And if a president is too distracted to defend himself in a criminal case and can't be charged while he is sitting,

then I certainly think he can't also be jailed while he is sitting. So I think the options are fine for now or sentence to time served, no custodial sentence, or defer the sentencing until 2029. How about you? Yeah, I agree with you on a couple of things. So there is a school of thought out there.

good friends of ours. I've had the conversation with Norm Eisen, who we both love. And Norm and I are good sounding boards for one another. And Norm was of the view, this is before the election happened, but we were war gaming this out. And Norm was going, you could still do a prosecution in the state while he's president. There's my Norm. Sorry, Norm. I've done that for you. And Norm was, you know, giving me this reading of the Nixon case and the Paula Jones case. I said, I mean, I'm sure you're right when it comes down to the parsing and the

your interpretation, but there's just no freaking way. There's just no way that we are going to have a state-level trial of the sitting president. So I agree with that. I also want to pick up on the point you made about the OLC memo, which is, I think, needs to get a little more attention. The OLC memo, I think, is

a major or an embodiment of the reason why there cannot be and will not be a prosecution of the sitting president. I actually agree with you. You know, it became very fatty or trendy, F-A-D-D-Y, I meant, but trendy to bash that policy during the Mueller years. And I'm sure I probably did. I'm sure I said, it's nuts. Why can't you charge the sitting president? I've turned around on that. I just think it does not work as a practical matter. And by the way,

for all the momentum that had gathered against that policy, it was never looked at for a second under the Biden-Garland administration. It certainly won't be looked at under the Trump administration. It's been on the books since 73. It was re-examined in 2000. They've come out the same way both times. We're going on 50 plus years and we just had a Democratic administration with more political wins behind its back to re-examine it than ever and they didn't even touch the thing. So like it or not, it just is. And I want to make one other point.

When people, you know, Donald Trump, I think foolishly and maybe worse than that, has said, I will fire Jack Smith literally within two minutes. He said, quote, within two minutes of taking office. And I think some people may take that and say, well, that's the reason Jack Smith's preparing to wind down. He knows he's going to get fired. That certainly would come to pass. But even if Donald Trump had said, no, I'm not going to do anything, I'm going to let him play it out.

I still think Jack Smith would be packing his boxes because of the OLC memo, because he would, I believe he would understand that he could not proceed with a trial and imprisonment of a sitting president. Do you, do you agree with that? Oh,

Oh, yeah. For the same reasons we just discussed with regard to the memo. And again, it isn't because there's a policy and DOJ says you can't do that. You know, in the law, there are these laws where there's something is illegal per se, malum in se, or illegal just because we say so, you know, like...

a regulation, a speed limit or something. Law school professor McQuaid coming out here. Yeah, a speed limit or something like that. It isn't just because some people agree that this is the rule. It's because it's what the Constitution requires. And the idea is the president, whether you love the guy or hate the guy, by virtue of his position, is...

So important and so essential to making sure that our country is functioning, that they can't be distracted by having to defend themselves while they are sitting as president. Now, before they're president, after they're president, that's a different matter. But I agree with you. I don't think there will be any trials during the presidency. Before we get there, though, we do have to sort through this Manhattan situation. So the current schedule is...

Thanks for listening. To listen to the full analysis and never miss future episodes of the podcast, become a member of Cafe Insider. For a limited time, get 40% off your membership for the first year by heading to cafe.com slash November. Thank you for supporting our work.

Food insecurity still affects millions of individuals around the globe. And Nestlé, a global leader in nutrition, health and wellness, understands the importance of working together to create lasting change. Nestlé's partnerships extend beyond just financial support. From building urban hoop houses to producing custom seasoning for food banks, Nestlé and their partners actively engage with local communities, listening to their needs and working together to find innovative solutions.

Nestle is committed to helping support thriving, resilient communities today and for generations to come. Together, we can help to build stronger, healthier communities. Learn more at Nestle.com. Look, we're all tired of multitasking and keeping those mental tabs open day after day. Why not quiet all the noise and go for a drive that will feel like a reward in a Toyota Crown?

Whether you're looking for a sleek sedan or an impressive SUV, the Toyota Crown family comes with the quality and reliability that Toyota is known for, along with bold and elegant exterior styles. Make every drive an experience that captivates the senses. Learn more at toyota.com slash toyotacrownfamily. Toyota, let's go places.