RACHEL MARTIN, HOST:
Paul Manafort will likely go to prison. The question is how long President Trump's former campaign chairman will end up staying there. Yesterday, a federal judge sentenced Manafort to nearly four years in prison for fraud. President Trump has said in the past that a pardon for Manafort is not off the table. And what about President Trump's former lawyer? Michael Cohen will soon begin his own prison stint. Last week, he told a congressional panel he is prepared to serve his three-year sentence.
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MICHAEL COHEN: I have never asked for, nor would I accept, a pardon from President Trump.
MARTIN: But it looks like that now may not be true. For more on presidential pardons and federal sentencing and these two cases in particular, we have two former federal prosecutors with us - Kimberly Wehle, here in our D.C. studios, and Elie Honig in our New York studios. Welcome to you both.
KIMBERLY WEHLE: Good morning.
ELIE HONIG: Morning, Rachel.
MARTIN: So, Elie, let's start with Manafort. He got 47 months for a variety of fraud crimes. This is far less than the federal sentencing guidelines, which say crimes like these should get at least 19 years. What do you make of this?
HONIG: I was stunned by this. I think it's a completely unjust sentence. Now, look. Let's start with the federal guidelines. They're advisory, meaning judges have to calculate them, have to take them into consideration. But they're not binding. Judges are free to go above or below. I think most people I spoke to felt like 19 to 24 years would have been excessive for this case. However, four years - under four years is outrageous. There's just no way to justify it, especially given how much disdain Paul Manafort expressed for the criminal justice system, the prosecutors, law enforcement and the court throughout his case.
MARTIN: Is Manafort angling for a presidential pardon? Kim.
WEHLE: Well, we know that there - well, we've heard, anyway - there's been some discussions of it. It's - I think this sentence probably gives some cover to the president because the question on whether a pardon would be appropriate for any of these people in connection with the Mueller investigation has to do with the reasons behind the pardon. And traditionally, it's for - sort of given, in theory, for - kind of as a compassionate move. And this judge mentioned that Mr. Manafort, really - the guidelines are way too high and that he hasn't had kind of a history of criminal activity. So the president could say, listen. I agree with the judge. I'm going to pardon him.
MARTIN: I want to pivot and talk about Michael Cohen - some confusion here - because he had said under oath in his testimony before Congress that he never asked for a pardon. His lawyer, though, Lanny Davis, says at one point, he was open to a pardon. Did Cohen perjure himself here? Kim.
WEHLE: Well, he said, I've never asked for a pardon. And the question in - with respect to perjury is - what was his state of mind? Did he believe that he was lying in that moment? He could say, listen. I didn't personally, physically ask, myself. So there's - one question is whether there's criminal liability for him. That's iffy. The other question is whether the public perception is that he lied. And given that this whole process, really, is moving into the Congress, in terms of holding the president and the White House and people close to him, potentially, accountable for wrongdoing, it does matter that people in Congress are perceived by the American public - witnesses as telling the truth because they're going to have to - through their elected representatives either push for impeachment or vote him out of office the next round.
MARTIN: Elie, more broadly - I mean, at several points the president has tweeted or suggested pardons might be on the table for those who are talking to investigators even now. When does that cross the line into obstruction of justice?
HONIG: Yeah. There's kind of two different views on this. There's some people who are of the view of what we call the unitary executive theory, which is just a fancy way of saying, the president's in charge of the executive branch. DOJ is part of the executive branch, so he can do whatever the heck he wants. He can pardon people for any reason. He can stop and start investigations for any reason. Notable adherence to this include Brett Kavanaugh, who wrote about that, Matthew Whitaker, who filled in as AG and William Barr - current AG - have all written about that in different degrees.
I disagree with that. I think the fundamental precept of our law is that nobody is above the law. And I think if you were to use a pardon with the intent of stopping somebody from cooperating or encouraging somebody to not speak, I think that would be obstruction, same as it would in any other context. But we don't know the definitive answer to that.
MARTIN: Former federal prosecutors Elie Honig and Kim Wehle. Kim is the author of an upcoming book titled "How To Read The Constitution." Thanks to you both. We appreciate it.
HONIG: Thank you.
WEHLE: Thank you, Rachel. Transcript provided by NPR, Copyright NPR.