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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 1: Welcome to Bloomberg Law. I'm June Grosso. A major legal

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Speaker 1: win for President Trump was overshadowed by his acquittal in

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Speaker 1: the Senate impeachment trial. A federal appellate court throughout a

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Speaker 1: lawsuit by two hundred fifteen Congressional Democrats who say Trump

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Speaker 1: has been violating the Constitution's emoluments clause by profiting from

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Speaker 1: foreign government spending at his Washington hotel and other properties.

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Speaker 1: A unanimous three judge panel of the d C Circuit

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Speaker 1: said the House and Senate members did not have standing

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Speaker 1: to sue Trump. Joining me is Andrew cant To, professor

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Speaker 1: at Fordham Law School. For those who are unfamiliar, start

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Speaker 1: by explaining what these emoluments lawsuits are about. There's been

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Speaker 1: a number of lawsuits that were filed after President Trump

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Speaker 1: took office, all about the so called emoluments clauses of

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Speaker 1: the United States Constitution. There's two of them. The primary

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Speaker 1: one that people have focused on is called the foreign

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Speaker 1: a Moluments Clause, and it says that any person holding

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Speaker 1: an office of profit or trust under the United States,

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Speaker 1: and that's widely but not universally thought to include the

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Speaker 1: President of the United States. But these people holding offices

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Speaker 1: out of the United States cannot accept from any foreign

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Speaker 1: government any present, a molument, office, or title of any

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Speaker 1: kind without the consent of Congress. And the arguments have

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Speaker 1: been varied, but the ones that are are most commonly

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Speaker 1: made is that President Trump, because he retains such a

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Speaker 1: significant financial interest in the Trump Company real estate empire,

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Speaker 1: is receiving payments from foreign governments for example, if a

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Speaker 1: government diplomatic delegation stays at the Trump International Hotel in

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Speaker 1: d C or something like that. You know. Other kinds

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Speaker 1: of moluments of payments to to Trump have been talked about,

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Speaker 1: for example, the Chinese government facilitating Trump Organization trademark approvals

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Speaker 1: and things like that. But the main claims are about

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Speaker 1: essentially the possibility that foreign governments are occurring favor with

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Speaker 1: President Trump and his administration by spending money at his

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Speaker 1: hotel and resort properties. And in a variety of different lawsuits,

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Speaker 1: um different groups of people have been claiming that this

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Speaker 1: violates the constitutions emoluments close. So now, the case before

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Speaker 1: the d C Circuit involved Senators and a hundred and

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Speaker 1: eighty six members of the House. What did the court decide?

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Speaker 1: The court decided that these members of Congress do not

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Speaker 1: have what's called standing. It's a requirement that the Constitution

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Speaker 1: imposes that essentially says three things. It says that anyone

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Speaker 1: who's going to be suing in federal court must have

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Speaker 1: suffered an injury to themselves, a direct and concrete injury

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Speaker 1: to themselves. They can't be complaining about an injury to

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Speaker 1: anyone else. That the injury they are complaining about must

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Speaker 1: have been caused by the defendant they are suing. And

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Speaker 1: then the third requirement is that a judicial decree that

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Speaker 1: the planeff is asking for could actually provide some redress

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Speaker 1: to their injury. So it sounds abstract, but it's a

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Speaker 1: quite important requirement that in every single federal case, you know,

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Speaker 1: must be met. And essentially we're looking for kind of

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Speaker 1: the right plantiff who has truly been injured by the

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Speaker 1: defendant being sued in a PLANEFF, who's asking for a

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Speaker 1: judicial decree that will have, you know, a real impact

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Speaker 1: on the injury the plantiff is caring about. And so

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Speaker 1: here these members of Congress are saying that essentially they've

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Speaker 1: been deprived of their ability to vote on whether to

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Speaker 1: approve foreign emoluments or not to the president because he's

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Speaker 1: just been accepting these foreign of monuments from his private

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Speaker 1: businesses without bringing them to Congress for a vote. And

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Speaker 1: the court decided that they didn't have standing. Why so,

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Speaker 1: sometimes rather than private individuals, members of Congress have sued,

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Speaker 1: or sometimes members of state legislatures have sued trying to

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Speaker 1: to enforce the law or claim that, you know, somebody

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Speaker 1: in government is violating the law. And generally speaking, the

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Speaker 1: Supreme Court and then based on that, the lower federal

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Speaker 1: courts are pretty hostile to the idea that legislators as

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Speaker 1: individuals have a direct and concrete injury that they should

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Speaker 1: be able to go to the federal court to resolve.

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Speaker 1: And you know what the Supreme Court has said, and

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Speaker 1: the d C. Circuit that's just decided this case throwing

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Speaker 1: out the soup by the members of Congress, you know,

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Speaker 1: said that the Spreme Court's decisions had clearly foreclosed this case.

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Speaker 1: The Supreme Court's rule basically is that individual members of

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Speaker 1: Congress don't have standing to sue to complain about law

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Speaker 1: violations by the executive branch. Sometimes an entire house of

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Speaker 1: the legislature or the legislature as a whole might have standing,

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Speaker 1: but here, you know, it was just a soup brought

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Speaker 1: by individuals. In the opinion, the Court says, our standing

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Speaker 1: inquiry is quote especially rigorous in a case like this,

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Speaker 1: we're reaching the merits of the dispute would force us

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Speaker 1: to disside whether an action taken by one of the

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Speaker 1: other two branches of the federal government was unconstitutional. Did

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Speaker 1: they just come up with that especially rigorous standard? Now,

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Speaker 1: that's something the Supreme Court has said a number of

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Speaker 1: times going back probably forty years or so. And the

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Speaker 1: idea is is basically one of what we call separation

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Speaker 1: of powers. You know, the Court often suggests that, especially

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Speaker 1: when it's disputes between Congress in the executive branch, not

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Speaker 1: only then, but especially there, that the Congress in the

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Speaker 1: president should often be required to try to work out

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Speaker 1: their differences without resort to the judiciary. You know, the

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Speaker 1: judiciary in a way should kind of stay in its lane,

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Speaker 1: should stay back a bit from some serious disputes about

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Speaker 1: the constitutionality of government action. And you know, the idea

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Speaker 1: is that, you know, the courts are not supposed to

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Speaker 1: be kind of the you know, the constantly interfering referees

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Speaker 1: of disputes about the legality of government action. That Congress

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Speaker 1: has lots of tools to to use against the President,

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Speaker 1: and it should it should often try to use those

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Speaker 1: rather than running to court. You know, for example, refusing

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Speaker 1: to confirm Executive Branch nominees until the President gives in

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Speaker 1: on something Congress cares about, or withholding funding for a

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Speaker 1: project that the executive rant wants until the executive branch

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Speaker 1: comes around to Congress's few of things. I've been talking

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Speaker 1: with Professor Andrew Kent of Fordham Law School about the

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Speaker 1: d C. Circuit Court ruling throwing out a lawsuit by

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Speaker 1: two or fifteen Congressional Democrats who say President Trump has

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Speaker 1: been violating the Constitution's and Moluments clause by profiting from

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Speaker 1: foreign government spending at his Washington hotel and other properties.

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Speaker 1: The court found that the House and Senate members lack

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Speaker 1: standing and throw the case out. Here's his reaction. It

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Speaker 1: was a a total win. This was rought by two

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Speaker 1: hundred and thirty Democrats in Congress or a monument. There

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Speaker 1: was another phony case. This is just one of three

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Speaker 1: lawsuits ping ponging back and forth between district courts and

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Speaker 1: appeals courts in d C, Virginia, and New York, So Andrew,

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Speaker 1: the members of Congress in the DC case now have

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Speaker 1: the option of asking for hearing by the entire DC

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Speaker 1: Circuit Corps of Appeals and on Bank hearing or going

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Speaker 1: to the Supreme Court. What are their best chances? Well,

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Speaker 1: on the one hand, um, the lower court was unanimous

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Speaker 1: and and it treated it as a fairly straightforward decision,

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Speaker 1: So I think that reduces the likelihood that either the

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Speaker 1: full DC Circuit on Bank or the Supreme Court would

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Speaker 1: take it. On the other hand, it's you know, it's

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Speaker 1: quite a significant issue in our in our politics and

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Speaker 1: in government today, and there might be a feeling of

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Speaker 1: a of a need to um, you know, to rule

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Speaker 1: on something like this, especially since other other planets who

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Speaker 1: have been trying to challenge the you know, what they

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Speaker 1: see as President Trump's receipt of unconstitutional monuments and foreign

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Speaker 1: governments other planets have been unsuccessful in getting their cases heard.

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Speaker 1: So there's perhaps might be some sense that uh, you know,

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Speaker 1: a major issue like this would be you know, entirely

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Speaker 1: unreviewed if if it if it was not hurt out

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Speaker 1: of by the on band court or the Supreme Court.

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Speaker 1: So there are two other cases percolating through the courts,

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Speaker 1: one in New York and one in Virginia. So in

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Speaker 1: Virginia already the three judge panel ruled against the ages

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Speaker 1: of Maryland and d C and in favor of Trump.

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Speaker 1: And that's gone before an on bank court. Do you

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Speaker 1: have any inkling of how the on Bank court might

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Speaker 1: come out on that. It's hard to say. You know,

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Speaker 1: he's argued in December, and you know, some people thought

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Speaker 1: they saw, you know, hints of how it's going to

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Speaker 1: come out. Um, I'm not sure. I think the issues

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Speaker 1: are actually pretty difficult. You know, they're Maryland and d

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Speaker 1: C had a variety of theories for why they were

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Speaker 1: supposedly injured by um, you know, what they think is

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Speaker 1: President Trump's or seat of these foreign government emoluments. But

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Speaker 1: there are things like, um, a claim that you know,

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Speaker 1: the d C convention center and in a convention center

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Speaker 1: owned by the Maryland government are are receiving fewer visitors

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Speaker 1: and therefore less revenue than they would because um, foreign

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Speaker 1: governments are trying to curry favor with the president by

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Speaker 1: going to you know, his hotels instead. You know, their

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Speaker 1: theories that UM, they're not holy novel in the sense

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Speaker 1: that you know, there's something called competitor standing where UM,

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Speaker 1: where a company is making less money because of illegal

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Speaker 1: action by its competitor, and that can be an injury

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Speaker 1: that gives you standing. But a certainly novel to UM

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Speaker 1: to you know, alleged this against the you know, the

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Speaker 1: sitting president of the United States. UH. And in this

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Speaker 1: context of these foreign of mooluments clause lawsuits, you know,

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Speaker 1: the foreignmoluments cluse has just not been litigated before. So

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Speaker 1: I think it's somewhat difficult to predict how these cases

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Speaker 1: are going to come out because of the novelty, because

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Speaker 1: of the political sensitivity UM, and the Fourth Circuit UH

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Speaker 1: Court of Appeals, which is hearing this is closely divided

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Speaker 1: between Democratic and Republican appointees also, which I think you

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Speaker 1: know is an additional level of difficulty in predicting outcomes. Now,

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Speaker 1: the case in Manhattan is a different story. The Second

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Speaker 1: Circuit Court of Appeals revived the lawsuit there by restaurant

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Speaker 1: and hotel owners accusing Trump of violating the emoluments clauses.

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Speaker 1: The plaintiffs, they're say they're losing business because state and

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Speaker 1: foreign officials were switching to Trump properties. Do they have

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Speaker 1: the better case for standing than the ages or the Congress.

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Speaker 1: It's interesting, you know, this is the case that, so

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Speaker 1: far as you know, had an initial victory at the

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Speaker 1: Court of appeals level. But you know, I personally see

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Speaker 1: it as the weakest of them. You know, Congress is

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Speaker 1: specifically given in the Constitution the right to control whether

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Speaker 1: or not a president receives foreign a molument or not.

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Speaker 1: It's pretty remote from the concerns of this constitutional clause

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Speaker 1: to think that a restaurant trade association is the group

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Speaker 1: that really, you know, is receiving injuries and should be

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Speaker 1: able to sue to enforce something like that. I would

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Speaker 1: think that this fit got to you know, the Supreme

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Speaker 1: court level, that the suits by the individual restaurant owners

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Speaker 1: from restaurant association would be the one that would be

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Speaker 1: least likely to succeed, would be my my gut. But

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Speaker 1: so far, you know, the federal courts of appeals have

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Speaker 1: disagreed with me this use of the emoluments clause. It's

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Speaker 1: not the straightforward kind of use that the framers were

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Speaker 1: thinking about, is it. Well, we know a lot about

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Speaker 1: the concerns about corruption from foreign governments that the Framers have,

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Speaker 1: but we don't know very much about what they thought

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Speaker 1: about how this this would be enforced. Right from the

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Speaker 1: text of it, it seems clear that they thought that

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Speaker 1: this should be something that should be directed to Congress's attention.

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Speaker 1: But whether they thought that, you know, Congress might legislate

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Speaker 1: to provide a framework about this, or Congress would case

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Speaker 1: by case review payments from foreign governments to presidents to

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Speaker 1: see whether they would approved them or not. You know,

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Speaker 1: we don't know much about that, but certainly it's probably

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Speaker 1: fair to say that they wouldn't have envisioned you know,

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Speaker 1: restaurant owners in New York City, you know, suing about this.

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Speaker 1: Uh yeah, I think I think that's probably right. Thanks

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Speaker 1: for being on Bloomberg Law. Andrew. That's Andrew Canti, professor

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Speaker 1: at Fordham Law School. I'm Jen Rosso and this is

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Speaker 1: Bloomberg