1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you inside an analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:20,160 Speaker 1: and on Bloomberg dot com slash podcast. President Trump got 6 00:00:20,160 --> 00:00:23,640 Speaker 1: the emoluments case against him claiming he had illegally profited 7 00:00:23,640 --> 00:00:26,880 Speaker 1: from his Washington hotel dismissed by a federal appeals court, 8 00:00:27,280 --> 00:00:30,960 Speaker 1: But similar emoluments cases are pending before appeals courts in 9 00:00:31,080 --> 00:00:33,879 Speaker 1: DC and New York. Could the result in those places 10 00:00:33,920 --> 00:00:36,720 Speaker 1: be different? Joining me is Steve Sanders, a professor at 11 00:00:36,720 --> 00:00:40,479 Speaker 1: the Mars School of lat Indiana University. Steve, this was 12 00:00:40,560 --> 00:00:44,320 Speaker 1: a procedural ruling based on the standing of the plaintiffs 13 00:00:44,400 --> 00:00:47,839 Speaker 1: Maryland and d C to bring the lawsuit. Tell us 14 00:00:47,920 --> 00:00:51,720 Speaker 1: what the Fourth Circuit decided? Sure, John, that's exactly right. 15 00:00:51,800 --> 00:00:55,160 Speaker 1: This is a threshold issue. The Fourth Circuit didn't reach 16 00:00:55,480 --> 00:00:58,200 Speaker 1: the merits of the argument of whether or whether or 17 00:00:58,240 --> 00:01:01,880 Speaker 1: not President Trump has violent that the emoluments clause or 18 00:01:01,920 --> 00:01:05,520 Speaker 1: what the emoluments clause means today. It's something that really 19 00:01:05,800 --> 00:01:09,039 Speaker 1: has never been interpreted by a court. Um what the 20 00:01:09,040 --> 00:01:12,360 Speaker 1: Fourth Circuit decided is that the District of Columbia and 21 00:01:12,400 --> 00:01:15,720 Speaker 1: the State of Maryland didn't have what's called standing. A 22 00:01:15,840 --> 00:01:19,600 Speaker 1: basic requirement of bringing a lawsuit in a federal court 23 00:01:20,040 --> 00:01:22,240 Speaker 1: is that you have to have standing. What that means 24 00:01:22,319 --> 00:01:25,039 Speaker 1: is you have to show you have an actual or 25 00:01:25,160 --> 00:01:29,320 Speaker 1: imminent injury. The requirement is intended to prevent people from 26 00:01:29,319 --> 00:01:33,200 Speaker 1: just coming into court and seeking a judgment based on 27 00:01:33,319 --> 00:01:37,280 Speaker 1: what they think the law is or what the constitution means. 28 00:01:37,360 --> 00:01:41,440 Speaker 1: They may just have a generalized grievance. The standing requirement 29 00:01:41,480 --> 00:01:43,760 Speaker 1: assures that you have some skin in the game, that 30 00:01:43,880 --> 00:01:46,600 Speaker 1: you actually have something at risk, that this is a 31 00:01:46,760 --> 00:01:51,640 Speaker 1: true legal case or controversy. Now, the argument that Maryland 32 00:01:51,640 --> 00:01:54,640 Speaker 1: and the District of Columbia made was their injury was 33 00:01:55,200 --> 00:01:58,360 Speaker 1: lost business. President Trump gets a lot of business at 34 00:01:58,400 --> 00:02:01,960 Speaker 1: his hotel in Washington. They said that both domestic and 35 00:02:02,040 --> 00:02:05,640 Speaker 1: foreign clients steer their business to the Trump hotel in 36 00:02:05,760 --> 00:02:09,080 Speaker 1: order to curry favor with the president, and that likely 37 00:02:09,240 --> 00:02:14,480 Speaker 1: hurts business at convention centers and other facilities that Maryland 38 00:02:14,560 --> 00:02:18,080 Speaker 1: and d C operate. What the Fourth Circuit said was 39 00:02:18,160 --> 00:02:22,240 Speaker 1: that is simply too speculative that for standing purposes, your 40 00:02:22,280 --> 00:02:26,640 Speaker 1: injury can't be that much a matter of guesswork. They 41 00:02:26,639 --> 00:02:29,600 Speaker 1: couldn't prove that they had actually lost any business for 42 00:02:29,639 --> 00:02:32,640 Speaker 1: the Trump Hotel. And so with fourth circuit set is 43 00:02:32,680 --> 00:02:35,960 Speaker 1: because you don't really have any evidence, you're just speculating 44 00:02:36,040 --> 00:02:38,360 Speaker 1: here that you might have lost business that might have 45 00:02:38,440 --> 00:02:42,080 Speaker 1: come to you instead of going to Trump. Sorry for 46 00:02:42,200 --> 00:02:47,079 Speaker 1: constitutional purposes, you don't have the required injury. So another 47 00:02:47,200 --> 00:02:51,800 Speaker 1: emoluments lawsuit filed by congressional Democrats with a different twist 48 00:02:51,960 --> 00:02:54,440 Speaker 1: from this suit, is before the U. S. Court of 49 00:02:54,440 --> 00:02:58,400 Speaker 1: Appeals in d C. Might they have better luck with 50 00:02:58,480 --> 00:03:02,080 Speaker 1: the standing issue? It's possible. There aren't a lot of 51 00:03:02,200 --> 00:03:08,120 Speaker 1: clear answers about the standing of elected officials to bring 52 00:03:08,160 --> 00:03:11,480 Speaker 1: a suit when they say, hey, our prerogatives are at 53 00:03:11,560 --> 00:03:15,600 Speaker 1: stake here, our constitutional responsibilities are being trampled on, and 54 00:03:16,120 --> 00:03:18,800 Speaker 1: d s the Trump administration or President Trump is also 55 00:03:18,840 --> 00:03:21,760 Speaker 1: relying on the argument that this suit must be dismissed 56 00:03:21,760 --> 00:03:26,520 Speaker 1: because it's a distraction from his official responsibilities. One thing 57 00:03:26,520 --> 00:03:29,880 Speaker 1: about the so called standing doctrine is that I think 58 00:03:29,960 --> 00:03:32,600 Speaker 1: most law professors and law students who learn about it 59 00:03:33,200 --> 00:03:38,480 Speaker 1: realize it's extraordinarily malleable. And that is sometimes courts and 60 00:03:38,560 --> 00:03:42,600 Speaker 1: judges will use standing and the absence of standing or 61 00:03:42,600 --> 00:03:44,880 Speaker 1: the presence of standing to get rid of a case 62 00:03:44,960 --> 00:03:47,120 Speaker 1: that they think they don't want to deal with, or 63 00:03:47,280 --> 00:03:50,560 Speaker 1: to signal what they really think about the merits. You 64 00:03:50,560 --> 00:03:53,320 Speaker 1: know that there have been cases I teach my students 65 00:03:53,400 --> 00:03:56,560 Speaker 1: where say, a state has said the federal government's failure 66 00:03:56,600 --> 00:04:00,200 Speaker 1: to regulate c O. Two was contributing to the laws 67 00:04:00,200 --> 00:04:04,119 Speaker 1: of each land. Is that really more attenuated or more 68 00:04:04,160 --> 00:04:08,520 Speaker 1: speculative than what the state attorneys general we're arguing here. 69 00:04:08,880 --> 00:04:12,720 Speaker 1: We'll see there is another body of doctrine about elected officials, 70 00:04:12,800 --> 00:04:16,480 Speaker 1: members of Congress, and they're standing to sue the executive branch. 71 00:04:16,839 --> 00:04:20,320 Speaker 1: We'll see what the DC sergeant says about that. So, Steve, 72 00:04:20,480 --> 00:04:24,080 Speaker 1: you have these emoluments clauses in the Constitution. So the 73 00:04:24,120 --> 00:04:27,520 Speaker 1: framers thought it was an important concept. Who gets to 74 00:04:27,720 --> 00:04:31,400 Speaker 1: enforce them? If neither Congress can enforce them, if a 75 00:04:31,480 --> 00:04:35,200 Speaker 1: state can enforce them, who will enforce them? Well, this 76 00:04:35,320 --> 00:04:37,920 Speaker 1: is a very interesting and legitimate question, and it is 77 00:04:37,960 --> 00:04:41,440 Speaker 1: not really limited to a molument. So emoluments is interesting 78 00:04:41,520 --> 00:04:45,680 Speaker 1: because it has never really been the subject of authoritative 79 00:04:45,720 --> 00:04:49,600 Speaker 1: interpretation by the modern Supreme Court. What exactly it means 80 00:04:49,640 --> 00:04:53,000 Speaker 1: to violate emoluments. But you know that is a dilemma 81 00:04:53,360 --> 00:04:56,680 Speaker 1: in much constitutional law that just because I as a 82 00:04:56,720 --> 00:05:00,320 Speaker 1: citizen and convinced that the government is violating the constitut Susan, 83 00:05:00,480 --> 00:05:02,559 Speaker 1: I can't just bring a lawsuit. I have to show 84 00:05:02,600 --> 00:05:06,360 Speaker 1: I'm injured, and sometimes that kind of injury is difficult 85 00:05:06,440 --> 00:05:10,359 Speaker 1: to prove. And so in this situation, who is injured 86 00:05:10,400 --> 00:05:16,200 Speaker 1: by the president illegally profiting allegedly from his businesses? So far, 87 00:05:16,320 --> 00:05:18,599 Speaker 1: all the people who say they've had injuries from that 88 00:05:18,640 --> 00:05:22,039 Speaker 1: are striking out. In the Federal court, this case was 89 00:05:22,160 --> 00:05:25,320 Speaker 1: decided by a panel of three judges, all appointed by 90 00:05:25,400 --> 00:05:29,360 Speaker 1: Republican presidents. The plaintiffs could ask for an on bank 91 00:05:29,400 --> 00:05:32,800 Speaker 1: hearing before the full Court, which is not as conservative 92 00:05:32,839 --> 00:05:35,719 Speaker 1: as these three judges are. They could ask to go 93 00:05:35,800 --> 00:05:39,840 Speaker 1: to the Supreme Court. What do you think they should do? Well, 94 00:05:40,040 --> 00:05:42,480 Speaker 1: I think they should probably pursue both of those courses. 95 00:05:42,520 --> 00:05:45,280 Speaker 1: It is typical when you believe that a panel of 96 00:05:45,320 --> 00:05:47,960 Speaker 1: the Court of Appeals has aired, to ask the full court, 97 00:05:48,000 --> 00:05:52,360 Speaker 1: all the judges, the on bunk court to reconsider the decision. 98 00:05:52,400 --> 00:05:55,279 Speaker 1: If you do that, you're not forfeiting your right to 99 00:05:55,360 --> 00:05:59,000 Speaker 1: eventually go to the Supreme Court. If the Fourth Circuit 100 00:05:59,160 --> 00:06:01,360 Speaker 1: were to rule as them as well, I think they 101 00:06:01,400 --> 00:06:05,320 Speaker 1: should pursue all of their options here. Again, standing is 102 00:06:05,720 --> 00:06:08,960 Speaker 1: one of those doctrines that's malleable, and sometimes the injuries 103 00:06:09,000 --> 00:06:13,440 Speaker 1: in the eye beholder and larger factors and courts attitudes 104 00:06:13,480 --> 00:06:17,360 Speaker 1: towards the merits will sometimes influence whether they think that 105 00:06:17,480 --> 00:06:20,680 Speaker 1: again should be allowed to gain the courthouse door or not. 106 00:06:21,320 --> 00:06:25,480 Speaker 1: And Trump and his attorneys are succeeding in that none 107 00:06:25,520 --> 00:06:29,440 Speaker 1: of these cases has gone into discovery, and so there's 108 00:06:29,480 --> 00:06:33,640 Speaker 1: no attorneys or Democrats looking into his finances to see 109 00:06:33,640 --> 00:06:37,600 Speaker 1: whether he did violate the emoluments clause. That's correct. Now, 110 00:06:37,680 --> 00:06:41,560 Speaker 1: presumably Congress could hold hearings about this. Congress can can 111 00:06:41,600 --> 00:06:45,360 Speaker 1: pursue this a different way. Congress can investigate and make 112 00:06:45,640 --> 00:06:50,040 Speaker 1: conclusions about whether it thinks the president is violated the clause. 113 00:06:50,120 --> 00:06:52,640 Speaker 1: Those don't have the force of law. But of course 114 00:06:52,680 --> 00:06:57,440 Speaker 1: we see this administration frankly stonewalling efforts by Congress to 115 00:06:57,520 --> 00:07:02,320 Speaker 1: conduct inquiries as well. There are even more subpoenas being issued. 116 00:07:03,040 --> 00:07:05,640 Speaker 1: Is it likely that as we get higher and up 117 00:07:05,880 --> 00:07:09,479 Speaker 1: in the federal courts that Democrats will have more problems 118 00:07:09,600 --> 00:07:12,720 Speaker 1: with appellate courts on these issues. Yeah, I don't think 119 00:07:12,760 --> 00:07:15,520 Speaker 1: we can necessarily see that. I think many of us 120 00:07:15,560 --> 00:07:19,520 Speaker 1: in legal academias are brown on this idea that we've 121 00:07:19,520 --> 00:07:22,600 Speaker 1: decided what the outcome of court decisions is going to 122 00:07:22,680 --> 00:07:26,040 Speaker 1: be by the partisan membership of the judges. I think 123 00:07:26,040 --> 00:07:28,080 Speaker 1: we can hope that won't be the case. But there 124 00:07:28,080 --> 00:07:31,200 Speaker 1: are good judges out there who will try as hard 125 00:07:31,240 --> 00:07:34,440 Speaker 1: as they can to to adjudicate these cases fairly and 126 00:07:34,520 --> 00:07:39,320 Speaker 1: to explain their reasons persuasively in opinions. All right, well, 127 00:07:39,360 --> 00:07:43,600 Speaker 1: you explained very persuasively the reasons here. Thank you so much, Steve. 128 00:07:43,640 --> 00:07:46,280 Speaker 1: As always, that's Steve Sanders. He's a professor at the 129 00:07:46,320 --> 00:07:50,240 Speaker 1: Marrow School of Law at Indiana University. Thanks for listening 130 00:07:50,240 --> 00:07:53,520 Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen 131 00:07:53,520 --> 00:07:57,120 Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg 132 00:07:57,160 --> 00:08:01,280 Speaker 1: dot com Slash podcasts. I'm June Ball, So this is 133 00:08:01,280 --> 00:08:07,840 Speaker 1: Bloomberg m HM.