WEBVTT - Trump Beats Another Emoluments Lawsuit

0:00:03.520 --> 0:00:07.040
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.120 --> 0:00:09.680
<v Speaker 1>day we bring you inside an analysis into the most

0:00:09.720 --> 0:00:12.200
<v Speaker 1>important legal news of the day. You can find more

0:00:12.240 --> 0:00:16.160
<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

0:00:16.280 --> 0:00:20.160
<v Speaker 1>and on Bloomberg dot com slash podcast. President Trump got

0:00:20.160 --> 0:00:23.640
<v Speaker 1>the emoluments case against him claiming he had illegally profited

0:00:23.640 --> 0:00:26.880
<v Speaker 1>from his Washington hotel dismissed by a federal appeals court,

0:00:27.280 --> 0:00:30.960
<v Speaker 1>But similar emoluments cases are pending before appeals courts in

0:00:31.080 --> 0:00:33.879
<v Speaker 1>DC and New York. Could the result in those places

0:00:33.920 --> 0:00:36.720
<v Speaker 1>be different? Joining me is Steve Sanders, a professor at

0:00:36.720 --> 0:00:40.479
<v Speaker 1>the Mars School of lat Indiana University. Steve, this was

0:00:40.560 --> 0:00:44.320
<v Speaker 1>a procedural ruling based on the standing of the plaintiffs

0:00:44.400 --> 0:00:47.839
<v Speaker 1>Maryland and d C to bring the lawsuit. Tell us

0:00:47.920 --> 0:00:51.720
<v Speaker 1>what the Fourth Circuit decided? Sure, John, that's exactly right.

0:00:51.800 --> 0:00:55.160
<v Speaker 1>This is a threshold issue. The Fourth Circuit didn't reach

0:00:55.480 --> 0:00:58.200
<v Speaker 1>the merits of the argument of whether or whether or

0:00:58.240 --> 0:01:01.880
<v Speaker 1>not President Trump has violent that the emoluments clause or

0:01:01.920 --> 0:01:05.520
<v Speaker 1>what the emoluments clause means today. It's something that really

0:01:05.800 --> 0:01:09.039
<v Speaker 1>has never been interpreted by a court. Um what the

0:01:09.040 --> 0:01:12.360
<v Speaker 1>Fourth Circuit decided is that the District of Columbia and

0:01:12.400 --> 0:01:15.720
<v Speaker 1>the State of Maryland didn't have what's called standing. A

0:01:15.840 --> 0:01:19.600
<v Speaker 1>basic requirement of bringing a lawsuit in a federal court

0:01:20.040 --> 0:01:22.240
<v Speaker 1>is that you have to have standing. What that means

0:01:22.319 --> 0:01:25.039
<v Speaker 1>is you have to show you have an actual or

0:01:25.160 --> 0:01:29.320
<v Speaker 1>imminent injury. The requirement is intended to prevent people from

0:01:29.319 --> 0:01:33.200
<v Speaker 1>just coming into court and seeking a judgment based on

0:01:33.319 --> 0:01:37.280
<v Speaker 1>what they think the law is or what the constitution means.

0:01:37.360 --> 0:01:41.440
<v Speaker 1>They may just have a generalized grievance. The standing requirement

0:01:41.480 --> 0:01:43.760
<v Speaker 1>assures that you have some skin in the game, that

0:01:43.880 --> 0:01:46.600
<v Speaker 1>you actually have something at risk, that this is a

0:01:46.760 --> 0:01:51.640
<v Speaker 1>true legal case or controversy. Now, the argument that Maryland

0:01:51.640 --> 0:01:54.640
<v Speaker 1>and the District of Columbia made was their injury was

0:01:55.200 --> 0:01:58.360
<v Speaker 1>lost business. President Trump gets a lot of business at

0:01:58.400 --> 0:02:01.960
<v Speaker 1>his hotel in Washington. They said that both domestic and

0:02:02.040 --> 0:02:05.640
<v Speaker 1>foreign clients steer their business to the Trump hotel in

0:02:05.760 --> 0:02:09.080
<v Speaker 1>order to curry favor with the president, and that likely

0:02:09.240 --> 0:02:14.480
<v Speaker 1>hurts business at convention centers and other facilities that Maryland

0:02:14.560 --> 0:02:18.080
<v Speaker 1>and d C operate. What the Fourth Circuit said was

0:02:18.160 --> 0:02:22.240
<v Speaker 1>that is simply too speculative that for standing purposes, your

0:02:22.280 --> 0:02:26.640
<v Speaker 1>injury can't be that much a matter of guesswork. They

0:02:26.639 --> 0:02:29.600
<v Speaker 1>couldn't prove that they had actually lost any business for

0:02:29.639 --> 0:02:32.640
<v Speaker 1>the Trump Hotel. And so with fourth circuit set is

0:02:32.680 --> 0:02:35.960
<v Speaker 1>because you don't really have any evidence, you're just speculating

0:02:36.040 --> 0:02:38.360
<v Speaker 1>here that you might have lost business that might have

0:02:38.440 --> 0:02:42.080
<v Speaker 1>come to you instead of going to Trump. Sorry for

0:02:42.200 --> 0:02:47.079
<v Speaker 1>constitutional purposes, you don't have the required injury. So another

0:02:47.200 --> 0:02:51.800
<v Speaker 1>emoluments lawsuit filed by congressional Democrats with a different twist

0:02:51.960 --> 0:02:54.440
<v Speaker 1>from this suit, is before the U. S. Court of

0:02:54.440 --> 0:02:58.400
<v Speaker 1>Appeals in d C. Might they have better luck with

0:02:58.480 --> 0:03:02.080
<v Speaker 1>the standing issue? It's possible. There aren't a lot of

0:03:02.200 --> 0:03:08.120
<v Speaker 1>clear answers about the standing of elected officials to bring

0:03:08.160 --> 0:03:11.480
<v Speaker 1>a suit when they say, hey, our prerogatives are at

0:03:11.560 --> 0:03:15.600
<v Speaker 1>stake here, our constitutional responsibilities are being trampled on, and

0:03:16.120 --> 0:03:18.800
<v Speaker 1>d s the Trump administration or President Trump is also

0:03:18.840 --> 0:03:21.760
<v Speaker 1>relying on the argument that this suit must be dismissed

0:03:21.760 --> 0:03:26.520
<v Speaker 1>because it's a distraction from his official responsibilities. One thing

0:03:26.520 --> 0:03:29.880
<v Speaker 1>about the so called standing doctrine is that I think

0:03:29.960 --> 0:03:32.600
<v Speaker 1>most law professors and law students who learn about it

0:03:33.200 --> 0:03:38.480
<v Speaker 1>realize it's extraordinarily malleable. And that is sometimes courts and

0:03:38.560 --> 0:03:42.600
<v Speaker 1>judges will use standing and the absence of standing or

0:03:42.600 --> 0:03:44.880
<v Speaker 1>the presence of standing to get rid of a case

0:03:44.960 --> 0:03:47.120
<v Speaker 1>that they think they don't want to deal with, or

0:03:47.280 --> 0:03:50.560
<v Speaker 1>to signal what they really think about the merits. You

0:03:50.560 --> 0:03:53.320
<v Speaker 1>know that there have been cases I teach my students

0:03:53.400 --> 0:03:56.560
<v Speaker 1>where say, a state has said the federal government's failure

0:03:56.600 --> 0:04:00.200
<v Speaker 1>to regulate c O. Two was contributing to the laws

0:04:00.200 --> 0:04:04.119
<v Speaker 1>of each land. Is that really more attenuated or more

0:04:04.160 --> 0:04:08.520
<v Speaker 1>speculative than what the state attorneys general we're arguing here.

0:04:08.880 --> 0:04:12.720
<v Speaker 1>We'll see there is another body of doctrine about elected officials,

0:04:12.800 --> 0:04:16.480
<v Speaker 1>members of Congress, and they're standing to sue the executive branch.

0:04:16.839 --> 0:04:20.320
<v Speaker 1>We'll see what the DC sergeant says about that. So, Steve,

0:04:20.480 --> 0:04:24.080
<v Speaker 1>you have these emoluments clauses in the Constitution. So the

0:04:24.120 --> 0:04:27.520
<v Speaker 1>framers thought it was an important concept. Who gets to

0:04:27.720 --> 0:04:31.400
<v Speaker 1>enforce them? If neither Congress can enforce them, if a

0:04:31.480 --> 0:04:35.200
<v Speaker 1>state can enforce them, who will enforce them? Well, this

0:04:35.320 --> 0:04:37.920
<v Speaker 1>is a very interesting and legitimate question, and it is

0:04:37.960 --> 0:04:41.440
<v Speaker 1>not really limited to a molument. So emoluments is interesting

0:04:41.520 --> 0:04:45.680
<v Speaker 1>because it has never really been the subject of authoritative

0:04:45.720 --> 0:04:49.600
<v Speaker 1>interpretation by the modern Supreme Court. What exactly it means

0:04:49.640 --> 0:04:53.000
<v Speaker 1>to violate emoluments. But you know that is a dilemma

0:04:53.360 --> 0:04:56.680
<v Speaker 1>in much constitutional law that just because I as a

0:04:56.720 --> 0:05:00.320
<v Speaker 1>citizen and convinced that the government is violating the constitut Susan,

0:05:00.480 --> 0:05:02.559
<v Speaker 1>I can't just bring a lawsuit. I have to show

0:05:02.600 --> 0:05:06.360
<v Speaker 1>I'm injured, and sometimes that kind of injury is difficult

0:05:06.440 --> 0:05:10.359
<v Speaker 1>to prove. And so in this situation, who is injured

0:05:10.400 --> 0:05:16.200
<v Speaker 1>by the president illegally profiting allegedly from his businesses? So far,

0:05:16.320 --> 0:05:18.599
<v Speaker 1>all the people who say they've had injuries from that

0:05:18.640 --> 0:05:22.039
<v Speaker 1>are striking out. In the Federal court, this case was

0:05:22.160 --> 0:05:25.320
<v Speaker 1>decided by a panel of three judges, all appointed by

0:05:25.400 --> 0:05:29.360
<v Speaker 1>Republican presidents. The plaintiffs could ask for an on bank

0:05:29.400 --> 0:05:32.800
<v Speaker 1>hearing before the full Court, which is not as conservative

0:05:32.839 --> 0:05:35.719
<v Speaker 1>as these three judges are. They could ask to go

0:05:35.800 --> 0:05:39.840
<v Speaker 1>to the Supreme Court. What do you think they should do? Well,

0:05:40.040 --> 0:05:42.480
<v Speaker 1>I think they should probably pursue both of those courses.

0:05:42.520 --> 0:05:45.280
<v Speaker 1>It is typical when you believe that a panel of

0:05:45.320 --> 0:05:47.960
<v Speaker 1>the Court of Appeals has aired, to ask the full court,

0:05:48.000 --> 0:05:52.360
<v Speaker 1>all the judges, the on bunk court to reconsider the decision.

0:05:52.400 --> 0:05:55.279
<v Speaker 1>If you do that, you're not forfeiting your right to

0:05:55.360 --> 0:05:59.000
<v Speaker 1>eventually go to the Supreme Court. If the Fourth Circuit

0:05:59.160 --> 0:06:01.360
<v Speaker 1>were to rule as them as well, I think they

0:06:01.400 --> 0:06:05.320
<v Speaker 1>should pursue all of their options here. Again, standing is

0:06:05.720 --> 0:06:08.960
<v Speaker 1>one of those doctrines that's malleable, and sometimes the injuries

0:06:09.000 --> 0:06:13.440
<v Speaker 1>in the eye beholder and larger factors and courts attitudes

0:06:13.480 --> 0:06:17.360
<v Speaker 1>towards the merits will sometimes influence whether they think that

0:06:17.480 --> 0:06:20.680
<v Speaker 1>again should be allowed to gain the courthouse door or not.

0:06:21.320 --> 0:06:25.480
<v Speaker 1>And Trump and his attorneys are succeeding in that none

0:06:25.520 --> 0:06:29.440
<v Speaker 1>of these cases has gone into discovery, and so there's

0:06:29.480 --> 0:06:33.640
<v Speaker 1>no attorneys or Democrats looking into his finances to see

0:06:33.640 --> 0:06:37.600
<v Speaker 1>whether he did violate the emoluments clause. That's correct. Now,

0:06:37.680 --> 0:06:41.560
<v Speaker 1>presumably Congress could hold hearings about this. Congress can can

0:06:41.600 --> 0:06:45.360
<v Speaker 1>pursue this a different way. Congress can investigate and make

0:06:45.640 --> 0:06:50.040
<v Speaker 1>conclusions about whether it thinks the president is violated the clause.

0:06:50.120 --> 0:06:52.640
<v Speaker 1>Those don't have the force of law. But of course

0:06:52.680 --> 0:06:57.440
<v Speaker 1>we see this administration frankly stonewalling efforts by Congress to

0:06:57.520 --> 0:07:02.320
<v Speaker 1>conduct inquiries as well. There are even more subpoenas being issued.

0:07:03.040 --> 0:07:05.640
<v Speaker 1>Is it likely that as we get higher and up

0:07:05.880 --> 0:07:09.479
<v Speaker 1>in the federal courts that Democrats will have more problems

0:07:09.600 --> 0:07:12.720
<v Speaker 1>with appellate courts on these issues. Yeah, I don't think

0:07:12.760 --> 0:07:15.520
<v Speaker 1>we can necessarily see that. I think many of us

0:07:15.560 --> 0:07:19.520
<v Speaker 1>in legal academias are brown on this idea that we've

0:07:19.520 --> 0:07:22.600
<v Speaker 1>decided what the outcome of court decisions is going to

0:07:22.680 --> 0:07:26.040
<v Speaker 1>be by the partisan membership of the judges. I think

0:07:26.040 --> 0:07:28.080
<v Speaker 1>we can hope that won't be the case. But there

0:07:28.080 --> 0:07:31.200
<v Speaker 1>are good judges out there who will try as hard

0:07:31.240 --> 0:07:34.440
<v Speaker 1>as they can to to adjudicate these cases fairly and

0:07:34.520 --> 0:07:39.320
<v Speaker 1>to explain their reasons persuasively in opinions. All right, well,

0:07:39.360 --> 0:07:43.600
<v Speaker 1>you explained very persuasively the reasons here. Thank you so much, Steve.

0:07:43.640 --> 0:07:46.280
<v Speaker 1>As always, that's Steve Sanders. He's a professor at the

0:07:46.320 --> 0:07:50.240
<v Speaker 1>Marrow School of Law at Indiana University. Thanks for listening

0:07:50.240 --> 0:07:53.520
<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

0:07:53.520 --> 0:07:57.120
<v Speaker 1>to the show on Apple Podcasts, SoundCloud, and on Bloomberg

0:07:57.160 --> 0:08:01.280
<v Speaker 1>dot com Slash podcasts. I'm June Ball, So this is

0:08:01.280 --> 0:08:07.840
<v Speaker 1>Bloomberg m HM.