Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you inside an analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. President Trump got
Speaker 1: the emoluments case against him claiming he had illegally profited
Speaker 1: from his Washington hotel dismissed by a federal appeals court,
Speaker 1: But similar emoluments cases are pending before appeals courts in
Speaker 1: DC and New York. Could the result in those places
Speaker 1: be different? Joining me is Steve Sanders, a professor at
Speaker 1: the Mars School of lat Indiana University. Steve, this was
Speaker 1: a procedural ruling based on the standing of the plaintiffs
Speaker 1: Maryland and d C to bring the lawsuit. Tell us
Speaker 1: what the Fourth Circuit decided? Sure, John, that's exactly right.
Speaker 1: This is a threshold issue. The Fourth Circuit didn't reach
Speaker 1: the merits of the argument of whether or whether or
Speaker 1: not President Trump has violent that the emoluments clause or
Speaker 1: what the emoluments clause means today. It's something that really
Speaker 1: has never been interpreted by a court. Um what the
Speaker 1: Fourth Circuit decided is that the District of Columbia and
Speaker 1: the State of Maryland didn't have what's called standing. A
Speaker 1: basic requirement of bringing a lawsuit in a federal court
Speaker 1: is that you have to have standing. What that means
Speaker 1: is you have to show you have an actual or
Speaker 1: imminent injury. The requirement is intended to prevent people from
Speaker 1: just coming into court and seeking a judgment based on
Speaker 1: what they think the law is or what the constitution means.
Speaker 1: They may just have a generalized grievance. The standing requirement
Speaker 1: assures that you have some skin in the game, that
Speaker 1: you actually have something at risk, that this is a
Speaker 1: true legal case or controversy. Now, the argument that Maryland
Speaker 1: and the District of Columbia made was their injury was
Speaker 1: lost business. President Trump gets a lot of business at
Speaker 1: his hotel in Washington. They said that both domestic and
Speaker 1: foreign clients steer their business to the Trump hotel in
Speaker 1: order to curry favor with the president, and that likely
Speaker 1: hurts business at convention centers and other facilities that Maryland
Speaker 1: and d C operate. What the Fourth Circuit said was
Speaker 1: that is simply too speculative that for standing purposes, your
Speaker 1: injury can't be that much a matter of guesswork. They
Speaker 1: couldn't prove that they had actually lost any business for
Speaker 1: the Trump Hotel. And so with fourth circuit set is
Speaker 1: because you don't really have any evidence, you're just speculating
Speaker 1: here that you might have lost business that might have
Speaker 1: come to you instead of going to Trump. Sorry for
Speaker 1: constitutional purposes, you don't have the required injury. So another
Speaker 1: emoluments lawsuit filed by congressional Democrats with a different twist
Speaker 1: from this suit, is before the U. S. Court of
Speaker 1: Appeals in d C. Might they have better luck with
Speaker 1: the standing issue? It's possible. There aren't a lot of
Speaker 1: clear answers about the standing of elected officials to bring
Speaker 1: a suit when they say, hey, our prerogatives are at
Speaker 1: stake here, our constitutional responsibilities are being trampled on, and
Speaker 1: d s the Trump administration or President Trump is also
Speaker 1: relying on the argument that this suit must be dismissed
Speaker 1: because it's a distraction from his official responsibilities. One thing
Speaker 1: about the so called standing doctrine is that I think
Speaker 1: most law professors and law students who learn about it
Speaker 1: realize it's extraordinarily malleable. And that is sometimes courts and
Speaker 1: judges will use standing and the absence of standing or
Speaker 1: the presence of standing to get rid of a case
Speaker 1: that they think they don't want to deal with, or
Speaker 1: to signal what they really think about the merits. You
Speaker 1: know that there have been cases I teach my students
Speaker 1: where say, a state has said the federal government's failure
Speaker 1: to regulate c O. Two was contributing to the laws
Speaker 1: of each land. Is that really more attenuated or more
Speaker 1: speculative than what the state attorneys general we're arguing here.
Speaker 1: We'll see there is another body of doctrine about elected officials,
Speaker 1: members of Congress, and they're standing to sue the executive branch.
Speaker 1: We'll see what the DC sergeant says about that. So, Steve,
Speaker 1: you have these emoluments clauses in the Constitution. So the
Speaker 1: framers thought it was an important concept. Who gets to
Speaker 1: enforce them? If neither Congress can enforce them, if a
Speaker 1: state can enforce them, who will enforce them? Well, this
Speaker 1: is a very interesting and legitimate question, and it is
Speaker 1: not really limited to a molument. So emoluments is interesting
Speaker 1: because it has never really been the subject of authoritative
Speaker 1: interpretation by the modern Supreme Court. What exactly it means
Speaker 1: to violate emoluments. But you know that is a dilemma
Speaker 1: in much constitutional law that just because I as a
Speaker 1: citizen and convinced that the government is violating the constitut Susan,
Speaker 1: I can't just bring a lawsuit. I have to show
Speaker 1: I'm injured, and sometimes that kind of injury is difficult
Speaker 1: to prove. And so in this situation, who is injured
Speaker 1: by the president illegally profiting allegedly from his businesses? So far,
Speaker 1: all the people who say they've had injuries from that
Speaker 1: are striking out. In the Federal court, this case was
Speaker 1: decided by a panel of three judges, all appointed by
Speaker 1: Republican presidents. The plaintiffs could ask for an on bank
Speaker 1: hearing before the full Court, which is not as conservative
Speaker 1: as these three judges are. They could ask to go
Speaker 1: to the Supreme Court. What do you think they should do? Well,
Speaker 1: I think they should probably pursue both of those courses.
Speaker 1: It is typical when you believe that a panel of
Speaker 1: the Court of Appeals has aired, to ask the full court,
Speaker 1: all the judges, the on bunk court to reconsider the decision.
Speaker 1: If you do that, you're not forfeiting your right to
Speaker 1: eventually go to the Supreme Court. If the Fourth Circuit
Speaker 1: were to rule as them as well, I think they
Speaker 1: should pursue all of their options here. Again, standing is
Speaker 1: one of those doctrines that's malleable, and sometimes the injuries
Speaker 1: in the eye beholder and larger factors and courts attitudes
Speaker 1: towards the merits will sometimes influence whether they think that
Speaker 1: again should be allowed to gain the courthouse door or not.
Speaker 1: And Trump and his attorneys are succeeding in that none
Speaker 1: of these cases has gone into discovery, and so there's
Speaker 1: no attorneys or Democrats looking into his finances to see
Speaker 1: whether he did violate the emoluments clause. That's correct. Now,
Speaker 1: presumably Congress could hold hearings about this. Congress can can
Speaker 1: pursue this a different way. Congress can investigate and make
Speaker 1: conclusions about whether it thinks the president is violated the clause.
Speaker 1: Those don't have the force of law. But of course
Speaker 1: we see this administration frankly stonewalling efforts by Congress to
Speaker 1: conduct inquiries as well. There are even more subpoenas being issued.
Speaker 1: Is it likely that as we get higher and up
Speaker 1: in the federal courts that Democrats will have more problems
Speaker 1: with appellate courts on these issues. Yeah, I don't think
Speaker 1: we can necessarily see that. I think many of us
Speaker 1: in legal academias are brown on this idea that we've
Speaker 1: decided what the outcome of court decisions is going to
Speaker 1: be by the partisan membership of the judges. I think
Speaker 1: we can hope that won't be the case. But there
Speaker 1: are good judges out there who will try as hard
Speaker 1: as they can to to adjudicate these cases fairly and
Speaker 1: to explain their reasons persuasively in opinions. All right, well,
Speaker 1: you explained very persuasively the reasons here. Thank you so much, Steve.
Speaker 1: As always, that's Steve Sanders. He's a professor at the
Speaker 1: Marrow School of Law at Indiana University. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
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Speaker 1: dot com Slash podcasts. I'm June Ball, So this is
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