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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Remember how President

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Speaker 1: Trump described the Constitution's emoluments clauses in October. I don't

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Speaker 1: think you people in this phonium monuments laws. And by

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Speaker 1: the way, I would say that it's cost to be

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Speaker 1: anywhere from two to five billion dollars to be president. Well,

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Speaker 1: during arguments last Thursday before a fifteen judge of Pellet

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Speaker 1: panel in Richmond, Virginia, a Justice Department lawyer Hashimmupan tried

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Speaker 1: to walk that comment back when Judge Robert King put

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Speaker 1: him on the spot. He characterizes phony evoluments clause. Now,

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Speaker 1: what's the irrelevancy of that, honor? I think any fair

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Speaker 1: characterization of what he said is he's calling the cleans

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Speaker 1: here for he's not the exist and some minds he

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Speaker 1: called them bony evoluments clause. I understand your, honor, And

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Speaker 1: it was either a tweet or off the cuffs team,

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Speaker 1: and they are two clauses of the Constitution written in

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Speaker 1: an on bank panel of the Fourth Circuit was considering

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Speaker 1: one of three lawsuits accusing Trump of flouting the constitutions

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Speaker 1: emoluments clauses. This lawsuit by the Attorneys General of Maryland

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Speaker 1: in d C. Joining me as Josh Blackman, a professor

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Speaker 1: of constitutional law at the South Texas College of Law, Josh,

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Speaker 1: is there a precedent here or is this completely uncharted territory? Well,

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Speaker 1: until two thousand and seventeen, there are zero litigation over

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Speaker 1: both the Foreign and Domestical Mouths clause. These are fairly

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Speaker 1: obscure provisions of the Constitution that were never ever litigated,

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Speaker 1: and is really not much precedent on them. In the

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Speaker 1: Fourth Circuit case, a three judge panel had thrown the

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Speaker 1: case out and ruled in favor of President Trump, and

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Speaker 1: then the entire circuit and on bank panel heard the case.

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Speaker 1: How unusual is it to have an on bank panel

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Speaker 1: in the Fourth Circuit. It's fairly rare for the Court

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Speaker 1: of Appeals to hear case on blank. I have to

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Speaker 1: guess maybe ten to twenty cases a year out of

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Speaker 1: hundreds ever make it to the full court. But the

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Speaker 1: Fourth Circuit heard on bonk on a fairly narrow and

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Speaker 1: really not a very sexy issue. It wasn't on bonk

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Speaker 1: hearing for whether the president was violenting the Constitution. The

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Speaker 1: question they're concerned what happens when the district court screws

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Speaker 1: up in this case the lower court declined to allow

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Speaker 1: an appeal in the middle of the case, And what

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Speaker 1: happens when the district court does not allow an appeal? Well,

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Speaker 1: the Court of Appeals that, well, too bad, we don't care.

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Speaker 1: We're gonna dismiss the case outright. And that probably wasn't

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Speaker 1: the right path. I think the Fourth Circuit will say

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Speaker 1: that when the district court won't allow an appeal, you

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Speaker 1: have to let the case go through its natural conclusion

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Speaker 1: before you can take it to the quot repeals. You

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Speaker 1: can't do this sort of stop gap appeal in the middle.

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Speaker 1: I mean, that's probably what the quote will hold here.

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Speaker 1: But the judges did discuss the standing issue whether the

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Speaker 1: d C and Maryland a g S had standing to

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Speaker 1: bring the suit. That's right. The basis of these suits

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Speaker 1: is actually fairly business related. In Maryland, the Maryland government

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Speaker 1: owns a hotel, the Befesdan Marriott, and in d C.

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Speaker 1: The DC government owns the DC Convention Center, and these

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Speaker 1: businesses are competing in theory at least with Trump International

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Speaker 1: Hotel in Washington, d C. And these businesses have said

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Speaker 1: that they are at an unfair competitive advantage because they

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Speaker 1: can't offer foreign guests this sort of benefit of staying

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Speaker 1: in the President's hotel. That's certain perk that they can't

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Speaker 1: hand out. And they've argued because they're being injured competitively,

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Speaker 1: they can go to federal court to seek a remedy

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Speaker 1: for their injury, which in this case will be telling

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Speaker 1: the president to stop except thing these sorts of foreign payments.

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Speaker 1: There were three hours of arguments and they seemed really spirited,

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Speaker 1: sharp questions, challenging the attorneys on many different points. Judge

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Speaker 1: Harvey Wilkinson dominated the questioning, we're up here making it up,

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Speaker 1: we're weighing in. There's no history that authorizes it, there's

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Speaker 1: no precedent that authorizes it, there's no right conferred that

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Speaker 1: authorizes it. This one's a lemon. It's it's the weakest

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Speaker 1: of the cases that are springing up like Jimson weed

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Speaker 1: against the presidency in this environment. Well I was in

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Speaker 1: the court in Richmond nearly three hours for like a

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Speaker 1: lot longer to the argument, Judge Wilkinson is fairly conservative

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Speaker 1: in the old school sense. He does not believe that

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Speaker 1: the court should inject themselves into these fairly aggressive sorts

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Speaker 1: of cases. There's no experience, there's no history, there's no

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Speaker 1: tradition of the court tell of the president what kind

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Speaker 1: of payments you can accept. This was usually something worked

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Speaker 1: out between the branches, and I think Judge Wilkinson was

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Speaker 1: worried about what happens if the courts take up this

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Speaker 1: novel claim and inject themselves and what could very well

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Speaker 1: be an impeachable offense. I think Wilkinson would say, this

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Speaker 1: is not for the course of the slives for the

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Speaker 1: political branches to handle. The Justice Department lawyers ended up

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Speaker 1: explaining away a comment that President Trump made about the

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Speaker 1: emoluments clause as phony. How did that come across in

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Speaker 1: the courtroom. Well, look, President Trump makes his lawyers a

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Speaker 1: very hard job because he says and tweets all this

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Speaker 1: really dumb stuff. So at one point Trump stated, or

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Speaker 1: maybe he tweeted, you know that we have this phony

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Speaker 1: moluments clause, right, and the judge as well, well the

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Speaker 1: president these moluments clauses are phony, and the lawyer said

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Speaker 1: that he wasn't saying that the clauses are phony. He's

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Speaker 1: referring to the litigation the cases, which I think he's

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Speaker 1: probably a plausible reading of. The president sweets franctly they're irrelevant.

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Speaker 1: I don't think it really managed the courts where the

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Speaker 1: president thinks these clauses a phony or not. The issue

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Speaker 1: is fairly narrow that the courts are here to decide.

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Speaker 1: I think a lot of these judges are more interested

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Speaker 1: in getting sound bites and they are just in act

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Speaker 1: making legal arguments. Did it seem as if one side

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Speaker 1: was going to win the argument? Did it seem fairly divided?

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Speaker 1: Or you just can't tell. Oh, I think Trump's going

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Speaker 1: to lose. This is a court where I think the

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Speaker 1: majority of the judges are willing to say that the

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Speaker 1: president's appeal was not proper. Now, let's just be very

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Speaker 1: careful here. I don't think the court here will hold

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Speaker 1: that the president is violing the Constitution. I think they'll

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Speaker 1: he'll hold more narrowly that unless the district judge, the

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Speaker 1: trial judge allows the appeal to proceed, than the appellate

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Speaker 1: court has no authority to act that you need to

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Speaker 1: wait through the district courts act first, and I think

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Speaker 1: that's that's where they're gonna wind up. Can you explain

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Speaker 1: why the district court decided that there was no appeal possible? Well,

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Speaker 1: generally you can take an appeal after a judge makes

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Speaker 1: a final ruling. For example, we dismiss a case, you

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Speaker 1: can appeal that. Here the judge is something separately, he

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Speaker 1: declined to dismiss the case that I want the case

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Speaker 1: to go forward. And generally you can't appeal a denial

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Speaker 1: of a dismissive this you can't appeal it where you

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Speaker 1: don't have a final decision. And the government said, come on,

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Speaker 1: this is the president of the United States. Can't you

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Speaker 1: let us take an early appeal? And the judge said, no,

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Speaker 1: I don't think this case warrants it. You know, I

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Speaker 1: think my opinions reasonable people aren't going to disagree with me.

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Speaker 1: Let's proceed. I think that was almost certainly an error.

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Speaker 1: But what happens when this judge makes a mistake. Can

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Speaker 1: you tell a court they say no, no, no, you're wrong,

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Speaker 1: And there's some good authority to say that. Know that

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Speaker 1: when you have this sort of transigent district court judge,

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Speaker 1: you're sort of stuck with it now. I'll just put

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Speaker 1: disclosure that I filed amicus briefs. It's for the president

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Speaker 1: in all these cases are when in Maryland, when in

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Speaker 1: New York, and when in d C. So I do

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Speaker 1: have a bit of a dog in the fight. I

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Speaker 1: think the disrec court judge here behaved improperly. What was

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Speaker 1: the three judge panels ruling? Then? The three judge panel

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Speaker 1: remarkably actually not only took the case away sly disrecord,

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Speaker 1: they dismissed it outright. They didn't attend it back to

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Speaker 1: the further consideration. They said, too bad, you screwed up.

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Speaker 1: This case is over, which I think was probably not

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Speaker 1: the strongest holding. This case is a lot of bizarre angles.

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Speaker 1: Tell me why you filed amicus briefs in all these cases.

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Speaker 1: I follow them because I'm a glutton for punishments. No,

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Speaker 1: our position is a little bit obscure. I represent Professor

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Speaker 1: Stepan Barrett Kilman, who is a constitution law professor in Ireland,

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Speaker 1: and for many years Professor Tilman has studied the Constitution

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Speaker 1: text very carefully, and our theory, and this theory predates Trump,

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Speaker 1: but Our theory is that the Constitution uses the phrase

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Speaker 1: office and officer to refer to appointed positions on elected positions.

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Speaker 1: And they said, Josh, who cares. Well, if we look

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Speaker 1: at the text of the foreign Emolument's clause, it applies

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Speaker 1: to those whold office under the United States. We think

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Speaker 1: this language for as people who are appointed by the government,

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Speaker 1: that is, you know, the Secretary of State or a

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Speaker 1: judge of the federal courts. Right, we don't think that

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Speaker 1: this language applies to elected positions. If we're right, then

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Speaker 1: the foreign of Mooluments clause simply doesn't limit the president's actions.

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Speaker 1: I can see this is some of an orthox position

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Speaker 1: as so far the courts haven't accepted it. Indeed, the

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Speaker 1: judges have mostly rejected our position. But we still think

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Speaker 1: we have a argument to make, and we keep making

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Speaker 1: it in any court don't listen to us. So, a

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Speaker 1: second emoluments case filed by two D fifteen Democratic members

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Speaker 1: of Congress is before the Federal Appeals Court in d C.

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Speaker 1: Any idea how that court might rule, Well, the DC

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Speaker 1: Circuit case June is really different. Let me explain to

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Speaker 1: you why here you had two members of Congress, Sue

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Speaker 1: and they argue that the pressment was violent in the Constitution.

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Speaker 1: This wasn't the House or presentative suiting or the Senate.

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Speaker 1: These were individual members. And there's a I think a

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Speaker 1: pretty good argument that individual members of Congress can't go

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Speaker 1: to court to sue, right, that's not what they're there for.

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Speaker 1: They can sue perhaps as a body, maybe the whole Congress,

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Speaker 1: they can't to individually. So I think the DC case

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Speaker 1: we thrown out because the members of Congress won't have

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Speaker 1: what's called standing. What about the third case at the

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Speaker 1: Second Circuit? In September, the Second Circuit Court of Appeals

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Speaker 1: in Manhattan ruled that a restaurant group had standing to

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Speaker 1: sue Trump. The Second Circuits in a different position. The

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Speaker 1: Second Circuit case was brought by business owners in New

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Speaker 1: York who in hotels and restaurants, and they claimed that

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Speaker 1: they were competing against Trump Tower Hotel in Midtown. The

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Speaker 1: disrecord in that case actually dismissed the case outright, but

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Speaker 1: then the Second Circuit Court Appeals, a three judge panel,

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Speaker 1: reversed and held that the case was proper. The government

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Speaker 1: filed a petition for re hearing on bank, that is,

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Speaker 1: re hearing before the entire court. That motion is impending

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Speaker 1: now for a couple of months, and we've not heard anything.

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Speaker 1: So we're a spot where the Second Circuit hasn't signaled

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Speaker 1: one or the other one. They're going to do the

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Speaker 1: Second Circuit historcually, here is very few cases on blanc,

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Speaker 1: so if the President loses that case, it's very lifely

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Speaker 1: goes to the Supreme Court. I think actually the Maryland

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Speaker 1: case in the New York case are very lifely extreame

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Speaker 1: Burton next year or so. Thanks Josh. That's Josh Blackman,

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Speaker 1: a professor of constitutional law at the South Texas College

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Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg