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 insight and 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 --> 00:00:16,120 Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud, 5 00:00:16,280 --> 00:00:20,200 Speaker 1: and on Bloomberg dot com slash podcasts. President Trump's decision 6 00:00:20,239 --> 00:00:22,880 Speaker 1: to host the G seven summit at his deral resort 7 00:00:22,960 --> 00:00:27,840 Speaker 1: sparked an immediate backlash and concerns that Trump continues to dismiss. 8 00:00:28,240 --> 00:00:31,400 Speaker 1: I don't think you people in this Phonia monuments laws. 9 00:00:31,840 --> 00:00:35,040 Speaker 1: And by the way, I would say that it's cost 10 00:00:35,080 --> 00:00:37,720 Speaker 1: me anywhere from two to five billion dollars to be president, 11 00:00:37,760 --> 00:00:40,600 Speaker 1: and that's okay. Between what I lose and what I 12 00:00:40,600 --> 00:00:43,080 Speaker 1: could have made, I would have made a fortune. The 13 00:00:43,159 --> 00:00:46,559 Speaker 1: President reversed himself on that decision, and a federal appeals 14 00:00:46,600 --> 00:00:49,239 Speaker 1: court is now in a position to reverse itself on 15 00:00:49,320 --> 00:00:52,400 Speaker 1: the question of whether Trump used his office to enrich 16 00:00:52,479 --> 00:00:56,720 Speaker 1: himself in violation of the Constitution's emoluments clauses. The US 17 00:00:56,760 --> 00:00:59,840 Speaker 1: Appeals Court for the Fourth Circuit in Virginia has voted 18 00:00:59,880 --> 00:01:02,720 Speaker 1: to re here an emoluments case brought by the Attorneys 19 00:01:02,760 --> 00:01:05,959 Speaker 1: General of d C in Maryland on bank joining me 20 00:01:06,040 --> 00:01:08,800 Speaker 1: is Andrew Kent, a professor at Fordham Law School. So 21 00:01:09,080 --> 00:01:11,760 Speaker 1: the case will be reheard on December twelve with the 22 00:01:11,840 --> 00:01:15,880 Speaker 1: full Fourth Circuit fifteen judges or more and on bank hearing, 23 00:01:16,280 --> 00:01:19,800 Speaker 1: which is rare in any circuit. How significant is this 24 00:01:20,360 --> 00:01:24,120 Speaker 1: I think it is significant. It usually signals that there's uh, 25 00:01:24,120 --> 00:01:26,560 Speaker 1: you know, a pretty decent number of judges who are 26 00:01:26,560 --> 00:01:30,240 Speaker 1: dissatisfied with what the three judge panel did. So it 27 00:01:30,240 --> 00:01:33,479 Speaker 1: could be bad news for President Trump. Possibly. We've heard 28 00:01:33,520 --> 00:01:37,319 Speaker 1: the term emoluments a lot since Trump became president. Have 29 00:01:37,480 --> 00:01:42,240 Speaker 1: the legal issues around the emoluments clauses been interpreted by 30 00:01:42,280 --> 00:01:45,480 Speaker 1: the courts very little? There's a little bit of activity. 31 00:01:45,520 --> 00:01:47,960 Speaker 1: And these are the first times ever that courts have 32 00:01:48,040 --> 00:01:52,320 Speaker 1: interpreted the monuments clauses of the Constitution. There's been, you know, 33 00:01:52,480 --> 00:01:56,800 Speaker 1: some differences of opinion about it, and certainly the plaintiffs 34 00:01:56,840 --> 00:01:59,200 Speaker 1: in these cases and President Trump and his lawyers have 35 00:01:59,360 --> 00:02:02,920 Speaker 1: extremely front views about what the amoluments clauses prohibit. Can 36 00:02:02,960 --> 00:02:06,640 Speaker 1: you generally say what those views are? Sure? The President's 37 00:02:06,720 --> 00:02:09,119 Speaker 1: view is is that, you know, among other things, sort 38 00:02:09,120 --> 00:02:13,320 Speaker 1: of ordinary commercial transactions, you might say, arms length transactions 39 00:02:13,320 --> 00:02:17,200 Speaker 1: such as Kuwaiti and Saudi government officials staying at the 40 00:02:17,240 --> 00:02:19,560 Speaker 1: Trump hotel, which is one of the allegations, and the 41 00:02:19,560 --> 00:02:22,800 Speaker 1: Planets complained. They would say that those are not the 42 00:02:22,840 --> 00:02:24,600 Speaker 1: type of thing that are covered by the clause. The 43 00:02:24,600 --> 00:02:27,520 Speaker 1: clause would ban giving you a cash payment to the 44 00:02:27,520 --> 00:02:29,959 Speaker 1: president or something like that, But when the president is 45 00:02:30,040 --> 00:02:33,360 Speaker 1: offering goods to the market generally and a foreign government 46 00:02:33,400 --> 00:02:36,560 Speaker 1: happens to to purchase them, they would say that's not 47 00:02:36,600 --> 00:02:39,240 Speaker 1: an a molument. And the Planets have a much broader view. 48 00:02:39,720 --> 00:02:42,919 Speaker 1: They essentially think that any kinds of payments, including profits 49 00:02:42,919 --> 00:02:46,600 Speaker 1: from ordinary commercial transactions from foreign governments, you know, could 50 00:02:46,680 --> 00:02:50,799 Speaker 1: violate the foreign amoluments clause. So with President Trump maintaining 51 00:02:50,880 --> 00:02:54,959 Speaker 1: his ownership in companies that do business with foreign diplomats, 52 00:02:55,120 --> 00:02:58,239 Speaker 1: it's sort of hard to see the line. Did Trump's 53 00:02:58,360 --> 00:03:02,760 Speaker 1: choice of his direct raw resort cross the line? You know? 54 00:03:02,800 --> 00:03:05,359 Speaker 1: I think even he may have recognized that across the line, 55 00:03:05,400 --> 00:03:09,520 Speaker 1: since he walked it back pretty quickly. Government ethicists were 56 00:03:09,560 --> 00:03:14,360 Speaker 1: outraged about that pretty uniformly. Steering a contract to yourself 57 00:03:14,639 --> 00:03:17,200 Speaker 1: is pretty much at the core of the criminal law 58 00:03:17,280 --> 00:03:21,400 Speaker 1: against using the government's money. So yeah, I think a 59 00:03:21,400 --> 00:03:23,640 Speaker 1: lot of people felt across the line, and then depending 60 00:03:23,639 --> 00:03:26,520 Speaker 1: on what the financial arrangements would have been, you know, 61 00:03:26,600 --> 00:03:28,920 Speaker 1: the plantiffs in these cases that the Fourth Circus hearing 62 00:03:28,960 --> 00:03:31,680 Speaker 1: would also, I think, have thought that there were moluments 63 00:03:31,800 --> 00:03:34,840 Speaker 1: violations when foreign governments would have been paying Trump to 64 00:03:34,880 --> 00:03:39,320 Speaker 1: stay at the Durell Resort. From everything that his acting 65 00:03:39,400 --> 00:03:43,400 Speaker 1: chief of Staff McK mulvaney said, the President was surprised 66 00:03:43,640 --> 00:03:47,800 Speaker 1: at the blowback, and the reversal wasn't based on legal considerations. 67 00:03:47,840 --> 00:03:51,160 Speaker 1: It seemed to be based on political considerations. Yeah, I 68 00:03:51,240 --> 00:03:54,320 Speaker 1: can't imagine how they could have truly have been surprised. 69 00:03:54,320 --> 00:03:57,760 Speaker 1: It was just, on its face, just pretty outrageous. But 70 00:03:57,960 --> 00:04:00,240 Speaker 1: you know, maybe maybe they were surprised. I think you 71 00:04:00,240 --> 00:04:02,000 Speaker 1: remember this is you know, the president, who you know 72 00:04:02,160 --> 00:04:05,080 Speaker 1: was was supposedly surprised that people were upset when he 73 00:04:05,080 --> 00:04:08,120 Speaker 1: fired Jim comey um. You know that was the reporting 74 00:04:08,160 --> 00:04:10,120 Speaker 1: that that happened at the time too, So you know, 75 00:04:10,640 --> 00:04:13,880 Speaker 1: maybe and the political feelers about what's gonna what's going 76 00:04:13,960 --> 00:04:16,240 Speaker 1: to seem you know, really across the line to a 77 00:04:16,320 --> 00:04:18,120 Speaker 1: lot of people are not what they have been for 78 00:04:18,160 --> 00:04:21,400 Speaker 1: other presidents. I'm not sure is a violation of the 79 00:04:21,400 --> 00:04:26,200 Speaker 1: emoluments clauses an impeachable offense. I would think that it 80 00:04:26,360 --> 00:04:28,919 Speaker 1: certainly could be. You know, the impeachable offenses are. You know, 81 00:04:28,920 --> 00:04:30,840 Speaker 1: there's obviously a lot of disagreement about it, but at 82 00:04:30,880 --> 00:04:33,960 Speaker 1: its core are kind of great abuses of the office. 83 00:04:34,200 --> 00:04:37,600 Speaker 1: You know, certainly abusing the office for personal gain would 84 00:04:37,640 --> 00:04:40,160 Speaker 1: be at the core of the kinds of things that 85 00:04:40,160 --> 00:04:43,040 Speaker 1: that motivated putting the impeachment clause in the Constitution. I mean, 86 00:04:43,120 --> 00:04:45,360 Speaker 1: the folks who wrote the Constitution were very worried about 87 00:04:45,440 --> 00:04:48,919 Speaker 1: corruption and an influence coming from foreign governments because remember, 88 00:04:48,920 --> 00:04:51,880 Speaker 1: the United States was quite small and weak when you know, 89 00:04:51,920 --> 00:04:54,920 Speaker 1: we were first independent. So it's easy to find the 90 00:04:55,000 --> 00:04:58,039 Speaker 1: quotes from James Madison and people like that, basically saying 91 00:04:58,040 --> 00:05:00,960 Speaker 1: the president who kind of sells out the United States 92 00:05:01,040 --> 00:05:04,120 Speaker 1: for the luker of a foreign country should be subject 93 00:05:04,160 --> 00:05:06,200 Speaker 1: to impeachment. So this this is pretty close to the 94 00:05:06,240 --> 00:05:09,679 Speaker 1: core of what impeachment is. For the Fourth Circuit hearing 95 00:05:09,880 --> 00:05:13,880 Speaker 1: this case on Bank is the second major setback for 96 00:05:14,000 --> 00:05:17,680 Speaker 1: Trump in emoluments cases. Last month, the Second Circuit Court 97 00:05:17,680 --> 00:05:20,960 Speaker 1: of Appeals in Manhattan revived a similar lawsuit that had 98 00:05:20,960 --> 00:05:24,279 Speaker 1: been dismissed by a federal judge in that decision. Did 99 00:05:24,320 --> 00:05:29,240 Speaker 1: the Second Circuit basically criticize the Fourth Circuit? So there 100 00:05:29,279 --> 00:05:31,839 Speaker 1: are different views between the courts. I mean, courts tried 101 00:05:31,880 --> 00:05:35,800 Speaker 1: to be collegial. They can and do disagree about things. 102 00:05:35,800 --> 00:05:37,680 Speaker 1: I mean, I think one of the many things that 103 00:05:37,760 --> 00:05:39,520 Speaker 1: might be why the Fourth Circuit is rehearing it is 104 00:05:39,800 --> 00:05:43,720 Speaker 1: the panel opinion. The three judge opinion was extremely dismissive 105 00:05:44,480 --> 00:05:46,400 Speaker 1: of the lawsuit. I mean, there's the language in there 106 00:05:46,440 --> 00:05:49,240 Speaker 1: that feels maybe even a little unnecessary saying that basically, 107 00:05:49,640 --> 00:05:52,000 Speaker 1: you know, why do Maryland and d C even think 108 00:05:52,040 --> 00:05:53,920 Speaker 1: that this is a proper case to come to court? 109 00:05:53,960 --> 00:05:56,479 Speaker 1: And almost a suggestion that they're kind of wasting the 110 00:05:56,480 --> 00:05:59,680 Speaker 1: court's time by bringing the case. Second Circuit has a 111 00:05:59,800 --> 00:06:05,440 Speaker 1: very different view. You know, the primary regulator of presidential 112 00:06:05,440 --> 00:06:07,960 Speaker 1: emoluments is supposed to be Congress. You know, the constitutions 113 00:06:08,040 --> 00:06:12,240 Speaker 1: suggests that Congress could decide to permit certain emoluments or 114 00:06:12,400 --> 00:06:15,240 Speaker 1: gifts from foreign countries if they wanted to to the president. 115 00:06:15,720 --> 00:06:18,440 Speaker 1: But simply because Congress has a role to play here, 116 00:06:18,600 --> 00:06:21,039 Speaker 1: I don't think that means as the Fourth Circuit suggested that, 117 00:06:21,120 --> 00:06:24,400 Speaker 1: you know, there's no business at all for judicial review 118 00:06:24,480 --> 00:06:27,920 Speaker 1: of the constitutionality. So you know, they're pretty different, pretty 119 00:06:27,920 --> 00:06:31,000 Speaker 1: different approaches to the sort of propriety of judicial oversight 120 00:06:31,040 --> 00:06:33,719 Speaker 1: by the two courts. What is it that the appellate 121 00:06:33,760 --> 00:06:36,440 Speaker 1: courts are seeing that the lower courts are not, or 122 00:06:36,640 --> 00:06:39,960 Speaker 1: is it based on whether a court is more conservative 123 00:06:40,040 --> 00:06:42,960 Speaker 1: or more liberal. So the issue of standing, which is 124 00:06:43,000 --> 00:06:45,480 Speaker 1: the question about sort, is this the right plain iff 125 00:06:45,560 --> 00:06:48,479 Speaker 1: to bring? This claim is one that a lot of 126 00:06:48,480 --> 00:06:52,520 Speaker 1: people think is fairly political in the sense of not 127 00:06:52,640 --> 00:06:56,799 Speaker 1: partisan politics. But it can be influenced by judges predispositions 128 00:06:56,800 --> 00:06:59,640 Speaker 1: and ideologies about an issue. And that's because the law 129 00:06:59,720 --> 00:07:02,719 Speaker 1: is a mushy and you often see a lot of 130 00:07:02,760 --> 00:07:05,640 Speaker 1: five four splits in the Supreme Court on standing questions. 131 00:07:06,040 --> 00:07:09,200 Speaker 1: You know. So generally speaking, more liberal judges and justices 132 00:07:09,279 --> 00:07:11,760 Speaker 1: tend to want the courts to be more broadly open 133 00:07:12,200 --> 00:07:14,680 Speaker 1: to hear a wider range of kinds of claims, and 134 00:07:14,800 --> 00:07:19,120 Speaker 1: especially claims maybe about government illegality, And generally speaking, more 135 00:07:19,120 --> 00:07:22,040 Speaker 1: conservative judges and justice tend to want sort of stricter 136 00:07:22,200 --> 00:07:25,400 Speaker 1: rules about who can come into court and fewer lawsuits 137 00:07:25,440 --> 00:07:29,760 Speaker 1: about challenging government illegality. So I think withstanding questions about 138 00:07:29,760 --> 00:07:33,760 Speaker 1: suing a sitting president. It's probably somewhat inevitable that there 139 00:07:33,800 --> 00:07:37,000 Speaker 1: might be different perspectives on the issue between more liberal 140 00:07:37,040 --> 00:07:40,120 Speaker 1: and more conservative justice and judges. In the three judges 141 00:07:40,240 --> 00:07:43,240 Speaker 1: that heard the original case in the Fourth Circuit were 142 00:07:43,360 --> 00:07:46,720 Speaker 1: Republican appointees, and by an eight to seven margin, the 143 00:07:46,760 --> 00:07:50,680 Speaker 1: full on Band Court is just barely Democratic appointees in 144 00:07:50,680 --> 00:07:53,480 Speaker 1: the majority. So just because of that, and because of 145 00:07:53,480 --> 00:07:55,840 Speaker 1: the nature of these standing issues, and because of kind 146 00:07:55,840 --> 00:07:59,120 Speaker 1: of the inherently sensitive political nature of lawsuits against the 147 00:07:59,120 --> 00:08:01,680 Speaker 1: president of the United States, there could well be a 148 00:08:01,680 --> 00:08:04,880 Speaker 1: shift between the the original panel and the larger court 149 00:08:04,960 --> 00:08:09,240 Speaker 1: because of the democratic appointing majority. Another federal appeals court, 150 00:08:09,280 --> 00:08:12,880 Speaker 1: the d C. Circuit, is also considering an emoluments lawsuit. 151 00:08:13,200 --> 00:08:16,640 Speaker 1: So you have these different cases bouncing back and forth 152 00:08:17,280 --> 00:08:20,120 Speaker 1: from the appellate court of the district court, and in 153 00:08:20,200 --> 00:08:21,960 Speaker 1: the end, is it going to the Supreme Court that 154 00:08:22,040 --> 00:08:26,560 Speaker 1: makes a final decision on what violates the emoluments clauses. 155 00:08:27,120 --> 00:08:28,840 Speaker 1: I would think that this is the kind of case 156 00:08:28,880 --> 00:08:31,120 Speaker 1: that the Spreme Court would feel that they would need 157 00:08:31,160 --> 00:08:33,320 Speaker 1: to take. You know, the court doesn't have to take 158 00:08:33,480 --> 00:08:36,440 Speaker 1: almost any case. It has a wider amount of discretion, 159 00:08:36,880 --> 00:08:40,880 Speaker 1: but they generally think that cases of exceptional public interests 160 00:08:40,880 --> 00:08:44,640 Speaker 1: in public importance, especially something like this that involves a 161 00:08:44,720 --> 00:08:48,720 Speaker 1: novel clause of the Constitution being applied against a sitting president. 162 00:08:48,800 --> 00:08:51,360 Speaker 1: You know, there's a lot of reasons why the Supreme 163 00:08:51,360 --> 00:08:53,920 Speaker 1: Court would think that they should ultimately step in here 164 00:08:53,960 --> 00:08:57,120 Speaker 1: and resolve these questions. But Andrew, how long would it 165 00:08:57,160 --> 00:08:59,440 Speaker 1: be before the Supreme Court could hear that? Might it 166 00:08:59,480 --> 00:09:03,960 Speaker 1: be before elections or not? Well, Supreme Court has a 167 00:09:03,960 --> 00:09:05,520 Speaker 1: lot of control over that, so that you know, the 168 00:09:05,559 --> 00:09:09,920 Speaker 1: Court can and sometimes does act exceptionally quickly when they 169 00:09:09,960 --> 00:09:12,319 Speaker 1: feel the need to. So you know, we all remember 170 00:09:12,400 --> 00:09:16,200 Speaker 1: the litigation coming out of the contested two thousand election 171 00:09:16,280 --> 00:09:19,560 Speaker 1: between Al Gore and George W. Bush. Their Spreme Court 172 00:09:19,640 --> 00:09:22,600 Speaker 1: was acting within days to schedule arguments and to hear 173 00:09:22,600 --> 00:09:26,360 Speaker 1: cases and issue decisions extremely quickly. The Court has the 174 00:09:26,400 --> 00:09:28,520 Speaker 1: ability to do that if it wants to, but they 175 00:09:28,559 --> 00:09:30,440 Speaker 1: don't always want to. Um, you know, there might be 176 00:09:30,520 --> 00:09:33,680 Speaker 1: reasons why they would prefer to just have a case 177 00:09:33,720 --> 00:09:36,199 Speaker 1: on an ordinary schedule and let you know, months go 178 00:09:36,280 --> 00:09:39,199 Speaker 1: in between the filing of briefs and and all these things. 179 00:09:39,200 --> 00:09:42,199 Speaker 1: So you know, we shouldn't think that the Court doesn't 180 00:09:42,240 --> 00:09:44,480 Speaker 1: have the ability to do this fast. They do have 181 00:09:44,520 --> 00:09:46,880 Speaker 1: the ability, and so they I think we'll be signaling 182 00:09:47,360 --> 00:09:51,040 Speaker 1: something pretty important about their preferences, you know, when we 183 00:09:51,080 --> 00:09:54,040 Speaker 1: see once they're asked to step in, whether they do so, 184 00:09:54,240 --> 00:09:56,720 Speaker 1: and what kind of schedule they set for themselves. Thanks Andrew. 185 00:09:57,040 --> 00:10:03,080 Speaker 1: That's Andrew can To, professor at Fordham Law School. Thanks 186 00:10:03,080 --> 00:10:06,360 Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe 187 00:10:06,400 --> 00:10:09,640 Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and 188 00:10:09,679 --> 00:10:13,439 Speaker 1: on Bloomberg dot com slash podcast. I am June Brosso. 189 00:10:13,920 --> 00:10:15,240 Speaker 1: This is Bloomberg