WEBVTT - 15 Judges Will Rehear Emoluments Case 0:00:03.520 --> 0:00:07.040 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.120 --> 0:00:09.680 day we bring you insight and analysis into the most 0:00:09.720 --> 0:00:12.200 important legal news of the day. You can find more 0:00:12.240 --> 0:00:16.120 episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud, 0:00:16.280 --> 0:00:20.200 and on Bloomberg dot com slash podcasts. President Trump's decision 0:00:20.239 --> 0:00:22.880 to host the G seven summit at his deral resort 0:00:22.960 --> 0:00:27.840 sparked an immediate backlash and concerns that Trump continues to dismiss. 0:00:28.240 --> 0:00:31.400 I don't think you people in this Phonia monuments laws. 0:00:31.840 --> 0:00:35.040 And by the way, I would say that it's cost 0:00:35.080 --> 0:00:37.720 me anywhere from two to five billion dollars to be president, 0:00:37.760 --> 0:00:40.600 and that's okay. Between what I lose and what I 0:00:40.600 --> 0:00:43.080 could have made, I would have made a fortune. The 0:00:43.159 --> 0:00:46.559 President reversed himself on that decision, and a federal appeals 0:00:46.600 --> 0:00:49.239 court is now in a position to reverse itself on 0:00:49.320 --> 0:00:52.400 the question of whether Trump used his office to enrich 0:00:52.479 --> 0:00:56.720 himself in violation of the Constitution's emoluments clauses. The US 0:00:56.760 --> 0:00:59.840 Appeals Court for the Fourth Circuit in Virginia has voted 0:00:59.880 --> 0:01:02.720 to re here an emoluments case brought by the Attorneys 0:01:02.760 --> 0:01:05.959 General of d C in Maryland on bank joining me 0:01:06.040 --> 0:01:08.800 is Andrew Kent, a professor at Fordham Law School. So 0:01:09.080 --> 0:01:11.760 the case will be reheard on December twelve with the 0:01:11.840 --> 0:01:15.880 full Fourth Circuit fifteen judges or more and on bank hearing, 0:01:16.280 --> 0:01:19.800 which is rare in any circuit. How significant is this 0:01:20.360 --> 0:01:24.120 I think it is significant. It usually signals that there's uh, 0:01:24.120 --> 0:01:26.560 you know, a pretty decent number of judges who are 0:01:26.560 --> 0:01:30.240 dissatisfied with what the three judge panel did. So it 0:01:30.240 --> 0:01:33.479 could be bad news for President Trump. Possibly. We've heard 0:01:33.520 --> 0:01:37.319 the term emoluments a lot since Trump became president. Have 0:01:37.480 --> 0:01:42.240 the legal issues around the emoluments clauses been interpreted by 0:01:42.280 --> 0:01:45.480 the courts very little? There's a little bit of activity. 0:01:45.520 --> 0:01:47.960 And these are the first times ever that courts have 0:01:48.040 --> 0:01:52.320 interpreted the monuments clauses of the Constitution. There's been, you know, 0:01:52.480 --> 0:01:56.800 some differences of opinion about it, and certainly the plaintiffs 0:01:56.840 --> 0:01:59.200 in these cases and President Trump and his lawyers have 0:01:59.360 --> 0:02:02.920 extremely front views about what the amoluments clauses prohibit. Can 0:02:02.960 --> 0:02:06.640 you generally say what those views are? Sure? The President's 0:02:06.720 --> 0:02:09.119 view is is that, you know, among other things, sort 0:02:09.120 --> 0:02:13.320 of ordinary commercial transactions, you might say, arms length transactions 0:02:13.320 --> 0:02:17.200 such as Kuwaiti and Saudi government officials staying at the 0:02:17.240 --> 0:02:19.560 Trump hotel, which is one of the allegations, and the 0:02:19.560 --> 0:02:22.800 Planets complained. They would say that those are not the 0:02:22.840 --> 0:02:24.600 type of thing that are covered by the clause. The 0:02:24.600 --> 0:02:27.520 clause would ban giving you a cash payment to the 0:02:27.520 --> 0:02:29.959 president or something like that, But when the president is 0:02:30.040 --> 0:02:33.360 offering goods to the market generally and a foreign government 0:02:33.400 --> 0:02:36.560 happens to to purchase them, they would say that's not 0:02:36.600 --> 0:02:39.240 an a molument. And the Planets have a much broader view. 0:02:39.720 --> 0:02:42.919 They essentially think that any kinds of payments, including profits 0:02:42.919 --> 0:02:46.600 from ordinary commercial transactions from foreign governments, you know, could 0:02:46.680 --> 0:02:50.799 violate the foreign amoluments clause. So with President Trump maintaining 0:02:50.880 --> 0:02:54.959 his ownership in companies that do business with foreign diplomats, 0:02:55.120 --> 0:02:58.239 it's sort of hard to see the line. Did Trump's 0:02:58.360 --> 0:03:02.760 choice of his direct raw resort cross the line? You know? 0:03:02.800 --> 0:03:05.359 I think even he may have recognized that across the line, 0:03:05.400 --> 0:03:09.520 since he walked it back pretty quickly. Government ethicists were 0:03:09.560 --> 0:03:14.360 outraged about that pretty uniformly. Steering a contract to yourself 0:03:14.639 --> 0:03:17.200 is pretty much at the core of the criminal law 0:03:17.280 --> 0:03:21.400 against using the government's money. So yeah, I think a 0:03:21.400 --> 0:03:23.640 lot of people felt across the line, and then depending 0:03:23.639 --> 0:03:26.520 on what the financial arrangements would have been, you know, 0:03:26.600 --> 0:03:28.920 the plantiffs in these cases that the Fourth Circus hearing 0:03:28.960 --> 0:03:31.680 would also, I think, have thought that there were moluments 0:03:31.800 --> 0:03:34.840 violations when foreign governments would have been paying Trump to 0:03:34.880 --> 0:03:39.320 stay at the Durell Resort. From everything that his acting 0:03:39.400 --> 0:03:43.400 chief of Staff McK mulvaney said, the President was surprised 0:03:43.640 --> 0:03:47.800 at the blowback, and the reversal wasn't based on legal considerations. 0:03:47.840 --> 0:03:51.160 It seemed to be based on political considerations. Yeah, I 0:03:51.240 --> 0:03:54.320 can't imagine how they could have truly have been surprised. 0:03:54.320 --> 0:03:57.760 It was just, on its face, just pretty outrageous. But 0:03:57.960 --> 0:04:00.240 you know, maybe maybe they were surprised. I think you 0:04:00.240 --> 0:04:02.000 remember this is you know, the president, who you know 0:04:02.160 --> 0:04:05.080 was was supposedly surprised that people were upset when he 0:04:05.080 --> 0:04:08.120 fired Jim comey um. You know that was the reporting 0:04:08.160 --> 0:04:10.120 that that happened at the time too, So you know, 0:04:10.640 --> 0:04:13.880 maybe and the political feelers about what's gonna what's going 0:04:13.960 --> 0:04:16.240 to seem you know, really across the line to a 0:04:16.320 --> 0:04:18.120 lot of people are not what they have been for 0:04:18.160 --> 0:04:21.400 other presidents. I'm not sure is a violation of the 0:04:21.400 --> 0:04:26.200 emoluments clauses an impeachable offense. I would think that it 0:04:26.360 --> 0:04:28.919 certainly could be. You know, the impeachable offenses are. You know, 0:04:28.920 --> 0:04:30.840 there's obviously a lot of disagreement about it, but at 0:04:30.880 --> 0:04:33.960 its core are kind of great abuses of the office. 0:04:34.200 --> 0:04:37.600 You know, certainly abusing the office for personal gain would 0:04:37.640 --> 0:04:40.160 be at the core of the kinds of things that 0:04:40.160 --> 0:04:43.040 that motivated putting the impeachment clause in the Constitution. I mean, 0:04:43.120 --> 0:04:45.360 the folks who wrote the Constitution were very worried about 0:04:45.440 --> 0:04:48.919 corruption and an influence coming from foreign governments because remember, 0:04:48.920 --> 0:04:51.880 the United States was quite small and weak when you know, 0:04:51.920 --> 0:04:54.920 we were first independent. So it's easy to find the 0:04:55.000 --> 0:04:58.039 quotes from James Madison and people like that, basically saying 0:04:58.040 --> 0:05:00.960 the president who kind of sells out the United States 0:05:01.040 --> 0:05:04.120 for the luker of a foreign country should be subject 0:05:04.160 --> 0:05:06.200 to impeachment. So this this is pretty close to the 0:05:06.240 --> 0:05:09.679 core of what impeachment is. For the Fourth Circuit hearing 0:05:09.880 --> 0:05:13.880 this case on Bank is the second major setback for 0:05:14.000 --> 0:05:17.680 Trump in emoluments cases. Last month, the Second Circuit Court 0:05:17.680 --> 0:05:20.960 of Appeals in Manhattan revived a similar lawsuit that had 0:05:20.960 --> 0:05:24.279 been dismissed by a federal judge in that decision. Did 0:05:24.320 --> 0:05:29.240 the Second Circuit basically criticize the Fourth Circuit? So there 0:05:29.279 --> 0:05:31.839 are different views between the courts. I mean, courts tried 0:05:31.880 --> 0:05:35.800 to be collegial. They can and do disagree about things. 0:05:35.800 --> 0:05:37.680 I mean, I think one of the many things that 0:05:37.760 --> 0:05:39.520 might be why the Fourth Circuit is rehearing it is 0:05:39.800 --> 0:05:43.720 the panel opinion. The three judge opinion was extremely dismissive 0:05:44.480 --> 0:05:46.400 of the lawsuit. I mean, there's the language in there 0:05:46.440 --> 0:05:49.240 that feels maybe even a little unnecessary saying that basically, 0:05:49.640 --> 0:05:52.000 you know, why do Maryland and d C even think 0:05:52.040 --> 0:05:53.920 that this is a proper case to come to court? 0:05:53.960 --> 0:05:56.479 And almost a suggestion that they're kind of wasting the 0:05:56.480 --> 0:05:59.680 court's time by bringing the case. Second Circuit has a 0:05:59.800 --> 0:06:05.440 very different view. You know, the primary regulator of presidential 0:06:05.440 --> 0:06:07.960 emoluments is supposed to be Congress. You know, the constitutions 0:06:08.040 --> 0:06:12.240 suggests that Congress could decide to permit certain emoluments or 0:06:12.400 --> 0:06:15.240 gifts from foreign countries if they wanted to to the president. 0:06:15.720 --> 0:06:18.440 But simply because Congress has a role to play here, 0:06:18.600 --> 0:06:21.039 I don't think that means as the Fourth Circuit suggested that, 0:06:21.120 --> 0:06:24.400 you know, there's no business at all for judicial review 0:06:24.480 --> 0:06:27.920 of the constitutionality. So you know, they're pretty different, pretty 0:06:27.920 --> 0:06:31.000 different approaches to the sort of propriety of judicial oversight 0:06:31.040 --> 0:06:33.719 by the two courts. What is it that the appellate 0:06:33.760 --> 0:06:36.440 courts are seeing that the lower courts are not, or 0:06:36.640 --> 0:06:39.960 is it based on whether a court is more conservative 0:06:40.040 --> 0:06:42.960 or more liberal. So the issue of standing, which is 0:06:43.000 --> 0:06:45.480 the question about sort, is this the right plain iff 0:06:45.560 --> 0:06:48.479 to bring? This claim is one that a lot of 0:06:48.480 --> 0:06:52.520 people think is fairly political in the sense of not 0:06:52.640 --> 0:06:56.799 partisan politics. But it can be influenced by judges predispositions 0:06:56.800 --> 0:06:59.640 and ideologies about an issue. And that's because the law 0:06:59.720 --> 0:07:02.719 is a mushy and you often see a lot of 0:07:02.760 --> 0:07:05.640 five four splits in the Supreme Court on standing questions. 0:07:06.040 --> 0:07:09.200 You know. So generally speaking, more liberal judges and justices 0:07:09.279 --> 0:07:11.760 tend to want the courts to be more broadly open 0:07:12.200 --> 0:07:14.680 to hear a wider range of kinds of claims, and 0:07:14.800 --> 0:07:19.120 especially claims maybe about government illegality, And generally speaking, more 0:07:19.120 --> 0:07:22.040 conservative judges and justice tend to want sort of stricter 0:07:22.200 --> 0:07:25.400 rules about who can come into court and fewer lawsuits 0:07:25.440 --> 0:07:29.760 about challenging government illegality. So I think withstanding questions about 0:07:29.760 --> 0:07:33.760 suing a sitting president. It's probably somewhat inevitable that there 0:07:33.800 --> 0:07:37.000 might be different perspectives on the issue between more liberal 0:07:37.040 --> 0:07:40.120 and more conservative justice and judges. In the three judges 0:07:40.240 --> 0:07:43.240 that heard the original case in the Fourth Circuit were 0:07:43.360 --> 0:07:46.720 Republican appointees, and by an eight to seven margin, the 0:07:46.760 --> 0:07:50.680 full on Band Court is just barely Democratic appointees in 0:07:50.680 --> 0:07:53.480 the majority. So just because of that, and because of 0:07:53.480 --> 0:07:55.840 the nature of these standing issues, and because of kind 0:07:55.840 --> 0:07:59.120 of the inherently sensitive political nature of lawsuits against the 0:07:59.120 --> 0:08:01.680 president of the United States, there could well be a 0:08:01.680 --> 0:08:04.880 shift between the the original panel and the larger court 0:08:04.960 --> 0:08:09.240 because of the democratic appointing majority. Another federal appeals court, 0:08:09.280 --> 0:08:12.880 the d C. Circuit, is also considering an emoluments lawsuit. 0:08:13.200 --> 0:08:16.640 So you have these different cases bouncing back and forth 0:08:17.280 --> 0:08:20.120 from the appellate court of the district court, and in 0:08:20.200 --> 0:08:21.960 the end, is it going to the Supreme Court that 0:08:22.040 --> 0:08:26.560 makes a final decision on what violates the emoluments clauses. 0:08:27.120 --> 0:08:28.840 I would think that this is the kind of case 0:08:28.880 --> 0:08:31.120 that the Spreme Court would feel that they would need 0:08:31.160 --> 0:08:33.320 to take. You know, the court doesn't have to take 0:08:33.480 --> 0:08:36.440 almost any case. It has a wider amount of discretion, 0:08:36.880 --> 0:08:40.880 but they generally think that cases of exceptional public interests 0:08:40.880 --> 0:08:44.640 in public importance, especially something like this that involves a 0:08:44.720 --> 0:08:48.720 novel clause of the Constitution being applied against a sitting president. 0:08:48.800 --> 0:08:51.360 You know, there's a lot of reasons why the Supreme 0:08:51.360 --> 0:08:53.920 Court would think that they should ultimately step in here 0:08:53.960 --> 0:08:57.120 and resolve these questions. But Andrew, how long would it 0:08:57.160 --> 0:08:59.440 be before the Supreme Court could hear that? Might it 0:08:59.480 --> 0:09:03.960 be before elections or not? Well, Supreme Court has a 0:09:03.960 --> 0:09:05.520 lot of control over that, so that you know, the 0:09:05.559 --> 0:09:09.920 Court can and sometimes does act exceptionally quickly when they 0:09:09.960 --> 0:09:12.319 feel the need to. So you know, we all remember 0:09:12.400 --> 0:09:16.200 the litigation coming out of the contested two thousand election 0:09:16.280 --> 0:09:19.560 between Al Gore and George W. Bush. Their Spreme Court 0:09:19.640 --> 0:09:22.600 was acting within days to schedule arguments and to hear 0:09:22.600 --> 0:09:26.360 cases and issue decisions extremely quickly. The Court has the 0:09:26.400 --> 0:09:28.520 ability to do that if it wants to, but they 0:09:28.559 --> 0:09:30.440 don't always want to. Um, you know, there might be 0:09:30.520 --> 0:09:33.680 reasons why they would prefer to just have a case 0:09:33.720 --> 0:09:36.199 on an ordinary schedule and let you know, months go 0:09:36.280 --> 0:09:39.199 in between the filing of briefs and and all these things. 0:09:39.200 --> 0:09:42.199 So you know, we shouldn't think that the Court doesn't 0:09:42.240 --> 0:09:44.480 have the ability to do this fast. They do have 0:09:44.520 --> 0:09:46.880 the ability, and so they I think we'll be signaling 0:09:47.360 --> 0:09:51.040 something pretty important about their preferences, you know, when we 0:09:51.080 --> 0:09:54.040 see once they're asked to step in, whether they do so, 0:09:54.240 --> 0:09:56.720 and what kind of schedule they set for themselves. Thanks Andrew. 0:09:57.040 --> 0:10:03.080 That's Andrew can To, professor at Fordham Law School. Thanks 0:10:03.080 --> 0:10:06.360 for listening to the Bloomberg Law Podcast. You can subscribe 0:10:06.400 --> 0:10:09.640 and listen to the show on Apple Podcasts, SoundCloud, and 0:10:09.679 --> 0:10:13.439 on Bloomberg dot com slash podcast. I am June Brosso. 0:10:13.920 --> 0:10:15.240 This is Bloomberg