Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. President Trump's decision
Speaker 1: to host the G seven summit at his deral resort
Speaker 1: sparked an immediate backlash and concerns that Trump continues to dismiss.
Speaker 1: I don't think you people in this Phonia monuments laws.
Speaker 1: And by the way, I would say that it's cost
Speaker 1: me anywhere from two to five billion dollars to be president,
Speaker 1: and that's okay. Between what I lose and what I
Speaker 1: could have made, I would have made a fortune. The
Speaker 1: President reversed himself on that decision, and a federal appeals
Speaker 1: court is now in a position to reverse itself on
Speaker 1: the question of whether Trump used his office to enrich
Speaker 1: himself in violation of the Constitution's emoluments clauses. The US
Speaker 1: Appeals Court for the Fourth Circuit in Virginia has voted
Speaker 1: to re here an emoluments case brought by the Attorneys
Speaker 1: General of d C in Maryland on bank joining me
Speaker 1: is Andrew Kent, a professor at Fordham Law School. So
Speaker 1: the case will be reheard on December twelve with the
Speaker 1: full Fourth Circuit fifteen judges or more and on bank hearing,
Speaker 1: which is rare in any circuit. How significant is this
Speaker 1: I think it is significant. It usually signals that there's uh,
Speaker 1: you know, a pretty decent number of judges who are
Speaker 1: dissatisfied with what the three judge panel did. So it
Speaker 1: could be bad news for President Trump. Possibly. We've heard
Speaker 1: the term emoluments a lot since Trump became president. Have
Speaker 1: the legal issues around the emoluments clauses been interpreted by
Speaker 1: the courts very little? There's a little bit of activity.
Speaker 1: And these are the first times ever that courts have
Speaker 1: interpreted the monuments clauses of the Constitution. There's been, you know,
Speaker 1: some differences of opinion about it, and certainly the plaintiffs
Speaker 1: in these cases and President Trump and his lawyers have
Speaker 1: extremely front views about what the amoluments clauses prohibit. Can
Speaker 1: you generally say what those views are? Sure? The President's
Speaker 1: view is is that, you know, among other things, sort
Speaker 1: of ordinary commercial transactions, you might say, arms length transactions
Speaker 1: such as Kuwaiti and Saudi government officials staying at the
Speaker 1: Trump hotel, which is one of the allegations, and the
Speaker 1: Planets complained. They would say that those are not the
Speaker 1: type of thing that are covered by the clause. The
Speaker 1: clause would ban giving you a cash payment to the
Speaker 1: president or something like that, But when the president is
Speaker 1: offering goods to the market generally and a foreign government
Speaker 1: happens to to purchase them, they would say that's not
Speaker 1: an a molument. And the Planets have a much broader view.
Speaker 1: They essentially think that any kinds of payments, including profits
Speaker 1: from ordinary commercial transactions from foreign governments, you know, could
Speaker 1: violate the foreign amoluments clause. So with President Trump maintaining
Speaker 1: his ownership in companies that do business with foreign diplomats,
Speaker 1: it's sort of hard to see the line. Did Trump's
Speaker 1: choice of his direct raw resort cross the line? You know?
Speaker 1: I think even he may have recognized that across the line,
Speaker 1: since he walked it back pretty quickly. Government ethicists were
Speaker 1: outraged about that pretty uniformly. Steering a contract to yourself
Speaker 1: is pretty much at the core of the criminal law
Speaker 1: against using the government's money. So yeah, I think a
Speaker 1: lot of people felt across the line, and then depending
Speaker 1: on what the financial arrangements would have been, you know,
Speaker 1: the plantiffs in these cases that the Fourth Circus hearing
Speaker 1: would also, I think, have thought that there were moluments
Speaker 1: violations when foreign governments would have been paying Trump to
Speaker 1: stay at the Durell Resort. From everything that his acting
Speaker 1: chief of Staff McK mulvaney said, the President was surprised
Speaker 1: at the blowback, and the reversal wasn't based on legal considerations.
Speaker 1: It seemed to be based on political considerations. Yeah, I
Speaker 1: can't imagine how they could have truly have been surprised.
Speaker 1: It was just, on its face, just pretty outrageous. But
Speaker 1: you know, maybe maybe they were surprised. I think you
Speaker 1: remember this is you know, the president, who you know
Speaker 1: was was supposedly surprised that people were upset when he
Speaker 1: fired Jim comey um. You know that was the reporting
Speaker 1: that that happened at the time too, So you know,
Speaker 1: maybe and the political feelers about what's gonna what's going
Speaker 1: to seem you know, really across the line to a
Speaker 1: lot of people are not what they have been for
Speaker 1: other presidents. I'm not sure is a violation of the
Speaker 1: emoluments clauses an impeachable offense. I would think that it
Speaker 1: certainly could be. You know, the impeachable offenses are. You know,
Speaker 1: there's obviously a lot of disagreement about it, but at
Speaker 1: its core are kind of great abuses of the office.
Speaker 1: You know, certainly abusing the office for personal gain would
Speaker 1: be at the core of the kinds of things that
Speaker 1: that motivated putting the impeachment clause in the Constitution. I mean,
Speaker 1: the folks who wrote the Constitution were very worried about
Speaker 1: corruption and an influence coming from foreign governments because remember,
Speaker 1: the United States was quite small and weak when you know,
Speaker 1: we were first independent. So it's easy to find the
Speaker 1: quotes from James Madison and people like that, basically saying
Speaker 1: the president who kind of sells out the United States
Speaker 1: for the luker of a foreign country should be subject
Speaker 1: to impeachment. So this this is pretty close to the
Speaker 1: core of what impeachment is. For the Fourth Circuit hearing
Speaker 1: this case on Bank is the second major setback for
Speaker 1: Trump in emoluments cases. Last month, the Second Circuit Court
Speaker 1: of Appeals in Manhattan revived a similar lawsuit that had
Speaker 1: been dismissed by a federal judge in that decision. Did
Speaker 1: the Second Circuit basically criticize the Fourth Circuit? So there
Speaker 1: are different views between the courts. I mean, courts tried
Speaker 1: to be collegial. They can and do disagree about things.
Speaker 1: I mean, I think one of the many things that
Speaker 1: might be why the Fourth Circuit is rehearing it is
Speaker 1: the panel opinion. The three judge opinion was extremely dismissive
Speaker 1: of the lawsuit. I mean, there's the language in there
Speaker 1: that feels maybe even a little unnecessary saying that basically,
Speaker 1: you know, why do Maryland and d C even think
Speaker 1: that this is a proper case to come to court?
Speaker 1: And almost a suggestion that they're kind of wasting the
Speaker 1: court's time by bringing the case. Second Circuit has a
Speaker 1: very different view. You know, the primary regulator of presidential
Speaker 1: emoluments is supposed to be Congress. You know, the constitutions
Speaker 1: suggests that Congress could decide to permit certain emoluments or
Speaker 1: gifts from foreign countries if they wanted to to the president.
Speaker 1: But simply because Congress has a role to play here,
Speaker 1: I don't think that means as the Fourth Circuit suggested that,
Speaker 1: you know, there's no business at all for judicial review
Speaker 1: of the constitutionality. So you know, they're pretty different, pretty
Speaker 1: different approaches to the sort of propriety of judicial oversight
Speaker 1: by the two courts. What is it that the appellate
Speaker 1: courts are seeing that the lower courts are not, or
Speaker 1: is it based on whether a court is more conservative
Speaker 1: or more liberal. So the issue of standing, which is
Speaker 1: the question about sort, is this the right plain iff
Speaker 1: to bring? This claim is one that a lot of
Speaker 1: people think is fairly political in the sense of not
Speaker 1: partisan politics. But it can be influenced by judges predispositions
Speaker 1: and ideologies about an issue. And that's because the law
Speaker 1: is a mushy and you often see a lot of
Speaker 1: five four splits in the Supreme Court on standing questions.
Speaker 1: You know. So generally speaking, more liberal judges and justices
Speaker 1: tend to want the courts to be more broadly open
Speaker 1: to hear a wider range of kinds of claims, and
Speaker 1: especially claims maybe about government illegality, And generally speaking, more
Speaker 1: conservative judges and justice tend to want sort of stricter
Speaker 1: rules about who can come into court and fewer lawsuits
Speaker 1: about challenging government illegality. So I think withstanding questions about
Speaker 1: suing a sitting president. It's probably somewhat inevitable that there
Speaker 1: might be different perspectives on the issue between more liberal
Speaker 1: and more conservative justice and judges. In the three judges
Speaker 1: that heard the original case in the Fourth Circuit were
Speaker 1: Republican appointees, and by an eight to seven margin, the
Speaker 1: full on Band Court is just barely Democratic appointees in
Speaker 1: the majority. So just because of that, and because of
Speaker 1: the nature of these standing issues, and because of kind
Speaker 1: of the inherently sensitive political nature of lawsuits against the
Speaker 1: president of the United States, there could well be a
Speaker 1: shift between the the original panel and the larger court
Speaker 1: because of the democratic appointing majority. Another federal appeals court,
Speaker 1: the d C. Circuit, is also considering an emoluments lawsuit.
Speaker 1: So you have these different cases bouncing back and forth
Speaker 1: from the appellate court of the district court, and in
Speaker 1: the end, is it going to the Supreme Court that
Speaker 1: makes a final decision on what violates the emoluments clauses.
Speaker 1: I would think that this is the kind of case
Speaker 1: that the Spreme Court would feel that they would need
Speaker 1: to take. You know, the court doesn't have to take
Speaker 1: almost any case. It has a wider amount of discretion,
Speaker 1: but they generally think that cases of exceptional public interests
Speaker 1: in public importance, especially something like this that involves a
Speaker 1: novel clause of the Constitution being applied against a sitting president.
Speaker 1: You know, there's a lot of reasons why the Supreme
Speaker 1: Court would think that they should ultimately step in here
Speaker 1: and resolve these questions. But Andrew, how long would it
Speaker 1: be before the Supreme Court could hear that? Might it
Speaker 1: be before elections or not? Well, Supreme Court has a
Speaker 1: lot of control over that, so that you know, the
Speaker 1: Court can and sometimes does act exceptionally quickly when they
Speaker 1: feel the need to. So you know, we all remember
Speaker 1: the litigation coming out of the contested two thousand election
Speaker 1: between Al Gore and George W. Bush. Their Spreme Court
Speaker 1: was acting within days to schedule arguments and to hear
Speaker 1: cases and issue decisions extremely quickly. The Court has the
Speaker 1: ability to do that if it wants to, but they
Speaker 1: don't always want to. Um, you know, there might be
Speaker 1: reasons why they would prefer to just have a case
Speaker 1: on an ordinary schedule and let you know, months go
Speaker 1: in between the filing of briefs and and all these things.
Speaker 1: So you know, we shouldn't think that the Court doesn't
Speaker 1: have the ability to do this fast. They do have
Speaker 1: the ability, and so they I think we'll be signaling
Speaker 1: something pretty important about their preferences, you know, when we
Speaker 1: see once they're asked to step in, whether they do so,
Speaker 1: and what kind of schedule they set for themselves. Thanks Andrew.
Speaker 1: That's Andrew can To, professor at Fordham Law School. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
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Speaker 1: on Bloomberg dot com slash podcast. I am June Brosso.
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