WEBVTT - Legal Experts Sue Trump Over Ethics Concerns  (Audio)

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<v Speaker 1>Is President Donald Trump already violating the Constitution. That's the

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<v Speaker 1>contention of a new lawsuit filed by a government watchdog

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<v Speaker 1>group today. It's represented by some of the biggest names

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<v Speaker 1>in constitutional law. The claim is that Trump's continuing stake

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<v Speaker 1>in his business puts him in violation of the Constitution's

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<v Speaker 1>emoluments clause, which bars government officials from accepting things of

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<v Speaker 1>value from foreign governments. The group, known as Citizens for

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<v Speaker 1>Responsibility and Ethics in Washington, points the money paid to

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<v Speaker 1>Trump's hotels and golf courses, payments on leases held at

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<v Speaker 1>Trump Tower, and the deals that confer rights overseas Trump's

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<v Speaker 1>show The Apprentice. The group is asking a federal judge

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<v Speaker 1>in Manhattan to bar Trump from accepting payments from foreign

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<v Speaker 1>governments and government owned entities. Moments ago, Trump told reporters

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<v Speaker 1>the lawsuit was quote totally without merit. He has taken

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<v Speaker 1>the position that under the law, presidents cannot have a

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<v Speaker 1>conflict of interest. Does the lawsuit lawsuits stand a chance?

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<v Speaker 1>And what would the implications be if it does. Our

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<v Speaker 1>guests to talk about the new lawsuits new lawsuit are

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<v Speaker 1>Caroline Frederickson, president of the American Constitution Society, which has

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<v Speaker 1>been rather critical of the new president and Jonathan Adler,

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<v Speaker 1>a law professor at Case Western University, Welcome to you both. Caroline.

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<v Speaker 1>Let's start with you make make the case for this

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<v Speaker 1>this lawsuit. What's the argument that says that Trump is

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<v Speaker 1>violating the molument? I mean, first of all, UH, he's

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<v Speaker 1>conflating several things when he says the president uh has

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<v Speaker 1>no no conflict of interest. UM. You know, there are

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<v Speaker 1>many statutes uh, and lots of custom about how presidents

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<v Speaker 1>are supposed to behave to make the American people believe

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<v Speaker 1>that they have our nation's interests first, not their own pocketbook. UM.

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<v Speaker 1>But this is the constitution, um. And we we're talking

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<v Speaker 1>about is the Emoluments Clause UM, which was adopted by

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<v Speaker 1>the Framers because of great concern about foreign governments being

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<v Speaker 1>able to influence those to run our country and by definition,

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<v Speaker 1>to influence the president. UM. It's it's very squarely on point.

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<v Speaker 1>It says that no person holding any office of profit

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<v Speaker 1>or trust shall, without the consent of Congress, except any president, emolument, office,

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<v Speaker 1>or title of any kind whatever, from any king, prince,

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<v Speaker 1>or foreign state. So you know, I think, um, you know,

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<v Speaker 1>it's clear that the president is covered by the emoluments clause. UM,

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<v Speaker 1>And I think, um, the advocates who brought this suit

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<v Speaker 1>have a very very strong argument, UM that there is

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<v Speaker 1>a potential, certainly for a violation by the payments that

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<v Speaker 1>are made to the company. Jonathan Trump's attorneys at Morgan,

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<v Speaker 1>Lewis and Bucks has said, Jonathan, are you still there?

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<v Speaker 1>I think we've lost him, just for just for a

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<v Speaker 1>few moments. So Caroline Trump's attorneys have said that the

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<v Speaker 1>monuments clause doesn't apply to arms length transactions in which

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<v Speaker 1>the president's business is engaged, such as paying a hotel

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<v Speaker 1>room bill to a corporate entity. What your answer to that? Well,

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<v Speaker 1>you know, I honestly, how arms length is it to

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<v Speaker 1>have your children running your business? Um? And that's that's

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<v Speaker 1>not a very long arm for sure. UM. But in

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<v Speaker 1>any case, I think the issue is really about, um,

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<v Speaker 1>what impact it has on the president and how he

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<v Speaker 1>makes decisions. Uh. The the influence is what they are

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<v Speaker 1>going to be cultivating. Uh. The knowledge of their spending

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<v Speaker 1>will be easily conveyed to the President's clear that there

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<v Speaker 1>could be an influence. So you know, I don't know

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<v Speaker 1>what kind of arms length that is certainly not in

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<v Speaker 1>my mind. Well isn't though, If all a foreign government

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<v Speaker 1>is doing, or you know, foreign official is doing is

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<v Speaker 1>coming to, say the Trump International Hotel and paying you know,

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<v Speaker 1>whatever rate anybody else would pay there, I think that's

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<v Speaker 1>what they're talking about with an arms length transaction. Uh.

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<v Speaker 1>Why should that be something that potentially puts the president

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<v Speaker 1>in violation of the Constitution. Well, I'd say two things.

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<v Speaker 1>One is, um, we've heard a very um explicit um

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<v Speaker 1>decisions by foreign governments to direct their spending to the

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<v Speaker 1>Trump properties um and making it publicly known. Um. That's

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<v Speaker 1>very different from you know, I'm going to go have

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<v Speaker 1>lunch there once a month um. Uh. And so I

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<v Speaker 1>think that's something that has to be looked into. The

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<v Speaker 1>other pieces that what's very important about lawsuits is um

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<v Speaker 1>that they allow us to have a better understanding of

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<v Speaker 1>the facts. And through the discovery process. One of the

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<v Speaker 1>things that I know that the the those who are

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<v Speaker 1>involved with this lawsuit hope to get ahold of ore

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<v Speaker 1>the president's tax returns um. And in those tax returns,

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<v Speaker 1>we'd have a much better sense of how much money

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<v Speaker 1>he's really getting from these foreign governments. And I think

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<v Speaker 1>that's an important piece of this. I mean, we we

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<v Speaker 1>just don't know. I mean, right now, you know there

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<v Speaker 1>there's a possibility that there that that he's not getting

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<v Speaker 1>any payments from from foreign governments, but there is definitely

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<v Speaker 1>a possibility that he is. Jonathan Adler is back with us.

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<v Speaker 1>Jonathan is standing, which is the plaintiffs showing that they

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<v Speaker 1>would suffer direct injury a problem in this lawsuit. Well,

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<v Speaker 1>I think standing is a huge problem in this lawsuit.

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<v Speaker 1>As a general matter, UH, saying that you are really

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<v Speaker 1>concerned that the federal government or or an executive officer

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<v Speaker 1>is violating the law is not enough to invoke the

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<v Speaker 1>jurisdiction of federal courts. UH. And in this case, UM,

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<v Speaker 1>I don't believe that that the plaintiffs have been able

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<v Speaker 1>to identify anything that causes them UH legally cognizable injury,

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<v Speaker 1>let alone satisfies the other requirements of standing, that that

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<v Speaker 1>injury be traceable to the alleged legal violation, and that

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<v Speaker 1>or that a UH favorable judgment would address that injury.

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<v Speaker 1>I think I think it's it's in the very aggressive

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<v Speaker 1>argument upstanding that they're making, and I would not expect

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<v Speaker 1>it to google claw. Carolyn, What's what's your response to

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<v Speaker 1>that I find this is one of one of these

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<v Speaker 1>issues standing that UH. You know, during the Obama years,

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<v Speaker 1>it was the the Republican opponents of Obama who are

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<v Speaker 1>arguing for robust standing, and now the shoe seems to

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<v Speaker 1>be on the other foot. Uh. Well, you know, it

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<v Speaker 1>is an aggressive argument. I'd have to agree, but I

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<v Speaker 1>think it has UM some merit. There. There's a nine

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<v Speaker 1>two Supreme Court decision in which a group that UH

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<v Speaker 1>was arguing for fair housing UM was able to get

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<v Speaker 1>standing because it UH it showed that its use of

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<v Speaker 1>testers to find out employment discrip whether there was a

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<v Speaker 1>housing discrimination UH was cognizable UM. And so the argument

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<v Speaker 1>here is that is that crew, the Citizens for Responsive

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<v Speaker 1>Responsibility and Ethics in Washington, which is the plaintiff UM,

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<v Speaker 1>is diverting its resources to UMH the work that UH

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<v Speaker 1>it has to do on government transparency UH and UM.

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<v Speaker 1>So you know, it's certainly there's a parallel UM. I.

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<v Speaker 1>I you know, I think there's it's it's one of

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<v Speaker 1>the issues that is going to be most litigated in

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<v Speaker 1>this case, no doubt. UM. But I think if they've

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<v Speaker 1>got a claim, a colorable claim, and it's we'll see

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<v Speaker 1>how the courts take it. We're talking about the new

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<v Speaker 1>lawsuits that accuses Donald Trump of violating the Constitution through

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<v Speaker 1>his business dealings with foreign governments. Our guests are Caroline

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<v Speaker 1>Frederickson of the American Constitution Society and Jonathan Adler, professor

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<v Speaker 1>at Case Western. Uh. Jonathan, Uh, I think this might

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<v Speaker 1>have been when you were temporarily off, but Caroline was

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<v Speaker 1>was making the case for this lawsuit. And basically the

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<v Speaker 1>argument is the emoluments Clause is written very broadly, and

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<v Speaker 1>these are situations where foreign governments might be able to

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<v Speaker 1>curry favor with the new president by staying at his

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<v Speaker 1>hotel or perhaps giving him a sweetheart deal on on

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<v Speaker 1>some sort of thing. If the plaintiffs could get over

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<v Speaker 1>the standing problem. Is there a subtive argument that the

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<v Speaker 1>president is in violation of the Constitution. There is an argument,

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<v Speaker 1>and I do think there is serious academic debate over

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<v Speaker 1>whether the president is properly covered by the clause, and

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<v Speaker 1>and there is certainly academic debate about how we identify

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<v Speaker 1>the difference between money obtained in a on length transaction

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<v Speaker 1>and what is actually an emolument or an improper inducement.

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<v Speaker 1>But the larger question is really whether or not this

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<v Speaker 1>is the sort of thing that should be handled in

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<v Speaker 1>the federal courts. The emoluments cause itself gives Congress the

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<v Speaker 1>authority to decide what the line is between the permissible

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<v Speaker 1>and impermissible emolument. Uh. The impeachment clause specifically identifies bribery

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<v Speaker 1>has a potential grounds for impeachment. So I think the

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<v Speaker 1>larger question is whether or not this is the sort

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<v Speaker 1>of thing that the political process to deal with or

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<v Speaker 1>the sort of thing that should be left in the

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<v Speaker 1>hands of, you know, a single federal judge in a

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<v Speaker 1>single court case. Caroline. This disorganization all so filed a

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<v Speaker 1>separate complaint on Friday with the General Services Administration over

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<v Speaker 1>provision in the Trump organization's lease of the old Post

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<v Speaker 1>Office building for the Trump Hotel. That provision prohibits any

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<v Speaker 1>elected official of the United States government from being part

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<v Speaker 1>of the lease or deriving any benefit from it. Does

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<v Speaker 1>that sound like a clearer claim? Well, it also sounds

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<v Speaker 1>like a clear claim. Um. I mean, I guess I

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<v Speaker 1>think the Constitution and just to respond to Professor Adler,

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<v Speaker 1>you know, specifically frame to ensure that when the political

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<v Speaker 1>branches are pailing, that the judiciary can can have a

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<v Speaker 1>role so that um, and this Congress is not necessarily

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<v Speaker 1>one that is going to see fit uh. It's certainly

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<v Speaker 1>not now to explore a violation of the Monuments clause. UM.

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<v Speaker 1>But I do think that the the issue is very

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<v Speaker 1>clear in the lease UM that it forbids uh uh

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<v Speaker 1>an official of the government to umu to the same

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<v Speaker 1>to have that kind of relationship with the g s

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<v Speaker 1>A UM. So it'll be interesting to see how that

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<v Speaker 1>case proceeds as well. UM. But it certainly seems rather straightforward. Jonathan.

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<v Speaker 1>Let's let's play this out just a little bit. UM.

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<v Speaker 1>If a court were to find that the president is

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<v Speaker 1>in violation of the Monuments clause, Uh, what would happen there?

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<v Speaker 1>So you have a court that orders him to what

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<v Speaker 1>divest himself of these assets? Um? Do we think that

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<v Speaker 1>that this president is actually gonna gonna agree to do that?

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<v Speaker 1>Is this? You know? So we're concerned that this is

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<v Speaker 1>getting getting us into a real constitutionally messy area. Well,

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<v Speaker 1>that that really highlights the problem and the idea that

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<v Speaker 1>a federal court would be entrusted with overseeing the financial

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<v Speaker 1>relationships of the president and deciding what is or is

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<v Speaker 1>not an acceptable relationship when the Constitution expressively give Congress

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<v Speaker 1>that authority would create a separation of powers nightmare. And

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<v Speaker 1>it's well established in the Supreme Court jurisprudence that in

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<v Speaker 1>these sorts of intra branch UH controversies and conflicts, particularly

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<v Speaker 1>those that are designed to prevent protect can things like corruption,

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<v Speaker 1>that it's not clear the courts have a role. So

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<v Speaker 1>in cases like Nixon versus United States, Extreme Court said

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<v Speaker 1>the courts have no ability to even ask whether UH

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<v Speaker 1>Congress followed proper procedures when impeaching a judge, that it's

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<v Speaker 1>not a question of what Congress got a close and

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<v Speaker 1>off its courts have no jurisdiction to address the question,

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<v Speaker 1>and that when we play out what would be involved

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<v Speaker 1>if the crew were successful in the suit, we see

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<v Speaker 1>why this is really not the sort of thing that's

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<v Speaker 1>best handles in courts. And I say that as someone

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<v Speaker 1>who agrees that there are serious questions about the president's

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<v Speaker 1>potential conflicts of interest and who would like to see

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<v Speaker 1>a group more actions to to assure all of us

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<v Speaker 1>that proper financial separation has been made, I just really

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<v Speaker 1>don't believe that that litigation is the way we accomplish that, Caroline,

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<v Speaker 1>what's your response to that? Well, I mean, I think

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<v Speaker 1>the constitution um makes it clear, Um, Congress can certainly

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<v Speaker 1>consent to allow uh the president to get gifts from

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<v Speaker 1>foreign states. Um. It does. The clause does not, however,

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<v Speaker 1>say that Congress will adjudicate whether the emoluments Clause has

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<v Speaker 1>been violated or not. So I think it stands apart

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<v Speaker 1>from impeachment, which has that particular process laid out. Um.

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<v Speaker 1>And when we are in a situation where the government, um,

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<v Speaker 1>you know is in essence a one party state, uh,

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<v Speaker 1>you know, we are we left to say that any

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<v Speaker 1>ethics violation, any constitutionally uh sufficient ethical violations that the

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<v Speaker 1>president is going to engage in, we just have to

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<v Speaker 1>look the other way because nobody's going to be able

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<v Speaker 1>to to do anything about it. I can't imagine that

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<v Speaker 1>that's what our framers, um, we're thinking when they constructed

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<v Speaker 1>the emoluments clause, that there would be no uh, no

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<v Speaker 1>response possible. So I actually think this is uh, you know,

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<v Speaker 1>it's something that uh uh it's it's the role of

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<v Speaker 1>the judiciary specifically to enforce these types of provisions in

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<v Speaker 1>the Constitution. Jonathan, would uh the standing argument be a

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<v Speaker 1>stronger if, as I guess, the a c l U

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<v Speaker 1>is considering filing a suit on behalf of a competing hotel.

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<v Speaker 1>For example, somebody who says I got less business because uh,

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<v Speaker 1>people who might have stayed at my hotel instead go

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<v Speaker 1>to stay at the Trump hotel to curry favor with

0:13:33.800 --> 0:13:36.920
<v Speaker 1>the new president. Would that be an argument that would

0:13:36.920 --> 0:13:41.800
<v Speaker 1>get him over the standing hump. I still think that

0:13:41.800 --> 0:13:44.240
<v Speaker 1>that argument might have some problems, but I do think

0:13:44.240 --> 0:13:47.920
<v Speaker 1>it would be a significantly stronger argument for standing than

0:13:48.000 --> 0:13:51.280
<v Speaker 1>we see in this case. Of courts have recognized, at

0:13:51.320 --> 0:13:56.480
<v Speaker 1>least in certain circumstances, that competitors can have standing to

0:13:56.679 --> 0:14:02.240
<v Speaker 1>challenge governmental actions which unfairly benefit of competing terms. Caroline.

0:14:02.360 --> 0:14:06.160
<v Speaker 1>Is a problem here that there is very little law

0:14:06.520 --> 0:14:10.880
<v Speaker 1>as far as litigation on the emoluments clause. Hey, how well,

0:14:10.960 --> 0:14:14.600
<v Speaker 1>that's certainly to put it mildly. Um. Um, I think,

0:14:14.640 --> 0:14:16.760
<v Speaker 1>which is why the law professors love it. Um. In

0:14:16.800 --> 0:14:21.160
<v Speaker 1>many ways, this is such a great area for discussion. Um.

0:14:21.200 --> 0:14:24.120
<v Speaker 1>It's intriguing, it's interesting, um. But you know, really, what

0:14:24.200 --> 0:14:29.920
<v Speaker 1>it reflects is that the practice of our presidents till

0:14:29.960 --> 0:14:35.200
<v Speaker 1>now has been consistent that the expectation is so broadly

0:14:35.280 --> 0:14:38.960
<v Speaker 1>shared that the president must make it clear to the

0:14:39.000 --> 0:14:43.480
<v Speaker 1>American public that he holds our nation's interests ahead of

0:14:43.520 --> 0:14:47.360
<v Speaker 1>his own. It's the most portant, important part of his job,

0:14:47.640 --> 0:14:50.200
<v Speaker 1>that it is the duty that he holds um. And

0:14:50.240 --> 0:14:53.200
<v Speaker 1>I think we're seeing that shaken. We've never we've never

0:14:53.240 --> 0:14:56.400
<v Speaker 1>had to litigate this before, because presidents have made clear

0:14:56.520 --> 0:15:01.040
<v Speaker 1>that they are not interested in uh in in misleading

0:15:01.080 --> 0:15:04.960
<v Speaker 1>the American public. Uh and that we have standards for

0:15:05.040 --> 0:15:08.800
<v Speaker 1>ethical behavior that they have attempted to follow. I mean,

0:15:08.800 --> 0:15:12.080
<v Speaker 1>not always perfectly, perhaps, but um. I think we had

0:15:12.120 --> 0:15:16.120
<v Speaker 1>some very strong norms about what was acceptable, and President

0:15:16.120 --> 0:15:19.880
<v Speaker 1>Trump has violated every one of them. Jonathan, There this

0:15:19.920 --> 0:15:22.280
<v Speaker 1>issue did come up in a slightly different, well maybe

0:15:22.320 --> 0:15:25.120
<v Speaker 1>a very very different context at the beginning of the

0:15:25.120 --> 0:15:28.040
<v Speaker 1>Obama administration when he was going to be awarded the

0:15:28.080 --> 0:15:31.760
<v Speaker 1>Nobel Peace Prize and there was a Justice Department assessment

0:15:32.520 --> 0:15:35.080
<v Speaker 1>that that determined he would not be in violation of

0:15:35.120 --> 0:15:38.840
<v Speaker 1>the Monuments clause by accepting the Nobel Peace Prize. Does

0:15:38.880 --> 0:15:41.680
<v Speaker 1>that affect the analysis here at all in your mind?

0:15:43.040 --> 0:15:44.960
<v Speaker 1>I don't know that particular one does. I mean, there

0:15:44.960 --> 0:15:48.920
<v Speaker 1>are there are examples going back through history where presidents

0:15:48.960 --> 0:15:51.520
<v Speaker 1>have sought legal opinions or whether or not they could

0:15:51.560 --> 0:15:54.800
<v Speaker 1>accept certain sorts of things, and a handful of cases

0:15:54.840 --> 0:16:01.880
<v Speaker 1>involving um questions about presidents uh own financial affairs, not

0:16:01.920 --> 0:16:04.520
<v Speaker 1>in not cases like Wittige Eaten Court, but but instances

0:16:04.560 --> 0:16:06.920
<v Speaker 1>in which was this was examined. But but Karen is

0:16:06.960 --> 0:16:09.520
<v Speaker 1>right that that we don't have a lot that's on point.

0:16:10.120 --> 0:16:13.240
<v Speaker 1>Not even the various Office of Legal Council memos that

0:16:13.320 --> 0:16:18.400
<v Speaker 1>address these questions, um are are rather thin on the

0:16:18.520 --> 0:16:22.080
<v Speaker 1>things that are directly relevant to this lawsuit. So we

0:16:22.120 --> 0:16:24.920
<v Speaker 1>don't have nearly as much established precedent in this area

0:16:24.960 --> 0:16:30.960
<v Speaker 1>as as we would like to have to bring some clarity, Caroline,

0:16:31.120 --> 0:16:34.880
<v Speaker 1>as far as the litigation itself would go, you have

0:16:35.000 --> 0:16:37.720
<v Speaker 1>to even no matter which way a federal judge ruled,

0:16:37.800 --> 0:16:40.360
<v Speaker 1>you have to believe that that's going to be appealed

0:16:40.760 --> 0:16:43.400
<v Speaker 1>and appealed as high as it can go. So we

0:16:43.560 --> 0:16:48.440
<v Speaker 1>take might take years for this to be decided potentially, um.

0:16:48.480 --> 0:16:50.800
<v Speaker 1>You know, hopefully I think the courts can recognize that

0:16:50.800 --> 0:16:56.200
<v Speaker 1>that an issue of this importance requires expedited, expedited process.

0:16:56.280 --> 0:17:00.520
<v Speaker 1>But you know, legal work is never speedy. Um uh

0:17:00.560 --> 0:17:03.600
<v Speaker 1>So I'm expecting it will take some time. But as

0:17:03.640 --> 0:17:05.679
<v Speaker 1>that goes on, uh, you know, if they make it

0:17:05.680 --> 0:17:08.000
<v Speaker 1>past the first hurdle and they get into discovery, they

0:17:08.040 --> 0:17:12.280
<v Speaker 1>will potentially be further information coming out that will strengthen

0:17:12.320 --> 0:17:15.479
<v Speaker 1>the case UM, and strengthen the case politically perhaps as

0:17:15.480 --> 0:17:21.240
<v Speaker 1>well as legally UM. And the tax returns, yes, indeed,

0:17:21.280 --> 0:17:24.280
<v Speaker 1>other types of information that comes out about payments that

0:17:24.400 --> 0:17:27.880
<v Speaker 1>may be being made UM. Because you know, I think

0:17:28.119 --> 0:17:32.000
<v Speaker 1>you know what ultimately, what everybody would want is an

0:17:32.240 --> 0:17:37.479
<v Speaker 1>administration a president who follows the rules as they've been

0:17:37.520 --> 0:17:39.840
<v Speaker 1>known till now. And if he if he decided to

0:17:39.880 --> 0:17:44.879
<v Speaker 1>actually divest from his company, if he actually set up

0:17:44.880 --> 0:17:48.320
<v Speaker 1>a process of screenings that was appropriate, if he actually

0:17:49.280 --> 0:17:53.119
<v Speaker 1>uh uh made it clear that his tax were for

0:17:53.640 --> 0:17:56.120
<v Speaker 1>tax tax returns would be available for people. I think

0:17:56.119 --> 0:17:58.440
<v Speaker 1>you know all this, you know, people would would would

0:17:58.480 --> 0:18:01.760
<v Speaker 1>be much more confident in the lawsuits would go away.

0:18:01.800 --> 0:18:06.160
<v Speaker 1>But until that happens, I think nobody can be confident that, UM,

0:18:06.200 --> 0:18:09.080
<v Speaker 1>we don't have a president who is in withdrawal of

0:18:09.200 --> 0:18:14.080
<v Speaker 1>foreign governments taking payments for for services and uh and

0:18:14.119 --> 0:18:16.680
<v Speaker 1>I think UM As a result, I think the courts

0:18:16.680 --> 0:18:19.600
<v Speaker 1>are going to certainly try and and and move as

0:18:19.640 --> 0:18:23.600
<v Speaker 1>an expedited a fashion as they can. Um that not

0:18:23.600 --> 0:18:26.320
<v Speaker 1>not necessarily speedy, though, as I said, because courts don't

0:18:26.560 --> 0:18:29.600
<v Speaker 1>work that way. We're talking about the new lawsuit file

0:18:29.680 --> 0:18:33.840
<v Speaker 1>today involving the Emolument's clause, accusing Donald Trump of violating

0:18:33.880 --> 0:18:37.760
<v Speaker 1>the Constitution by his business dealings with foreign governments.