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