15 Judges Will Rehear Emoluments Case

And by the way, I would say that it's cost me anywhere from two to five billion dollars to be president, and that's okay. Between what I lose and what I could have made, I would have made a fortune. The President reversed himself on that decision, and a federal appeals court is now in a position to reverse itself on the question of whether Trump used his office to enrich

himself in violation of the Constitution's emoluments clauses. The US Appeals Court for the Fourth Circuit in Virginia has voted to re here an emoluments case brought by the Attorneys General of d C in Maryland on bank joining me is Andrew Kent, a professor at Fordham Law School. So the case will be reheard on December twelve with the full Fourth Circuit fifteen judges or more and on bank hearing, which is rare in any circuit. How significant is this

I think it is significant. It usually signals that there's uh, you know, a pretty decent number of judges who are dissatisfied with what the three judge panel did. So it could be bad news for President Trump. Possibly. We've heard the term emoluments a lot since Trump became president. Have the legal issues around the emoluments clauses been interpreted by the courts very little? There's a little bit of activity. And these are the first times ever that courts have

interpreted the monuments clauses of the Constitution. There's been, you know, some differences of opinion about it, and certainly the plaintiffs in these cases and President Trump and his lawyers have extremely front views about what the amoluments clauses prohibit. Can

you generally say what those views are? Sure? The President's view is is that, you know, among other things, sort of ordinary commercial transactions, you might say, arms length transactions such as Kuwaiti and Saudi government officials staying at the Trump hotel, which is one of the allegations, and the Planets complained. They would say that those are not the

type of thing that are covered by the clause. The clause would ban giving you a cash payment to the president or something like that, But when the president is offering goods to the market generally and a foreign government happens to to purchase them, they would say that's not an a molument. And the Planets have a much broader view. They essentially think that any kinds of payments, including profits from ordinary commercial transactions from foreign governments, you know, could

violate the foreign amoluments clause. So with President Trump maintaining his ownership in companies that do business with foreign diplomats, it's sort of hard to see the line. Did Trump's choice of his direct raw resort cross the line? You know? I think even he may have recognized that across the line, since he walked it back pretty quickly. Government ethicists were outraged about that pretty uniformly. Steering a contract to yourself is pretty much at the core of the criminal law

against using the government's money. So yeah, I think a lot of people felt across the line, and then depending on what the financial arrangements would have been, you know, the plantiffs in these cases that the Fourth Circus hearing would also, I think, have thought that there were moluments violations when foreign governments would have been paying Trump to

stay at the Durell Resort. From everything that his acting chief of Staff McK mulvaney said, the President was surprised at the blowback, and the reversal wasn't based on legal considerations. It seemed to be based on political considerations. Yeah, I can't imagine how they could have truly have been surprised. It was just, on its face, just pretty outrageous. But

you know, maybe maybe they were surprised. I think you remember this is you know, the president, who you know was was supposedly surprised that people were upset when he fired Jim comey um. You know that was the reporting that that happened at the time too, So you know, maybe and the political feelers about what's gonna what's going to seem you know, really across the line to a lot of people are not what they have been for other presidents. I'm not sure is a violation of the

emoluments clauses an impeachable offense. I would think that it certainly could be. You know, the impeachable offenses are. You know, there's obviously a lot of disagreement about it, but at its core are kind of great abuses of the office. You know, certainly abusing the office for personal gain would be at the core of the kinds of things that

that motivated putting the impeachment clause in the Constitution. I mean, the folks who wrote the Constitution were very worried about corruption and an influence coming from foreign governments because remember, the United States was quite small and weak when you know, we were first independent. So it's easy to find the quotes from James Madison and people like that, basically saying the president who kind of sells out the United States for the luker of a foreign country should be subject

to impeachment. So this this is pretty close to the core of what impeachment is. For the Fourth Circuit hearing this case on Bank is the second major setback for Trump in emoluments cases. Last month, the Second Circuit Court of Appeals in Manhattan revived a similar lawsuit that had been dismissed by a federal judge in that decision. Did the Second Circuit basically criticize the Fourth Circuit? So there are different views between the courts. I mean, courts tried

to be collegial. They can and do disagree about things. I mean, I think one of the many things that might be why the Fourth Circuit is rehearing it is the panel opinion. The three judge opinion was extremely dismissive of the lawsuit. I mean, there's the language in there that feels maybe even a little unnecessary saying that basically, you know, why do Maryland and d C even think that this is a proper case to come to court? And almost a suggestion that they're kind of wasting the

court's time by bringing the case. Second Circuit has a very different view. You know, the primary regulator of presidential emoluments is supposed to be Congress. You know, the constitutions suggests that Congress could decide to permit certain emoluments or gifts from foreign countries if they wanted to to the president. But simply because Congress has a role to play here, I don't think that means as the Fourth Circuit suggested that, you know, there's no business at all for judicial review

of the constitutionality. So you know, they're pretty different, pretty different approaches to the sort of propriety of judicial oversight by the two courts. What is it that the appellate courts are seeing that the lower courts are not, or is it based on whether a court is more conservative or more liberal. So the issue of standing, which is the question about sort, is this the right plain iff to bring? This claim is one that a lot of people think is fairly political in the sense of not

partisan politics. But it can be influenced by judges predispositions and ideologies about an issue. And that's because the law is a mushy and you often see a lot of five four splits in the Supreme Court on standing questions.

You know. So generally speaking, more liberal judges and justices tend to want the courts to be more broadly open to hear a wider range of kinds of claims, and especially claims maybe about government illegality, And generally speaking, more conservative judges and justice tend to want sort of stricter rules about who can come into court and fewer lawsuits about challenging government illegality. So I think withstanding questions about

suing a sitting president. It's probably somewhat inevitable that there might be different perspectives on the issue between more liberal and more conservative justice and judges. In the three judges that heard the original case in the Fourth Circuit were Republican appointees, and by an eight to seven margin, the full on Band Court is just barely Democratic appointees in

the majority. So just because of that, and because of the nature of these standing issues, and because of kind of the inherently sensitive political nature of lawsuits against the president of the United States, there could well be a shift between the the original panel and the larger court because of the democratic appointing majority. Another federal appeals court, the d C. Circuit, is also considering an emoluments lawsuit.

So you have these different cases bouncing back and forth from the appellate court of the district court, and in the end, is it going to the Supreme Court that makes a final decision on what violates the emoluments clauses. I would think that this is the kind of case that the Spreme Court would feel that they would need to take. You know, the court doesn't have to take

almost any case. It has a wider amount of discretion, but they generally think that cases of exceptional public interests in public importance, especially something like this that involves a novel clause of the Constitution being applied against a sitting president. You know, there's a lot of reasons why the Supreme Court would think that they should ultimately step in here and resolve these questions. But Andrew, how long would it be before the Supreme Court could hear that? Might it

be before elections or not? Well, Supreme Court has a lot of control over that, so that you know, the Court can and sometimes does act exceptionally quickly when they feel the need to. So you know, we all remember the litigation coming out of the contested two thousand election between Al Gore and George W. Bush. Their Spreme Court was acting within days to schedule arguments and to hear cases and issue decisions extremely quickly. The Court has the ability to do that if it wants to, but they

don't always want to. Um, you know, there might be reasons why they would prefer to just have a case on an ordinary schedule and let you know, months go in between the filing of briefs and and all these things. So you know, we shouldn't think that the Court doesn't have the ability to do this fast. They do have the ability, and so they I think we'll be signaling something pretty important about their preferences, you know, when we see once they're asked to step in, whether they do so,

and what kind of schedule they set for themselves. Thanks Andrew. That's Andrew can To, professor at Fordham Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I am June Brosso. This is Bloomberg