Trump Beats Another Emoluments Lawsuit

DC and New York. Could the result in those places be different? Joining me is Steve Sanders, a professor at the Mars School of lat Indiana University. Steve, this was a procedural ruling based on the standing of the plaintiffs Maryland and d C to bring the lawsuit. Tell us what the Fourth Circuit decided? Sure, John, that's exactly right.

This is a threshold issue. The Fourth Circuit didn't reach the merits of the argument of whether or whether or not President Trump has violent that the emoluments clause or what the emoluments clause means today. It's something that really has never been interpreted by a court. Um what the Fourth Circuit decided is that the District of Columbia and the State of Maryland didn't have what's called standing. A basic requirement of bringing a lawsuit in a federal court

is that you have to have standing. What that means is you have to show you have an actual or imminent injury. The requirement is intended to prevent people from just coming into court and seeking a judgment based on what they think the law is or what the constitution means. They may just have a generalized grievance. The standing requirement assures that you have some skin in the game, that you actually have something at risk, that this is a

true legal case or controversy. Now, the argument that Maryland and the District of Columbia made was their injury was lost business. President Trump gets a lot of business at his hotel in Washington. They said that both domestic and foreign clients steer their business to the Trump hotel in order to curry favor with the president, and that likely hurts business at convention centers and other facilities that Maryland

and d C operate. What the Fourth Circuit said was that is simply too speculative that for standing purposes, your injury can't be that much a matter of guesswork. They couldn't prove that they had actually lost any business for the Trump Hotel. And so with fourth circuit set is because you don't really have any evidence, you're just speculating here that you might have lost business that might have come to you instead of going to Trump. Sorry for

constitutional purposes, you don't have the required injury. So another emoluments lawsuit filed by congressional Democrats with a different twist from this suit, is before the U. S. Court of Appeals in d C. Might they have better luck with

the standing issue? It's possible. There aren't a lot of clear answers about the standing of elected officials to bring a suit when they say, hey, our prerogatives are at stake here, our constitutional responsibilities are being trampled on, and d s the Trump administration or President Trump is also relying on the argument that this suit must be dismissed

because it's a distraction from his official responsibilities. One thing about the so called standing doctrine is that I think most law professors and law students who learn about it realize it's extraordinarily malleable. And that is sometimes courts and judges will use standing and the absence of standing or the presence of standing to get rid of a case that they think they don't want to deal with, or

to signal what they really think about the merits. You know that there have been cases I teach my students where say, a state has said the federal government's failure to regulate c O. Two was contributing to the laws of each land. Is that really more attenuated or more speculative than what the state attorneys general we're arguing here. We'll see there is another body of doctrine about elected officials, members of Congress, and they're standing to sue the executive branch.

We'll see what the DC sergeant says about that. So, Steve, you have these emoluments clauses in the Constitution. So the framers thought it was an important concept. Who gets to enforce them? If neither Congress can enforce them, if a state can enforce them, who will enforce them? Well, this is a very interesting and legitimate question, and it is not really limited to a molument. So emoluments is interesting because it has never really been the subject of authoritative

interpretation by the modern Supreme Court. What exactly it means to violate emoluments. But you know that is a dilemma in much constitutional law that just because I as a citizen and convinced that the government is violating the constitut Susan, I can't just bring a lawsuit. I have to show I'm injured, and sometimes that kind of injury is difficult to prove. And so in this situation, who is injured

by the president illegally profiting allegedly from his businesses? So far, all the people who say they've had injuries from that are striking out. In the Federal court, this case was decided by a panel of three judges, all appointed by Republican presidents. The plaintiffs could ask for an on bank hearing before the full Court, which is not as conservative as these three judges are. They could ask to go

to the Supreme Court. What do you think they should do? Well, I think they should probably pursue both of those courses. It is typical when you believe that a panel of the Court of Appeals has aired, to ask the full court, all the judges, the on bunk court to reconsider the decision. If you do that, you're not forfeiting your right to eventually go to the Supreme Court. If the Fourth Circuit were to rule as them as well, I think they

should pursue all of their options here. Again, standing is one of those doctrines that's malleable, and sometimes the injuries in the eye beholder and larger factors and courts attitudes towards the merits will sometimes influence whether they think that again should be allowed to gain the courthouse door or not. And Trump and his attorneys are succeeding in that none of these cases has gone into discovery, and so there's no attorneys or Democrats looking into his finances to see

whether he did violate the emoluments clause. That's correct. Now, presumably Congress could hold hearings about this. Congress can can pursue this a different way. Congress can investigate and make conclusions about whether it thinks the president is violated the clause. Those don't have the force of law. But of course we see this administration frankly stonewalling efforts by Congress to conduct inquiries as well. There are even more subpoenas being issued.

Is it likely that as we get higher and up in the federal courts that Democrats will have more problems with appellate courts on these issues. Yeah, I don't think we can necessarily see that. I think many of us in legal academias are brown on this idea that we've decided what the outcome of court decisions is going to be by the partisan membership of the judges. I think

we can hope that won't be the case. But there are good judges out there who will try as hard as they can to to adjudicate these cases fairly and to explain their reasons persuasively in opinions. All right, well, you explained very persuasively the reasons here. Thank you so much, Steve. As always, that's Steve Sanders. He's a professor at the Marrow School of Law at Indiana University. 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 podcasts. I'm June Ball, So this is Bloomberg m HM.