U.S. Denies Trump Thinks Emoluments Clause is Phony

anywhere from two to five billion dollars to be president. Well, during arguments last Thursday before a fifteen judge of Pellet panel in Richmond, Virginia, a Justice Department lawyer Hashimmupan tried to walk that comment back when Judge Robert King put him on the spot. He characterizes phony evoluments clause. Now, what's the irrelevancy of that, honor? I think any fair characterization of what he said is he's calling the cleans here for he's not the exist and some minds he

called them bony evoluments clause. I understand your, honor, And it was either a tweet or off the cuffs team, and they are two clauses of the Constitution written in an on bank panel of the Fourth Circuit was considering one of three lawsuits accusing Trump of flouting the constitutions emoluments clauses. This lawsuit by the Attorneys General of Maryland in d C. Joining me as Josh Blackman, a professor of constitutional law at the South Texas College of Law, Josh,

is there a precedent here or is this completely uncharted territory? Well, until two thousand and seventeen, there are zero litigation over both the Foreign and Domestical Mouths clause. These are fairly obscure provisions of the Constitution that were never ever litigated, and is really not much precedent on them. In the Fourth Circuit case, a three judge panel had thrown the case out and ruled in favor of President Trump, and then the entire circuit and on bank panel heard the case.

How unusual is it to have an on bank panel in the Fourth Circuit. It's fairly rare for the Court of Appeals to hear case on blank. I have to guess maybe ten to twenty cases a year out of hundreds ever make it to the full court. But the Fourth Circuit heard on bonk on a fairly narrow and really not a very sexy issue. It wasn't on bonk

hearing for whether the president was violenting the Constitution. The question they're concerned what happens when the district court screws up in this case the lower court declined to allow an appeal in the middle of the case, And what happens when the district court does not allow an appeal? Well, the Court of Appeals that, well, too bad, we don't care. We're gonna dismiss the case outright. And that probably wasn't

the right path. I think the Fourth Circuit will say that when the district court won't allow an appeal, you have to let the case go through its natural conclusion before you can take it to the quot repeals. You can't do this sort of stop gap appeal in the middle. I mean, that's probably what the quote will hold here. But the judges did discuss the standing issue whether the d C and Maryland a g S had standing to bring the suit. That's right. The basis of these suits

is actually fairly business related. In Maryland, the Maryland government owns a hotel, the Befesdan Marriott, and in d C. The DC government owns the DC Convention Center, and these businesses are competing in theory at least with Trump International Hotel in Washington, d C. And these businesses have said that they are at an unfair competitive advantage because they can't offer foreign guests this sort of benefit of staying in the President's hotel. That's certain perk that they can't

hand out. And they've argued because they're being injured competitively, they can go to federal court to seek a remedy for their injury, which in this case will be telling the president to stop except thing these sorts of foreign payments. There were three hours of arguments and they seemed really spirited, sharp questions, challenging the attorneys on many different points. Judge Harvey Wilkinson dominated the questioning, we're up here making it up,

we're weighing in. There's no history that authorizes it, there's no precedent that authorizes it, there's no right conferred that authorizes it. This one's a lemon. It's it's the weakest of the cases that are springing up like Jimson weed against the presidency in this environment. Well I was in the court in Richmond nearly three hours for like a lot longer to the argument, Judge Wilkinson is fairly conservative

in the old school sense. He does not believe that the court should inject themselves into these fairly aggressive sorts of cases. There's no experience, there's no history, there's no tradition of the court tell of the president what kind of payments you can accept. This was usually something worked out between the branches, and I think Judge Wilkinson was worried about what happens if the courts take up this novel claim and inject themselves and what could very well

be an impeachable offense. I think Wilkinson would say, this is not for the course of the slives for the political branches to handle. The Justice Department lawyers ended up explaining away a comment that President Trump made about the emoluments clause as phony. How did that come across in the courtroom. Well, look, President Trump makes his lawyers a very hard job because he says and tweets all this

really dumb stuff. So at one point Trump stated, or maybe he tweeted, you know that we have this phony moluments clause, right, and the judge as well, well the president these moluments clauses are phony, and the lawyer said that he wasn't saying that the clauses are phony. He's referring to the litigation the cases, which I think he's probably a plausible reading of. The president sweets franctly they're irrelevant. I don't think it really managed the courts where the

president thinks these clauses a phony or not. The issue is fairly narrow that the courts are here to decide. I think a lot of these judges are more interested in getting sound bites and they are just in act making legal arguments. Did it seem as if one side was going to win the argument? Did it seem fairly divided? Or you just can't tell. Oh, I think Trump's going to lose. This is a court where I think the majority of the judges are willing to say that the

president's appeal was not proper. Now, let's just be very careful here. I don't think the court here will hold that the president is violing the Constitution. I think they'll he'll hold more narrowly that unless the district judge, the trial judge allows the appeal to proceed, than the appellate court has no authority to act that you need to wait through the district courts act first, and I think that's that's where they're gonna wind up. Can you explain

why the district court decided that there was no appeal possible? Well, generally you can take an appeal after a judge makes a final ruling. For example, we dismiss a case, you can appeal that. Here the judge is something separately, he declined to dismiss the case that I want the case to go forward. And generally you can't appeal a denial of a dismissive this you can't appeal it where you don't have a final decision. And the government said, come on,

this is the president of the United States. Can't you let us take an early appeal? And the judge said, no, I don't think this case warrants it. You know, I think my opinions reasonable people aren't going to disagree with me. Let's proceed. I think that was almost certainly an error. But what happens when this judge makes a mistake. Can you tell a court they say no, no, no, you're wrong,

And there's some good authority to say that. Know that when you have this sort of transigent district court judge, you're sort of stuck with it now. I'll just put disclosure that I filed amicus briefs. It's for the president in all these cases are when in Maryland, when in New York, and when in d C. So I do have a bit of a dog in the fight. I think the disrec court judge here behaved improperly. What was

the three judge panels ruling? Then? The three judge panel remarkably actually not only took the case away sly disrecord, they dismissed it outright. They didn't attend it back to the further consideration. They said, too bad, you screwed up. This case is over, which I think was probably not the strongest holding. This case is a lot of bizarre angles. Tell me why you filed amicus briefs in all these cases. I follow them because I'm a glutton for punishments. No,

our position is a little bit obscure. I represent Professor Stepan Barrett Kilman, who is a constitution law professor in Ireland, and for many years Professor Tilman has studied the Constitution text very carefully, and our theory, and this theory predates Trump, but Our theory is that the Constitution uses the phrase office and officer to refer to appointed positions on elected positions. And they said, Josh, who cares. Well, if we look at the text of the foreign Emolument's clause, it applies

to those whold office under the United States. We think this language for as people who are appointed by the government, that is, you know, the Secretary of State or a judge of the federal courts. Right, we don't think that this language applies to elected positions. If we're right, then the foreign of Mooluments clause simply doesn't limit the president's actions. I can see this is some of an orthox position as so far the courts haven't accepted it. Indeed, the

judges have mostly rejected our position. But we still think we have a argument to make, and we keep making it in any court don't listen to us. So, a second emoluments case filed by two D fifteen Democratic members of Congress is before the Federal Appeals Court in d C. Any idea how that court might rule, Well, the DC Circuit case June is really different. Let me explain to you why here you had two members of Congress, Sue and they argue that the pressment was violent in the Constitution.

This wasn't the House or presentative suiting or the Senate. These were individual members. And there's a I think a pretty good argument that individual members of Congress can't go to court to sue, right, that's not what they're there for. They can sue perhaps as a body, maybe the whole Congress, they can't to individually. So I think the DC case we thrown out because the members of Congress won't have what's called standing. What about the third case at the

Second Circuit? In September, the Second Circuit Court of Appeals in Manhattan ruled that a restaurant group had standing to sue Trump. The Second Circuits in a different position. The Second Circuit case was brought by business owners in New York who in hotels and restaurants, and they claimed that they were competing against Trump Tower Hotel in Midtown. The disrecord in that case actually dismissed the case outright, but then the Second Circuit Court Appeals, a three judge panel,

reversed and held that the case was proper. The government filed a petition for re hearing on bank, that is, re hearing before the entire court. That motion is impending now for a couple of months, and we've not heard anything. So we're a spot where the Second Circuit hasn't signaled one or the other one. They're going to do the Second Circuit historcually, here is very few cases on blanc, so if the President loses that case, it's very lifely

goes to the Supreme Court. I think actually the Maryland case in the New York case are very lifely extreame Burton next year or so. Thanks Josh. That's Josh Blackman, a professor of constitutional law at the South Texas College of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg