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S2: Most Americans have no idea that under Chief Justice Roberts there 73 of these 5 to 4 partisan decisions in which there was a big Republican donor interest implicated and 73 out of 73 the big Republican donor interest why.
S3: There is a strong argument that Trump’s violation of basic constitutional anti-corruption norms ought to be part of the conversation ought to be an article of impeachment.
S4: Hi and welcome back to Amicus. This is Slate’s biweekly podcast about the Supreme Court the courts the law the rule of law and justice. I’m Dahlia Lithwick and this week’s show is kind of jam packed because there’s a whole lot of law going on in the world since we last spoke. Later on in the show we’re going to talk about Mitch McConnell’s takeover of the federal bench and we are actually going to return to the Emoluments Clause which is why it’s still a thing.
S5: But first we’re introducing a new segment this week in which we ask an expert to answer a burning question from our listeners and this week’s question is really what the heck is a quid pro quo. So we are picking up the new Amicus Bat phone and calling in to a former Amicus guest Mimi Rocha for some help. She’s currently Pace Law School’s Distinguished Fellow in criminal justice and a legal analyst for MSNBC and NBC News. Before that she was an assistant U.S. attorney in the Southern District of New York from 2001 to 2017 where she successfully prosecuted and tried numerous cases including several high profile organized crime cases. So the question for me this week is what’s the quid pro quo. How do you know if one has taken place. And how would a prosecutor go about proving that when it happened.
S6: So OK quid pro quo literally is or means a thing for a thing something for something. So the classic example and one that you know believe it or not I saw many times it still happens is a mob shakedown where you have a associate working for a mob boss and he goes to a store in Brooklyn say and says you give me five thousand dollars a month or else you might see some windows broken on your store every couple of weeks. I’m and we’re not going to protect you ok. And of course that store pays up and they get the protection. And what’s amazing to me about the impeachment scenario that we’re talking about with Ukraine is how similar it is to that right. Ukraine is the store and all the people. Rudy Giuliani and all the people who communicated with the president of Ukraine Ukraine or his aides there the mob associates working for the boss and they’re saying here not give me money but give me this deliverable give me this information. Statements saying we are investigating we are looking into these dirty people. The Bidens and what they did here and corruption in Ukraine. You give us that and we will give you protection from who from Russia in the form of military aid and we’ll give you this meeting in the White House that you want. So it’s really the thing for a thing something for something. And it’s very parallel to a classic mob shakedown to go back to my store example and everyone was very is very explicit right in the demand you give me the money and we will protect you. It almost never happens that way. That was me paraphrasing. Normally it’s done in a more subtle or implicit way. And that’s a matter then of piecing together different things that people have said and done like withholding the protection or withholding the money until you get what you want. I mean here they eventually freed up the money for Ukraine because they got caught but the money was held up before the demands were even being made. And so it doesn’t have to be an explicit demand. It can be implicit from all of the different things that are said and done and that is usually the way that it works. I think that Donald Trump’s line in his call with the Ukrainian president of we need a favor though is pretty explicit in and of itself. But even if you didn’t have that I think you could look at all the surrounding facts and circumstances and find an outside quid pro quo.
S7: And while I have you me me can I ask you just one Amicus Bat Phone bonus question that Senator Lindsey Graham this week somehow tried to get around your perfectly crystal an explanation of quid pro quo by suggesting that incoherent people with incoherent plans can’t form the requisite mental intent to ask for a quid pro quo. Is that a legitimate defense in your view.
S6: No. So first of all he’s confusing what is a real legal principle of guilt. Can someone form the requisite intent for certain crimes under certain criminal statutes. You have to have like obstruction of justice. You know that we talked about the molar probably you have to have a certain intent to do something here. What we’re talking about is an act. It’s not about an intent. It’s about an act. This whole idea that there are corrupt quid pro quos and not corrupt quid pro quos is is meaningless. There is you I mean here are the acts happened. We know that the demands were communicated to Ukraine. That’s indisputable. That is in someone’s testimony that is in Volcker’s texts. And those are just two examples. The demands were communicated whether or not everybody was communicating the same demand exactly the same way is meaningless. The question is did they all know the general idea of what was being asked and why. And the answer to that I think overwhelmingly is yes I think what the Republicans are trying to do is sort of do this almost well Donald Trump didn’t really know what was going on defense. And I think you know we could talk for hours about that but I think basically if you just look at his phone call with the Ukrainian president and you know that’s not true.
S8: Mi Rocha is peace law school’s Distinguished Fellow in criminal justice. She’s a legal analyst for MSNBC and NBC News. And before that she was an AUSA in the Southern District of New York. And when I have crime questions she’s the person I want to call Thank you Mimi. Thank you darling. Just before we get to our conversation with Senator Sheldon Whitehouse friends I wanted to let you know I will be in Miami next week Tuesday November 13th to be exact. And I’m hoping to see many of you out there Amicus is teaming up with the Miami Book Fair and the reporters committee for the freedom of the press for a very special Amicus live show. I will be joined by an all star panel of female journalists to tackle some big questions about investigative reporting the press the First Amendment and holding the powerful to account tickets to the show are free. For more information and free tickets please visit Slate dot com slash live. And if you can’t make it to the show Slate Plus members will have access to a special bonus episode of Amicus. Live from Miami. If you’re not already asleep plus member it is the very best way to support our journalism here at the magazine with a Slate Plus membership you’ll be helping to assure Slate’s future. You’ll be able to enjoy this and all of Slate’s podcasts ad free and you’ll have access to exclusive bonus content like the Miami live show from this and many of your other favorites late shows. Check out the free trial at Slate Plus dot com slash anarchists. And now to the federal courts.
S9: As of this week President Donald Trump has achieved the distinction of ceding more judges than any president since 1980. Effective this minute one quarter of the federal appellate courts are now stocked with Trump judges one appellate court has already flipped. One is about to flip. That’s a big change in a short amount of time. Now here is Donald Trump taking credit for packing the courts and implying that somehow President Barack Obama just forgot to fill federal vacancies. I want to thank you President Obama.
S10: For giving me one hundred and forty two open judges how you allowed that to happen is beyond me beyond me.
S11: Thank you President Obama very much everybody in this room. Thank you.
S9: Now this of course is not true because of Mitch McConnell’s actions. Donald Trump actually inherited a bench with 112 judicial vacancies as compared to the 53 vacancies President Obama inherited when he took office. And at this juncture it almost doesn’t bear saying again that Mitch McConnell is pushing through nominees who are younger more ideological less qualified than we have ever seen his judges are overwhelmingly white they’re overwhelmingly male and some of them have taken positions so far outside of any mainstream legal thought that it would take your breath away if you were watching right now the Judiciary Committee is looking at somebody who is opposed to not simply abortion not simply contraception but IVF and surrogacy. These are the judges who are being rounded up and pushed through some of these nominees don’t bother to answer their questionnaires anymore. Some don’t bother to answer committee questions anymore. And Mitch McConnell has done away with what used to be vetoes from home state senators and is effectively gutting the longstanding American Bar Association’s ranking system. To be sure nine of President Trump’s nominees have now been rated not qualified by the NBA as compared to zero under President Obama. And now we’re starting to see Republicans in the Senate attacking the NBA itself. OK I’m heated up. I’ve probably written a version of this piece 20 times 40 times we’ve dedicated many shows to it. But one of the reasons that nobody wants to talk about this including by the way presidential hopefuls on the debate stage they never discuss this is it it just feels futile. MITCH MCCONNELL I think could probably put up Eric Trump for a lifetime seat on a federal court tomorrow. And there’s just nothing that Senate Democrats or a future presidential nominee could do about it. Right. Right. Well Senator Sheldon Whitehouse who has been a frequent guest on this show over the years has thought more about the takeover of the federal judiciary than almost anybody. And also about the connection between dark money and the transformation of the judicial branch. I wanted to have him back on the show to talk about this issue and to answer for me. Is this just hopeless. Are we going to just witness a federal judiciary that is functionally unrecognizable for us and our children and our children’s children. Senator Whitehouse has been senator for Rhode Island since 2007. He’s now in his third term. Previously he served as Rhode Island’s U.S. attorney and state attorney general. Senator Whitehouse Welcome back to Amicus.
S12: Thank you. Dahlia it’s great to be with you.
S8: Well OK let’s start with. Tell me I’m wrong. Is there anything at all that people should be talking about doing about this judicial firewall that feels like it is now outpacing our ability to even talk about it or are we just surrendered to this we’re surrendered to it if we do nothing.
S12: But there are things that we can do. The first thing is to look at patterns on the court. If you try to prove a discrimination case in court you can bring into evidence patterns and patterns can be proven of of bias and so patterns matter. And what we have done as Democrats is to bemoan the ghastly Citizens United decision regret Shelby County’s disassembly of a key part of the Voting Rights Act. Become angry about Janice taking a shot at labor unions. Kind of going through the more flagrant 5 to 4 partisan decisions. But we’ve not focused on the pattern at the court and the pattern under Chief Justice Roberts is that they’re now up to seventy three seventy three of these decisions that are marked by a few characteristics one it’s five to four. They haven’t tried to get a real majority just a bare majority to the 5 to 4 breaks along partisan lines and 3 there’s a big Republican donor interest at stake. Seventy three of those cases and seventy three for seventy three the big Republican donor interest won and I do think that calling out the emperors as having no clothes might create just a little bit of shame on their part and a little bit of caution about what they are doing to the reputation of the court. So we’ve got to be more analytic and thoughtful about this.
S7: The second thing we can talk about more is is the role of dark money surrounding the court and how we can dig through that mess before we get there Senator I think I want to press on this a little bit with you it seems to me that Democrats are in a little bit of a double bind because they still rely on the federal courts to check the worst excesses of Trump ism and more often than not. I think it’s fair to say the federal courts have unerringly showed up and so I think there’s a feeling that by attacking the legitimacy of the courts or of the Trump justices or the Trump appointees generally you’re undermining the institution of the judiciary itself that Democrats really rely on as kind of the last bulwark when all of the other institutions are falling away.
S12: And so yeah it’s it’s it’s tough and it’s not just Democrats.
S13: I mean every American depends on a judiciary that will give them a fair hearing when their interests are called into court and because the judiciary is not a branch that has a military or police departments or any power to enforce its rulings that depends on public acceptance and public confidence.
S14: So what these five Republican justices have done is to trade on that public confidence and to trade on the public’s hesitancy about criticizing the court in order to advance their agenda under the cover of that protection. And I think to a point you kind of have to spot them some cases and say look we’re not going to really call them out over just that because there is this important thing of the of the credibility of the judiciary. But when you get to 73 cases when you’ve totally turned over the political system so that corrupting special interests have unlimited money to spend when you’ve endorsed and enabled the surgical targeting of minorities in Southern states to take away their right to vote when you’ve undone decades of precedent to take a whack at public labor unions when you’ve done these things that are both big and many many many.
S12: There comes a time when you simply have to just not be played for a sucker any longer and call the game for what it is.
S8: So you really made the decision to do that right before the term started you and four other senators filed that kind of scorcher of an amicus brief in a gun case. It was in some ways less about the Second Amendment and more almost tuning up the court a warning cry that the court itself is on the hook and famously concluded quote The Supreme Court is not well and the people know it. Perhaps the court can heal itself before the public demands it be quote restructured in order to reduce the influence of politics that was seen as a shot across the bow. It was seen as a very very aggressive move and of course it caused a hurricane of fury at the National Review in the Wall Street Journal and Senate Republicans. But it seems to me that what you were doing is essentially saying look this public legitimacy is all you have. You reference this Quinnipiac poll that says that the majority of Americans are feeling pretty wobbly about the court. In effect it wasn’t a threat to the court. It was saying to the court you are demonstrably failing to live up to the institutional values that you hold yourselves to right.
S15: That was the intention.
S12: I’m not a party to the underlying case and I’m not directly interested in the outcome of it in any way. But there were so many weird signals about the way in which that case was brought up before the court that are part and parcel of this larger credibility problem that the court has created for itself which isn’t just outcomes. But again it’s how they have gone about their business and how they have allowed anonymous money to surround and bring influence to bear on the court. It’s just a bad setup. And the more people look into it the smell here it looks. And because this particular case had so many of those tell tales we went ahead and filed this brief by the way it’s not the first such one that I have filed but it’s the one that the right wing chose to get provoked by so they went through their sort of standard operating routine of cranking up all the usual suspects to write basically false assertions about what we wrote and why we wrote it. It’s a predictable kind of right wing behavior that I’ve seen before when I’ve been provocative in other areas.
S14: And this time it got provoked.
S8: With respect to the capture of the court by the big donor interests Senator can you talk for a minute about the things that felt hinky to you about how that gun case came up to the court and the ways in which seemed like special interests in this case the NRA and some big money was shaping and influencing how that case got there what is it that to you signal that this was a red flag about the idea that the Court is above politics and above money.
S13: Well let’s focus just on the NRA for a minute. The NRA had spent an enormous amount of money to support Judge Kavanaugh for his confirmation.
S14: They had marketed him to their supporters as a pro-gun judge who would quote break the tie and allow the NRA to make political progress in the court. We don’t know the extent to which the NRA influenced Cavanaugh’s selection because that has been kept secret but it would be surprising to me if Leonard Leo and his Federalist Society Group that tells the Trump administration who should be judges we’re not listening to the NRA about this particular pick and then the NRA related group that was the party in the case made I think a little slip of the tongue pointing out the what they called the eject of the court.
S13: The project of the court to roll back gun safety regulations and support the firearms industry’s efforts. The court itself had steered away from gun cases for quite a while. And so to pick up this one. Almost immediately after Kavanaugh got on the court and now could deliver on the NRA is 5 to 4 promise it all just adds to a series of of a comfortable and unpleasant signals.
S7: And I guess it leads me to the real question I think I wanted to ask you in the wake of that briefing in the wake of your pretty forceful pushback against the court. Are you mad that the Heritage Foundation and the Federalist Society are so so good and effective at channeling dark money toward you know effectuated outcomes at the court. Or are you just mad that progressives are so bad at it. I mean one of the things that is so interesting to me is there is no equivalent fed sock. There is no equivalent. Heritage Foundation. There is no machinery that is analogous and I wonder if it is a little bit goes to your point about being played for suckers is the solution here for progressives to get huge money start pouring it into the court create a machinery that builds 36 year old wild eyed advocates and then there would be parity is that the answer.
S16: That’s one answer. It’s not the answer that I would prefer or would propose. What makes me angry is that all of us Democrats and progressives have kind of set this out. While the apparatus that you described was developed by the right and we haven’t called it out we haven’t systematically called it out. Take a look at the situation right now. United States Supreme Court justices are selected based on a Federalist Society operative his recommendations.
S13: While the Federalist Society is taking large amounts of dark money from big donor interests so there’s dark money behind the selection of justices. Then when the selection is made the confirmation battles for those nominees are fought with dark money. The Judicial Crisis Network took to 17 plus million dollar contributions one to push Garland out and Gore stuck in and to to push Kavanaugh through and onto the court.
S15: There’s every likelihood that the donor in those two 17 million dollar contributions was the same donor which if that were true means that somebody paid thirty five plus million dollars to influence the composition of the United States Supreme Court.
S13: And we have no idea who that person is and what their interests are before the court. That’s not a good place to be. And then once they’re on the court if you look at the amicus curiae I array the so-called Friends of the court who come in and file briefs hoping to direct the judges what to do. They are crawling with dark money funded front groups who don’t reveal to the court who the real party in interest is behind the brief and very often the actual litigant is a dark money funded front group that went around the country looking for a plaintiff of convenience in order to bring a case that their technicians tell them would likely lead to advances for the donor interests that fund those organizations. We don’t have anything like that on our side. I think to replicate it it’s just you know do dirty pool to fight dirty pool isn’t I think the right way to behave in something as important as this. But by God we ought at least be calling it out so transparency I think becomes an incredibly important virtue in and around the court. And I’d add the court doesn’t have an ethics rule for itself and the court has extremely weak disclosure about where individual justices are getting their hospitality from. So there is a conceivable situation with judges who are selected by dark money interests confirmed thanks to dark money political pressure instructed by dark money Emma key who are supporting cases brought by dark money fake litigants are also enjoying the hospitality benefits of the billionaire interests that are behind this operation and all of that needs to be brought into the daylight so we can clean it up if it is happening and we can reassure the public that this is just you know an unfortunate series of coincidences if it’s not happening.
S8: So I want to give you a chance Senator just to be really clear on this when you are shining a light on this particularly in the Americas brief from October you are not talking about court packing. You are not talking about structural judicial reforms you are talking about simply sunlight and letting everybody know the pipeline where the money is coming from where it is going how it is affecting outcomes. That’s the extent of what you want to do in terms of your intervention in this kind of lopsided judicial balance right.
S17: The structural reforms that I have supported I think are very reasonable ones. The Supreme Court should have an ethics code. The Supreme Court should disclose the way legislators and executive officials do the gifts and hospitality and travel that they receive. The court should demand real transparency like we’re trying to get four American shell corporations around the amicus curiae eye and the litigation firms that appear before the court and bring cases before the court. And that kind of transparency I think would be good for everyone. I also think that the court on its own volition should steer away from 5 to 4 partisan decisions just because that doesn’t do the court’s image any good. When the court did Brown vs. Board of Education the great decision that undid segregation in our school systems they worked very hard to make it a nine to zero decision. The Roberts Court is happy to run as far as they can. 5 to 4 and I think that’s a strategic error for the court. It should be more modest about its goals and more inclusive to get bigger majorities and last of all they should stop messing around with the fact finding that they do fact finding by judges is wrong as a matter of practice.
S13: It’s not what they’re supposed to do. The founders of factories supposed to be the district courts the trial courts that hear the witnesses and make those findings.
S17: And yet you see these preposterous factual findings like in Shelby County. Don’t worry racism’s over in the south. We don’t need these protections any longer. Or in Citizens United. Don’t worry this money is all going to be transparent and independent and therefore you’re not gonna have to worry about huge dark money expenditures and corruption. Those were the foundational facts upon which those decisions turned and they were both flagrantly false and had no basis in the record. And things like that the court has to stop doing if it’s going to enhance its credibility.
S8: So Senator one last question on the courts and that is just this. You’ve got a bunch of colleagues in the Senate who are now campaigning to be the Democratic presidential nominee. My sense watching the debates has been that there has just been an intolerable amount of hush around the questions of the court and with one or two exceptions you know talking about court packing plans or talking about maybe putting more Anthony Kennedy is on the court. There has been this twisted pretzel of if we don’t talk about it maybe it will go away as a problem and I’m just wondering if you could give advice say going into the next round of debates about how to talk about something that is both dispiriting and paralyzing but also I think you and I agree possibly the single most essential issue going forward. What’s the way to thread that needle. How do you get Americans who have been asleep at the switch on the issue of the courts and court packing to wake up and prioritize it.
S15: I think the first thing is to highlight the record most Americans have no idea that under Chief Justice Roberts there 73 of these 5 to 4 partisan decisions in which there is a big Republican donor interest implicated and in 73 out of 73 the big Republican donor interest won. I think that’s a piece of evidence that if we were bringing a discrimination or bias case to a jury would be very compelling to that jury and would be the important heart of the case that you made and the American public is the jury in this conversation and they’ve got to be shown that evidence so they understand what’s going on. And then I think for solutions I know there are people who say that we should enlarge the number of judges on the court. I have not gone there. I think there are plenty of really good solutions that the American people can support quite readily including the ethics code for the court the disclosure of the gifts and emoluments and travel that they’re receiving. The transparency about who’s showing up in court who’s really behind them who’s funding them. All of that stuff should be kind of easy for people to agree to the fact that those things are controversial is yet another signal of the donor interest that don’t want their hands to appear as they influence and manipulate the court.
S7: Before I let you go Senator can I ask you about impeachment for one moment. Sure. My wrong and when I look at your colleagues in the Senate that we’re seeing a lot of senators on the other side just treating this as though we can wish it away whether it’s we’re just going to decline to read any testimony or we’re just going to put Hunter Biden on trial that there is a way in which the ethos of the moment seems to be just refusing to engage with the fact that this is actually going to happen.
S16: Yeah I think it’s a very very awkward place for some of my colleagues. Because it’s so hard to justify the conduct that has emerged in the testimony over in the House so far. I mean the evidence so far appears to reveal a fairly clear solicitation of a bribe the bribe being a false investigation cooked up by the Ukrainians and the quid pro quo for that bribe being releasing millions of dollars in urgently needed defense funding and getting the president a meeting with President Trump.
S15: That’s a pretty straightforward case. Bribery is at the heart of the constitutional impeachment provisions and there is really no evidence to the contrary at this point. So I think at the moment we’ve got a very considerable effort at trying to avoid that difficult point and change the subject if possible. But I hope and I believe that as articles of impeachment emerge if they do and they come over to the Senate there will be a sense of the decorum and of the solemnity of this situation that our colleagues begin to feel you have to take a special oath and be sworn in as a juror in an impeachment. And the history of the impeachments yields a lot of precedents that I think will help the Senate inform itself. So there is the prospect still for the Senate to be the agent that the Founding Fathers expected it to be which is a place that will stand above politics recognizing that the loyalties of the public will be implicated by an impeachment of a president or other senior official but nevertheless willing to do the sworn duty that they will have undertaken to the facts and to the law and to their consciences.
S9: Senator Sheldon Whitehouse has been a senator for the state of Rhode Island since 2007. Senator thank you very very much for your time this week.
S13: Thank you very much and thank you for your interest in an issue that is way too often overlooked.
S5: So now we want to turn to the emoluments clauses. We haven’t actually done a show about the emoluments clauses of the United States Constitution in a couple of years. But believe it or not there are cases that were filed challenging the president’s continued profiting from his hotels his golf courses his restaurants and those cases have not gone away. Indeed there are three separate emoluments lawsuits still creeping creeping through the courts. And even though it’s no longer clear when they’re going to get resolved how they’re going to get resolved or whether these emoluments violations could form some part of any article of impeachment. The fact of the matter is the appeals courts take these claims very seriously and they will be hearing some of these cases in the coming months a few weeks ago in response to a huge public outcry over the plan to host the G7 at his Doral golf course in Florida. President Trump actually dismissed the emoluments clauses as well phony. He said it was a phony Emoluments Clause but of course it’s not phony just because you don’t like it. It’s just obscure. So we thought we’d spend a little time on the show today looping back and assessing where those three lawsuits came from where they are headed and what the emoluments clauses were designed to do and whether they’re able to do it. So to that end we’ve invited Deepak Gupta to join us on the show. He was one of the lawyers on the very first emoluments suits and is a lawyer on the second as well. He’s the founding principle of Gupta Wessler PLL see where he specializes in Supreme Court appellate and complex litigation on behalf of plaintiffs and public interest clients. Deepak welcome to the podcast. Thanks for having me.
S18: And I know that was a very strange windup because it makes it sound like come out of the corner stand in the sun and tell us your story but I do think that if I think back to the first week of Donald Trump’s presidency in 2017 the only thing anyone was talking about was the emoluments clauses and it’s all still happening even though now we’re screaming about quid pro quos and Ukraine right.
S19: Yeah that’s right. I mean like so many other things in 2019 it’s hard to know where to put your attention. There’s so much happening so quickly and you know the legal system is slow and it takes time to work things through the courts. You mentioned we filed the first case about the Emoluments Clause and we filed it on the first working day of Donald Trump’s presidency. So you know Inauguration Day was a Friday and we filed the case 9 a.m. on that first Monday morning and tell us who we is who is we in this show so there are actually three cases and I am involved as counsel in two of the cases so the first case that we filed we now represent. Hotel and restaurant industry competitors of the president’s businesses both in New York and in D.C. I also represent the state of Maryland and the District of Columbia. In a second case that was filed and then there’s a third case brought by members of Congress here in D.C. and all three cases remarkably enough are alive and moving through the court system.
S20: Before we get to the cases let’s go way way way back and I remember really early on in this presidency we were explaining that these were these dusty old archaic language words emoluments. There’s two separate foreign and domestic clauses can you pull them off the shelf and explain what the two emoluments clauses are where they’re located and what that word even means.
S19: So there are two clauses the foreign Emoluments Clause and the domestic Emoluments Clause and the foreign Emoluments Clause which you can find in your pocket Constitution and Article 1 Section 9 Clause 8 is a flat ban on federal officials quote accepting any present emoluments office or title of any kind whatever from any king Prince or foreign state. So in modern English what that means is you can’t take a present or a monument and we’ll get into what in a monument as I’m sure you can’t take those things from a foreign government and a monument we think just means any profit or thing of value not just money but but other things that have value and that might be in exchange for something else. A present is something I give you and don’t expect anything in return. Right so the monument is a payment where I do expect something in return. And then there’s also a domestic Emoluments Clause which only applies to the president. And what that clause basically says is look we’re going to give you a salary for being the president but you can’t get any other a monument from the United States or from any of them meaning from any of the states in return for being the president. All you get is your salary and you can’t use your office to try to extract payments from the government.
S18: And if we think back to Barack Obama and the Nobel Prize money if we think back to Jimmy Carter’s farming interests it has generally been the practice that once you are sworn in as president you divest yourself of anything that you could be making huge profits off. Is that that’s been the pattern and practice right.
S19: Yeah that’s right. And you know you mentioned that we’ve kind of dusted off these clauses and it’s true this is the first litigation in the courts about the clauses but the Department of Justice has long had opinions advising presidents about how to comply with these clauses. So you mentioned Barack Obama getting the Nobel Peace Prize before he accepted the Nobel Peace Prize which comes with some money which arguably was from the Swedish government. He made sure that the Justice Department thought it was OK for him to do that. And the Justice Department said Yeah it’s OK because this actually isn’t coming from the Swedish government. It’s coming from an independent prize committee. And you know you mentioned Jimmy Carter. He had his farm he put that farm into an independent trust so that there wouldn’t be any question that his business interests were motivating any decisions he made when he was president. And there’s a really long history stretching back over 100 years of presidents getting the advice of the Justice Department and taking steps to ensure that they’re complying with these clauses. So it’s not like we made these clauses up there in the Constitution. And what’s remarkable is that we for the first time in American history have a president who’s now really openly and brazenly violating these clauses.
S20: So before we dig into the ways that the clauses are being violated I guess I would just love for you to explain what was the framers principle concern. And I’m guessing that there were rather different concerns in terms of the foreign and domestic clauses and I can imagine that the answer is exactly what you said. There’s a I can’t believe I’m going to use the words quid pro quo again but there was some sense in which we didn’t want the French government to be paying the president money in return for favors right.
S18: There was some feeling that it would allow the president to subordinated the needs of the American polity to foreign entities. Right that’s the concern there that we didn’t want the president to be bought and sold by foreigners. Right that’s the chief concern that they’re looking out for.
S19: Yeah that’s exactly right. That’s why we have a foreign emoluments clause that the framers were very they were obsessed with the possibility of corruption. They were students of history. They knew that republics of and failed because of corruption or outside influence. And you have to realize this was a fledgling republic there were much more powerful European powers that were much wealthier and they were very concerned that the office holders private interests would improperly influence the exercise of public power. And they knew that was a real risk. There was a tradition in Europe of giving diplomatic presence to try to curry favor with officials and most famously Benjamin Franklin accepted a diamond encrusted box from the King of France. And that led to fears that he would be unnecessarily corrupted. And so there was a tradition of this going back centuries and the framers understood that this was a problem and there was a there’s actually a predecessor in Holland. You know the Dutch were involved in a lot of international trade. There was a predecessor of the Emoluments Clause to try to prevent corruption. And the framers borrowed from that legal tradition the domestic Emoluments Clause was also concerned with corruption. But it was concerned with corruption from within the framers were very concerned that the president not be someone who would try to use his office to get personal benefits at the expense of one state over another state or at the expense of the United States. And so they made sure that this clause applied in actually applies only to the president to prevent the president from using the awesome powers of his office to try to extract personal benefits.
S8: And so I guess I’m stuck on the quid pro quo again is the problem accepting the snuff box or is the problem accepting the snuff box in exchange for implicit favors in other words. I think Donald Trump’s response to all of this is like I can’t help it that I’m awesome. You know I can’t help it that people want to buy for margaritas. Is that the problem or is the problem only when you’re caught giving favors to either foreign or domestic interests to enrich yourself.
S19: Yeah it’s the former not the latter. The framers were really they had a sophisticated understanding of how corruption works and they understood. I think that it’s not always just an outright bribe where someone says Here’s a bag of cash I want you to do x that’s bribery that’s illegal anyway. And it’s actually mentioned separately in the Constitution but the emoluments clauses are kind of like they’re a conflict of interest rule basically. And the idea is we don’t even want to have to ask the question whether your interests are compromised because you’re taking money from foreign governments you’re entangled in business with foreign governments. We are just going to set a flat ban that says you absolutely cannot if you want to hold a position of trust in the United States government including the presidency. That’s a serious responsibility and you can’t be entangled with foreign governments and have your loyalty questioned. So it’s very much a kind of prophylactic rule that’s designed to prevent even the possibility or appearance of corruption.
S20: Right. So this this actually dovetails with some of the judicial ethics rules where you’re more concerned about the appearance of being in the tank for someone than the actual transactional what who’s getting what. It just has to look above all that which makes sense except then I’m remembering that awesome press conference with Donald Trump and his lawyer and all the file folders and the announced media that we know that the boys are taking over the company and I will be arms length and you know Ivana is not taking a salary so we’re good. So in some sense I guess this attempt to to get out from under all of this has thrown a shadow over everything since right. I mean I think the announcement was made we’re not going to profit. We are asserting that I’ve got this arm’s length arrangement with my sons. I’m asserting that dust off your hands and move on. That obviously wasn’t enough for you. You guys brought suit in two different locations. But what is the answer to the question really. We’re not profiting.
S21: Yeah. Well I mean the simple answer is it’s not true. You know the the president did give that press conference it seems like it seems like an eternity as it was under a decade ago.
S21: But it was actually right before he took office and I think that that you know bespeaks that the president understood he had a problem. I mean he hired a lawyer. They recognized that if they didn’t do what all the previous presidents have done and divest themselves and put the assets into a blind trust or sell them off that they were going to have a problem and they tried to paper that over. And you may remember that there was a table at that press conference full of folders that were probably empty. There probably wasn’t anything in there and they didn’t really do what they said they were going to do. I mean they did not insulate the president from the profits that his businesses are getting. He maintains an interest in those businesses and as soon as he leaves office he can take all of that money and we’ve seen over the course of his presidency he misses no opportunity to promote his private businesses. He misses no opportunity to try to promote them on the world stage and have world leaders go there and have everyone have to go there and cover it. And so to a degree that we’ve never seen before in American history. Donald Trump has mixed his private business interests with his public office and has made sure that he’s in a position to profit from it. And so it’s no answer to say oh well you know right now my sons are kind of running the day to day and we know this because when he talks about it he sometimes slips and uses the first person and describes his businesses as equivalent with himself. So you know we saw this most recently when he made the decision to have the G-7 summit at Doral in his private resort in Florida and he spoke about that as if he were still in the hotel business. And Mick Mulvaney said the president is in the hospitality business. So this is a president who I think as with so many other things we’ve seen has not backed away from kind of maximizing his own private interest.
S20: And in fact I think he’s gotten more brazen about it as as his presidency has gone on although I guess this is a good time to note that on that G7 decision after a pretty quick and ferocious public outcry they did back down from that which is something we hadn’t seen. So it suggests that there is at least some boundary beyond which they don’t attempt to cross. But I think this is a good opportunity to talk about the three lawsuits and the ways in which you know the Trump hotels for instance have been you know we can talk about the golf courses we can talk about you know Air Force jets stopping in Scotland. But underneath the surface it seems like everything up to Doral is fair game.
S21: Darrell was a kind of pivotal moment because until that point the president really aside from some cosmetic kind of moves he hasn’t really shown that he feels terribly constrained and has continued to kind of promote his businesses regardless of these norms. But I actually think more so than any perhaps any litigation that I’ve ever been involved in this litigation has been about teaching the public about norms that have been in the Constitution and have always been there and have kind of come back to life because of the unique abuses that Donald Trump is engaged in. And so you know if you think back to January 2017 when we filed this case I think people were pretty skeptical. Even law professors even people who study the Constitution were kind of like what’s that what are those clauses are those you know is this a real lawsuit. Do you really have standing. Is this really something we should take seriously. And I think I have seen over the course of the time since then that the conversation has really changed that there is much more consensus that these are serious norms that have a certain legitimacy because they’re in the Constitution and we have to take them seriously and some people think they should be part of the impeachment conversation. And so you saw pushback I think not just from Democrats but also from Republicans that were concerned that you know they’re defending Trump on so many fronts. Why do we have to defend him on this other front where it seems like such a clear legal violation. And I think as a result he back down. I think that’s not unrelated to the fact that this litigation has been filed and it’s educated people about the importance of these clauses.
S20: So before we move on from standing that’s been the speed bump all along. And standing is one of those things that when they teach it to you in law school your head pounds on the table from exhaustion. But it’s important. So I want you to walk us through if you would this seemed you know a couple months ago as though it was the inescapable flaw in these cases was that nobody was going to be found to have standing. So can you just unpack for us what that means and why it seemed like an impediment to these suits prevailing.
S22: Sure. So just for people who haven’t been through law school standing is the requirement that basically you know to come in the courthouse door you’ve got to show that something bad happened to you that the thing that you’re complaining about caused the thing that that happened to you the injury and that the court can do something about it. And you know at an abstract level that’s not crazy. We want to make sure we have a real controversy and we want to make sure that you’re for real. You’re not just coming in with some abstract disagreement because courts aren’t debating societies their courts and they want to resolve cases. That’s fair. And I think at the beginning there was a legitimate question about you know could anyone really bring a case and show that they had the kind of injuries that courts recognize and when we first filed the first emoluments clause case we filed it on behalf of a good government watchdog group Citizens for stability and ethics in Washington and people raised serious questions about whether crew had had standing. But I always thought that once hotel and restaurant industry competitors that are competing in the marketplace with Trump’s businesses directly once they got involved in the litigation it would change the conversation a lot. And so in the New York case that’s exactly what happened. We have elite restaurants and hotels that compete directly with Trump’s businesses including for diplomatic business near the United Nations and with embassies in D.C. And so every penny every dollar that goes from their businesses to Trump’s because people want to curry favor with Trump. That’s a direct loss to them. That’s the kind of injury that courts have always recognized. And so I always thought that we had a very strong theory of standing in that case and that’s exactly what the U.S. Court of Appeals for the Second Circuit in New York just held that we do indeed have standing because we’re competitors in the same marketplace in the D.C. Maryland case. We’ve got somewhat similar theories of standing because D.C. and Maryland both have an interest in tax revenue from these businesses and if business is going over the Maryland line into D.C. because Trump is enticing them there that’s an injury to them. And then the Congressional suit has an entirely distinct theory of injury that Congress actually has a role under the Constitution in consenting to emoluments and they’re deprived of that role by the president’s persistent violation of the clause. So you’ve got three distinct theories of standing all of which the courts have found actually get us in the courthouse doors in order to assert these claims.
S18: So I loved what you said when you talked about part of the purpose of these suits is to actually educate people about constitutional norms and values even though they haven’t been utilized or deployed they weren’t necessary for centuries. And I wonder what the answer is to the question partly why has this taken so long. I mean we’re talking about two years that it’s taken for the federal appeals courts to agree that these cases can go forward. And then part of the reason we wanted you on the show was to answer the question of shouldn’t these be front and center in the conversation about impeachment now in other words if part of the articles of impeachment are abuse of power there is a claim here that the president is personally enriching himself and his properties and his children’s properties. I guess I’m curious as to how the issues that you’ve been raising for two years got sidelined in a way in this very very narrow focus on what the president did in a phone call with Ukraine.
S22: Yes. So those are great questions. I mean first I I you know I have been thinking a lot about this kind of teaching function of the litigation and the importance of kind of a public constitutional conversation that what you know what matters in the law sometimes is not just what happens within the four corners of the case. And I think this is important because you know we all have a sense that with the Trump presidency there are all sorts of things happening that are totally aberrational totally different and unsettling a whole bunch of norms that we took for granted. And I think framing Trump’s corruption in terms of the emoluments clauses is one way of showing that that’s the case that it’s so aberrational that it violates these clauses that have always been in the Constitution and that have always been complied with. Right. And it goes to the heart of what we expect of public officials that they not mix their private interests with their public interests. So so it’s I think really really important to kind of give legitimacy to the concern that you have already by framing it in not just legal terms but constitutional terms. And I think you know people understand that and it’s starting to resonate now. I mean it is true that this has just been incredibly slow and I think that’s just you know that’s a feature of the legal system. It’s a feature of the fact that in the New York case we lost originally on standing and we had to get that decision reversed on appeal. All of that takes time in the Maryland case. The opposite happened. We won in the district court and we got in fact the first ruling ever by a court concluding that we we were stating a claim under the emoluments clauses but then we had a panel a conservative panel in the 4th Circuit that reversed that decision and then we had to go to the full 4th Circuit to seek reversal of that decision. So all of this ping pong takes time and I think you know there is this. We did run that risk that people would forget about this and you know everybody is exhausted by the flow of information just on the Ukraine scandal alone. I’m finding it hard to keep track of all of the revelations that keep coming out. And I think there’s a conversation now mostly within the Democratic Party about whether to go narrow or go big on impeachment. And I think at least for now it seems like Nancy Pelosi has made the decision to go narrow that the public never really understood the importance or sweep of the Russia scandal despite Mueller’s report and this Ukraine scandal is something everybody can understand. It’s relatively simple and we can kind of cabin impeachment to this. And I think there are pretty strong arguments that that’s a mistake that just like you know we’ve been talking about the way that constitutional litigation has a teaching function. I think impeachment even more so is about sparking a public constitutional conversation about what things we find acceptable and what things are completely unacceptable for a public official and for the president. And there are a whole lot of things it is not just that he held up military aid to Ukraine to pressure the Ukrainian government into investigating his opponent. That alone is an impeachable offense but it’s not the only thing. And so I think there’s a strong argument that trumps a violation of basic constitutional anti-corruption norms ought to be part of the conversation ought to be an article of impeachment. And you know I think that conversation is happening within Congress and obviously it’s both a political question and a legal question. And I’ve no idea how that’s going to go but I do think it’s important that we have that conversation because I think there are people that are persuadable. There are people in the middle who maybe aren’t paying as close attention as you and I are to all of these things and who might be persuaded that this is something that you know we should take notice of and not tolerate. And I think there are other things like child separation. There are other issues that might rise to that level. And it’s worth having a conversation about that.
S18: I’m just curious if you could craft an article of impeachment that sweeps in the kinds of self dealing and corruption that is at the heart of the emoluments cases. Could you give a go at what that language would sound like.
S21: Yeah. You know I think it would look a lot like a pared down version of our complaints in these cases which is that you know the president has openly and brazenly flouted the constitutional requirement that he not take payments from foreign governments or domestic governments at every turn. He has sought to profit from the presidency. And you know I think Congress should say that is unacceptable. We’ve never allowed that in American history and we’re not going to allow it.
S18: Now I wonder if you could answer for me the question of whether there’s any part of the cabin to the narrowly constrained Ukraine aid for oppo research scandal that is currently at the heart of the impeachment question that echoed in your mind with any parts of the emoluments or self dealing or corruption issues that you’d been pressing in your emoluments lawsuits.
S22: Yeah I mean I think the clearest example is if you look at the document that I’m not sure if it’s a transcript or the readout whatever of the call between Trump and Zelinsky Zelinsky says to Trump look he wants him to know when I was in New York last time I stayed at your hotel. So it’s you know not that long a phone call they’re discussing very important things. And Zelinsky knows that he he needs to tell Trump I stayed at your hotel. I patronized your business and not some competitor’s business. That should be chilling. I mean that’s the kind of thing that happens in kleptocracy. It’s not the kind of thing that we think happens in the United States that foreign leaders need to suck up to the president by patronizing his businesses. And you know and I think the other problem is all the things we don’t know about. I mean we know that Trump years ago sought to do business in the Ukraine sought to do business in Russia. And one problem is that we don’t know about what other business entanglements he might have with foreign governments. So I actually think this stuff is not separate and apart from what’s happening in the Ukraine and Russia scandals it’s possibly right at the heart of it is what what kind of private business entanglements does the president have with foreign leaders.
S5: What’s the relief that is being asked for in the three separate lawsuits that you’re talking about.
S21: What’s declaratory and injunctive relief. So in English that means first and foremost we want a court to declare that the president is in violation of the emoluments clauses. And you know what’s funny about the litigation is the president doesn’t have much of a defense ultimately on the merits all the litigation has been about you know how we get into court and all these procedural questions. But when it really comes down to the merits it’s pretty hard for the Justice Department to ask you that he’s not in violation of the clauses and the court in Maryland already concluded that if all the things we say in the complaint are true and they’re all based on well sourced news articles. If all those things are true he’s in violation of the clauses. So we want first and foremost we want a court to say that. And you know once a court declares that a federal official including the president is in violation of the Constitution sometimes the courts leave it up to the officials to figure out how they’re going to come into compliance. But sometimes an injunction is required in order from the court saying you know you’ve got to comply. And then I think it would be up to the president to determine how he would comply. And there are a variety of ways he could simply stop taking that business. He could actually do what previous presidents have done and completely separate or sell those businesses and I know Donald Trump Jr. has suggested the possibility that Trump will sell his hotel in Washington D.C.. So there are steps that they can take but I think in the first instance we would leave it up to the president to decide how he complies with the Constitution.
S20: You know so much of this litigation I mean you’ve made this point it’s educated. We want people to understand what corruption and self dealing look like. But there’s also a part of this which is building a better statutory system of tomorrow. Right. We want to put teeth in the emoluments clause. We want to never again have a situation where this is simply a norm and every president is expected to divest and woops one didn’t. So what does the world look like in the future. How would you if you had to ground up rebuild an anti-corruption regime for the next president who you know has a huge brand and multiple properties and interests.
S21: What does it look like when all the dust has settled and all this is over we’re going to have a lot of we’re gonna have a lot of conversations about what what the rules are for the president going forward just as we had after Watergate and after Watergate. There were a number of ethics rules that were put in place and I think you know one problem is that a lot of the ethics rules and ethics statutes don’t apply to the president of the United States. So the things that Donald Trump has been getting away with. If he were a cabinet official if he were pretty much anyone else in the government he would not be allowed to do these things. And so I think there is going to have to be serious attention paid to whether we impose the same restrictions on the president. So you know right now it’s a norm. It has been a norm that the president releases his tax returns that the president you know takes these steps to ensure that they don’t have conflicts with their assets or business interests. I think going forward we need those to not just be norms. We need those to be enforceable statutory requirements so that you know we don’t have to resort to getting courts to figure out what these generalities in the Constitution mean. We’re gonna have to put some some really clear rules in place to prevent this kind of thing from happening again.
S20: If we all survive Wow. On that cheerful note I guess the last thing I want to ask you about is when people stop you on the streets of D.C. and say Hey aren’t you that guy who brought that emoluments suit. Five hundred and seventy two years ago. What what’s your. And you’ve sort of said this but I guess I want to give you a chance to really say it. Why is this still top of mind. Front and center for you Why should we not sideline it as a thing that was super interesting two and a half years ago.
S22: But we’ve moved on because framing what Donald Trump is doing with his private businesses in terms of the Constitution is a way of saying this is not normal. We know that it’s not normal but I think with each passing thing that happens with each outrage of the day our sense of what is and isn’t normal tends to slip and you know I think that’s a real danger with any society that starts to slip away from the rule of law that starts to slip towards corruption or towards authoritarianism and framing this problem in constitutional terms shows us like this has never happened before in the whole history of the American republic. It has never happened before. The Constitution says it cannot happen and we have to take that seriously. We can’t just ignore that and look the other way. And so whether that’s through you know enforcing these norms in the courts or enforcing it through impeachment or whether it means that even Republican senators called Donald Trump up and say you can’t do that. That violates the Constitution. We have to we have to continue to press the issue we can’t just let go of it.
S5: Deepak Gupta is the founding principle of Gupta Wessler PLL sea where he specializes in Supreme Court appellate and complex litigation on behalf of plaintiffs and public interest clients. And as he says if we all survive this is going to be a great show to fight.
S23: Thank you so so much for coming on today. Thanks for having me.
S5: And that is a wrap for this episode of Atticus.
S24: Thank you so much for listening in. If you’d like to get in touch our e-mail is Amicus at Slate dot com and you can always find us at Facebook dot com slash Amicus podcast. We love getting your letters and your feedback and especially your questions and we’re going to do our best to answer them on and off the show. Today’s show was produced by Sara Berninger. Gabriel Roth is editorial director of Slate podcasts and June Thomas is senior managing producer of Slate podcast. We’ll be back with another episode of Amicus in two weeks unless you’re a Slate Plus member in which case you’ll be joining me in Miami.