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Case number 19-5237.

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Richard Blumenthal at L versus Donald J. Trump and his official capacity as President of the United States of America Appellant.

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Mr. Mupan for the Appellant.

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Ms.

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Weiger, the Appellate.

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Mr. Mupan, good morning.

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Good morning, Your Honor.

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May it please the Court.

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Members of Congress seek to assert an implied cause of action to enforce the Foreign Emoluments Clause against the President of the United States.

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That extraordinary suit should be dismissed because it suffers from multiple fundamental flaws.

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I'd like to begin this morning with Article 3 standing because the members have made several concessions that I submit effectively concede themselves out of court.

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First, the members concede that they cannot assert here any personal injury to their private rights.

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Second, they concede that if they can assert any institutional injuries to their legislative prerogatives, they can do so only if they satisfy the two-part test from this court's decision in Campbell versus Clinton that requires them to show both vote nullification and the absence of legislative remedies.

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I think that that by itself is going to be dispositive in this case because they can't meet either of the two prongs under Campbell itself.

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Moreover, this court should not apply Campbell and allow federal legislators and indeed a minority of federal legislators to assert Article 3 standing for the first time since Reigns.

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If I could start with- Let me ask you, if a president fails to inform Congress of emoluments,

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What is Congress to do?

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Well, Your Honor, as the members themselves emphasize, the default rule under the Foreign Emoluments Clause is that the acceptance of prohibited emoluments is barred absent congressional consent.

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So they don't need notification unless their injury is that they wanted to actually consent to the emoluments.

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And that's not... Well, suppose he doesn't seek consent.

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That's the question.

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What's Congress's remedy?

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There are two points to that, Your Honor.

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The first point is that's not vote nullification.

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That's the exact .

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.

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.

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No, no.

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Just stick with the question.

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The question is if .

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.

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.

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Your view is that the members lack standing and there's no cause of action, and Judge Griffith asks, well, then what's the remedy for

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and emolument clause violation.

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Presumably the framers who were worried about foreign interference in the government couldn't have imagined, at least I don't think, that

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they added a clause that couldn't be enforced in some way.

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So in your view, how can Congress protect its interests?

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So in the same exact way that this court identified in Campbell versus Clinton that the Congress could identify its interests there, it was the exact same argument that the members of Congress filed suit saying that the president was engaged in armed hostilities and under both the War Powers Act

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and the Declare War Clause, they said that he could not engage in those hostilities without first having obtained consent from Congress.

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And what this Court said, I'll skip over the vote and application point to address your question directly, what this Court said is that Congress has remedies in that circumstance.

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First and foremost, of course, they could have passed a law banning the President from engaging that conduct.

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So too here, Congress has wide power... From engaging in what conduct?

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So in this case, the argument... The Constitution already

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regulates that conduct.

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And you're now saying Congress has to do something more than the Constitution?

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That's the exact same argument that was made and rejected in Campbell.

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The statute here, there is an emolument statute and it lists what presidents can accept and can't accept.

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Again, Your Honor.

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So it has already passed legislation.

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And just as in Campbell, the argument there was there is both the War Powers Act and the Declare War Clause.

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And the plaintiff's theory of the case was that the president was not allowed to engage in armed hostilities without first receiving consent of Congress.

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And what this court said was the remedy, if the president is filing those prohibitions, was to pass a statute banning him from engaging in the conduct.

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So too here, Congress has the authority under both the ability to regulate commerce with foreign nations and the necessary and proper clause to say that, for example, to be particularly concrete about this, they could pass something that said no business in which a federal official who's covered by the Emoluments Clause has a financial interest can receive any money from foreign states.

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Okay.

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And could these plaintiffs before us today bring that case to challenge it if he refused to do that?

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If the president didn't obey it, could these plaintiffs, in this case, sue to force them to?

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I would think not, because that would just be then, as in Campbell, they said that would be the president just failing to comply with the federal statute.

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We're right back where Judge Griffith and I started, which is

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Congress, under your view, has no remedy, correct?

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Well, again.

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Other than, I suppose, impeachment, right?

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Well, again, I guess I'll say a couple things about this.

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Or is that your view, that this is, Congress can enforce this through impeachment?

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So, Congress has other remedies in addition... Would you please ask, I asked you a question, whether your view is...

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that Congress's ultimate remedy here is to impeachment.

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There happens to be some support in the debates around the Constitutional Convention for that.

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So I'm just asking you whether that's your view.

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So what I will say about that is that this court in Campbell did recognize that among the tools

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that Congress has is the ability to remove federal officials.

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I'm not going to take a position today as to whether the allegations here would rise to that level.

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That's just not presented in this case, and certainly in Campbell, for example, this court didn't actually go so far as to say whether or not the conduct there would or wouldn't be an impeachable offense.

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I would also think one of your answers would be Congress has the oversight power, but in other cases you put yourself in a box on that one, right?

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Well, I would, the other, in addition to the legislature... That was an argument you refuted or argued against before, right?

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Because that's what's going on in our Mazars case, right?

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One of the arguments supporting the subpoena there is this very emoluments clause issue.

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Well, so I would say in addition to the ability to pass legislation, which, by the way, I think should just be sufficient under Campbell, because it's exactly the same, there are other remedies among other things.

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For example, Congress could use its appropriations power.

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What about the oversight power?

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What's Congress's oversight power with respect to the Monuments Clause?

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You know, Your Honor, actually, I have to say I haven't actually thought very hard about that question in the context of this case, so I hesitate to give an answer to it.

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But again, if I could circle back to what I started with, because I think part of the difficulty here is you're asking to try to find what remedies they have without first starting with what is their actual injury.

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Because again, they have to show vote nullification.

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It's not enough to say that there's some alleged violation of the Constitution that they don't have a remedy for.

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That's particularly stark here, because remember, they're only suing over the Foreign Emoluments Clause.

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They're not suing over the Domestic Emoluments Clause.

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The Domestic Emoluments Clause is an absolute prohibition on the president receiving emoluments from either the federal government or any state.

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The reason they're not bringing that claim, as other plaintiffs in other cases have, is because Congress has no role.

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under the domestic violence laws and so they're turning everything on its head was they're saying that they can bring a suit to enforce a qualified prohibition when they couldn't even bring a suit to enforce an absolute prohibition and i think what that shows you is two things this focus on whether there is some ready ready that congress can have is just misguided and to have to focus on whether there is actually vote nullification

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within the meaning of cases like Campbell and Rains and Bethune Hill.

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And what every one of those cases says is that vote nullification is a question about whether there's a dispute about whether the legislature's votes have been, there's a question procedurally of what the legislature has done.

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Those cases all reject the notion that you would also find vote nullification, not when there's no dispute about what the legislature has done, but with respect to how the executive has responded in response to what the legislature has concededly done.

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Take, for example, in Coleman versus Miller, the question there was what had the Kansas Senate done?

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Had they ratified the constitutional amendment or had they not ratified the constitutional amendment?

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Take, for example, Arizona state legislature.

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The question was who is the state legislature?

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Is it the normal Arizona legislature or is it the people of Arizona acting through the commission?

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That's what vote nullification is.

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Every one of those cases, there's essentially an intra-branch,

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intramural dispute within the legislature as to what they had done, had a vote been cast or had it not been cast.

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That's not what's going on here.

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Everyone knows that Congress has not authorized the president to receive otherwise prohibited emoluments.

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The only question in the case is

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is the president nevertheless acting lawfully because these aren't actually prohibited emoluments that he needs consent for.

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That is exactly, exactly the same dynamic that was in Campbell.

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If you just substitute military action for the emoluments, it's exactly the same.

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The difference here is that Congress doesn't know what's happening, right?

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Again, Your Honor, the nature of the allegations is that there are things taking place that the cosmic crunch doesn't know about.

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That would only make sense if what they were saying is that they want to actually consent to some emoluments.

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If only they knew, they would actually vote to approve them.

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If they hadn't said that, I'd be very surprised if council stands up here today and says that the reason they brought the suit is they really want to consent to the president receiving some emoluments, but they just don't know.

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Does it have to be that?

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Couldn't it be they want to know about it so they can consider it?

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Again, the default rule is acceptance of prohibited emoluments is not permitted absent congressional consent.

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So if all they're worried about is that there might be a violation, they don't have to do anything.

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If they just sit silent as they have, there is no consent.

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They want to play a role.

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The Constitution gives them a role.

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That's right.

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They want to play a role.

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That's my point.

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I'm still not clear what you think their role is.

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That's what's so ironic about their position.

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The only role that the Constitution gives Congress with respect to the Foreign Emoluments Clause is to allow them

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That's the difference between the Foreign Emoluments Clause and the Domestic Emoluments Clause.

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The Domestic Emoluments Clause is a flat prohibition.

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Congress can't even consent to them.

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The Foreign Emoluments Clause, Congress can consent to them.

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So I would understand if their argument... Is it your understanding of the Foreign Clause that Congress can also reject them once they're aware of them?

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They don't have to reject them is my point.

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The Constitution already rejects them, right?

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The Constitution already prohibits the acceptance of emoluments absent congressional consent.

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So unless they're going to stand up here and say that what they really want to do is approve them, and that's why they're so injured, their argument just doesn't make any sense.

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If I could take a step back, so I think I've now hit both of the two reasons why they can't even satisfy Campbell versus Clinton on its own terms.

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They don't have vote nullification and they do have legislative remedies.

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But of course, to take a step back, the Supreme Court has repeatedly admonished both in footnote eight of Reigns versus Byrd and footnote 12 of Arizona State Legislature that it would pose serious separation of powers concerns to extend the sort of Coleman vote nullification theory to federal legislators.

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uh... and i i think that's exemplified by the last three or four pages of an of the rain first bird opinion where the court goes on at some length to describe how it there's a long history of inter-branch disputes between the executive branch of the legislative branch and they've never been resolved through lawsuits between the branches they've always been resolved only through

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if those disputes end up implicating the rights of private parties and private parties have a lawsuit.

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And I think that that's very important here, that this court should certainly not extend Campbell, and for the first time since Reigns, allow this sort of inter-branch dispute in the face of the unbroken history of not allowing such disputes.

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The last point that we'll make on standing is that's especially true because this isn't even Congress.

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It's not even a house of Congress.

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This is a minority of members of both chambers.

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And we know both from Coleman and from Bethune Hill that they should not be able, if anyone can assert an institutional injury, it's got to be the body that has the institutional right.

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And under the Foreign Ammonians Clause, the only entity that has any right at all here would be Congress as a whole.

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Certainly not individual members.

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And so under Bethune Hill and under Reigns,

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They can sue even if everything else I said thus far you don't agree with at a minimum.

[00:13:32] Speaker 03:
That's true If you look at giving what you say in your brief, even if they did outstanding your view is there's no cause of action, correct?

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That's true as well your honor and I'm happy to address that if you want I actually have a question or two about the merits I just want to ask you a couple of questions about

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about your definition of what is an emolument.

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Your position is that it's a payment in exchange for services, right?

[00:14:03] Speaker 00:
I think it's profit arising from officer employment, Your Honor.

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Yeah, officer employment.

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So in paragraph 57 of the plaintiff's complaint, we allege, and this is a motion to dismiss, we have to accept this as true.

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They say that the Saudi government spent

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$275,000 at Trump hotels and that that money was for lodging for Saudi officials who were lobbying to repeal legislation that allowed American victims of 9-11 to sue the Saudi government.

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Now that's not an emolument under your theory, right?

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Right.

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Okay.

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But yet if the Saudi government gave the president an expensive gift, that would be correct?

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Yep.

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So what sense does that make?

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Why, given the extensive history at the Constitutional Convention, that the framers were deeply concerned about foreign interference in the new government, why would we interpret, why would a court interpret the emolument clause that narrowly?

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Why would we do that?

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So a couple things.

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The first is no law pursues its purpose at all costs, and the textual limits in a law are part of its purposes no less.

[00:15:36] Speaker 03:
OK, what's the answer to my question?

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With all respect, Your Honor, I think that is part of the answer.

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You're assuming that this is a provision that's meant to stop any type of enrichment of the president or foreign officials.

[00:15:49] Speaker 03:
No, don't misstate my question.

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My question is based on the extensive evidence

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during the Constitutional Convention that the framers were worried about foreign interference and influence in the new government.

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That's one of the reasons why they were worried.

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They were worried about it in a specific type of way.

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They were worried about it in terms of, as they listed out, presence, emoluments, office, and title.

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They weren't worried.

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They didn't say any sort of way in which the foreign government could have any sort of influence over a federal official.

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For example, they didn't, you know, prohibit foreign governments from giving money to a federal official's family.

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It says any president, a monument officer, and title of any kind whatever.

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I don't know that language like that appears anywhere else in the Constitution.

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Of any kind whatever.

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That's true, but it still has to be in a monument, just like in the Supreme Court's decision in Small, where it said any court, and they said that that doesn't mean foreign courts, even if it had said any court of any kind, whatever, the presumption against extraterritoriality would have still told you that that had to be limited to domestic courts, because it wasn't clear enough to go, as the court has said in cases like Small and Freeman, any doesn't change the meaning of the word it modifies.

[00:17:05] Speaker 03:
The members brief, they cite a 1993 OLC opinion which involved members of the U.S.

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Administrative Conference who had been partners in law firms.

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They wanted to know whether partnership distributions from their law firms were emoluments in the court, and the OLC said yes.

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Look, Your Honor, I think that that is the closest they come.

[00:17:38] Speaker 03:
But that's right on point.

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I don't think it's right on point, Your Honor.

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Why is that?

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Because it involved lawyers and given the nature of a legal relationship and duties of ethics.

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The members who asked for the question did not have a client.

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They have done no work for a foreign government.

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That's my point, Your Honor.

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The nature of legal ethics is when you're in a partnership, even if you're not the precise lawyer working for one of your partner's clients, you still have duties to them.

[00:18:06] Speaker 00:
But wait, I don't understand that.

[00:18:08] Speaker 03:
But the OLC's opinion was

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that these funds that came to the firm for the work of other partners were attributed to them.

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What's that got to do with the canons of that code of ethics?

[00:18:19] Speaker 00:
Again, Your Honor, I agree that that's the closest they have.

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But let me mention a couple of things that if you take that view of the world, here's what follows.

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So first what follows is on their theory, let's not forget that the Foreign Emoluments Clause, it doesn't, it's not limited to the president.

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It applies to all federal, all officers holding an office of profit or trust under the United States.

[00:18:39] Speaker 00:
So on their theory,

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every federal official at the founding.

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who had a private business, and that was quite common at the time.

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We didn't have an overarching government bureaucracy and salaried people had side businesses.

[00:18:52] Speaker 00:
Every single one of them, if you had, for example, an inn, you would be required to ask every person who came to your inn, by the way, are you here from a foreign government, on a foreign government expense account?

[00:19:04] Speaker 00:
And if you are, you have to go away.

[00:19:06] Speaker 00:
That seems utterly implausible.

[00:19:08] Speaker 00:
Even more implausible is in 1810,

[00:19:12] Speaker 03:
There's no court decisions on that, right?

[00:19:16] Speaker 03:
I mean, we don't know what they thought about that.

[00:19:18] Speaker 00:
No, look, that's true.

[00:19:20] Speaker 00:
That's true.

[00:19:21] Speaker 00:
But in 1810, Congress overwhelmingly passed, and nearly three-quarters of the states passed, a constitutional amendment that would have extended the Foreign Immigration Clause to all citizens on pain of losing citizenship.

[00:19:37] Speaker 00:
So on their theory, almost the entire country, we came this close to having a constitutional amendment that would have said that if you were an innkeeper and you let a foreign diplomat stay at your inn, you lost your citizenship.

[00:19:50] Speaker 00:
On their theory, we almost passed a constitutional amendment that said foreign diplomats couldn't buy food, couldn't buy lodging, couldn't buy clothing, couldn't buy any necessities, which I assume would mean you couldn't actually be a foreign diplomat in the United States.

[00:20:03] Speaker 00:
Again, overwhelmingly passed by Congress, passed by nearly three quarters of states.

[00:20:08] Speaker 00:
It's just not plausible that anyone understood the term emolument to have the sweeping scope they say it does.

[00:20:15] Speaker 00:
Let's fast forward to today, Your Honor.

[00:20:18] Speaker 00:
Take, for example, the interest on federal bonds and local bonds.

[00:20:24] Speaker 00:
That would clearly violate the domestic emoluments clause on their theory.

[00:20:28] Speaker 00:
It is profit coming directly from the federal government or the state governments.

[00:20:34] Speaker 00:
But myriad presidents have had bonds in their portfolios.

[00:20:38] Speaker 03:
Just tell me once again, you say the OLC opinion is the closest they have.

[00:20:43] Speaker 03:
If we were writing an opinion distinguishing that, what would we say?

[00:20:47] Speaker 03:
How would we say that doesn't

[00:20:50] Speaker 00:
So what I would say is two things.

[00:20:53] Speaker 00:
Proposition one is that the meaning of the term malumit is profit from office or employment.

[00:20:59] Speaker 03:
Is what?

[00:20:59] Speaker 00:
Is profit from office or employment.

[00:21:02] Speaker 03:
And proposition two would be... But that's not what the OLC opinion says.

[00:21:06] Speaker 03:
So you're saying the OLC opinion is wrong.

[00:21:09] Speaker 00:
Is that what we'd say?

[00:21:10] Speaker 00:
Well, no.

[00:21:10] Speaker 00:
What I was going to say is Proposition 2 is in the context of a law firm partnership, you can view any partner as being employed by any firm client.

[00:21:23] Speaker 00:
That is the best way, I think, to understand the OLC opinion in light of all the historical stuff I just said.

[00:21:30] Speaker 03:
You may know the details of it better than I do.

[00:21:32] Speaker 03:
I don't have it in front of me.

[00:21:33] Speaker 03:
But is that the reason the OLC gave it?

[00:21:35] Speaker 00:
No.

[00:21:35] Speaker 00:
To be honest, no.

[00:21:36] Speaker 00:
It doesn't say that, Your Honor.

[00:21:38] Speaker 00:
But again, I don't think you can construe it.

[00:21:41] Speaker 00:
If you construe it the more broad way that Your Honor suggested, it would have all the consequences I just said.

[00:21:47] Speaker 00:
It's just utterly implausible to read that term to have those consequences.

[00:21:52] Speaker 00:
to say that virtually every president recently has probably violated the domestic emoluments clause merely because they have treasury bills in their portfolio or municipal bonds in their portfolio.

[00:22:04] Speaker 00:
That's just not the ordinary meaning or understanding of the term emoluments.

[00:22:12] Speaker 02:
I don't have a question.

[00:22:13] Speaker 02:
All right.

[00:22:13] Speaker 02:
We'll give you some time in response.

[00:22:15] Speaker 02:
Ms.

[00:22:16] Speaker 02:
Wadra.

[00:22:17] Speaker 02:
Good morning.

[00:22:20] Speaker 06:
Good morning, and may it please the court.

[00:22:23] Speaker 06:
I'd like to pick up on the colloquy that Judge Tatel had with my friend on the other side.

[00:22:28] Speaker 06:
The Foreign Emoluments Clause is not a constitutional cabinet of curiosities intended to prevent foreign influence when it comes through a gift of elephant tusks from the King of Siam to President Abraham Lincoln, but throwing open the door to potential foreign corruption

[00:22:45] Speaker 06:
when that influence is a conduit of vast international business relationships.

[00:22:51] Speaker 06:
That simply does not make sense when you think of the important anti-corruption purposes that drove the founders in the first place to put the Foreign Emoluments Clause into the Constitution.

[00:23:03] Speaker 06:
From the remedies that my friend suggests, you might think that the Foreign Emoluments Clause was written to allow any emolument unless Congress can first ferret out that emolument.

[00:23:15] Speaker 06:
and then affirmatively pass legislation to prohibit it.

[00:23:19] Speaker 04:
Before we get to that, I'd like you to address the standing issue.

[00:23:25] Speaker 04:
You are not here representing the House of Representatives, are you?

[00:23:29] Speaker 06:
Your Honor, we represent individual members of Congress.

[00:23:31] Speaker 04:
You are not here representing the House of Representatives, correct?

[00:23:35] Speaker 06:
Correct.

[00:23:35] Speaker 04:
We represent individual members.

[00:23:39] Speaker 04:
You're not here representing the Senate, the United States.

[00:23:42] Speaker 06:
You're absolutely correct.

[00:23:43] Speaker 04:
There are regulations and statutes and regulations and procedures in both those bodies by which they determine whether they will appear in court to their lawyers.

[00:23:55] Speaker 04:
Isn't that correct?

[00:23:56] Speaker 04:
Yes.

[00:23:56] Speaker 04:
And you're not here under that authority.

[00:23:58] Speaker 06:
We are not.

[00:23:59] Speaker 04:
Why does that not answer the standing issue based on the precedent right now?

[00:24:05] Speaker 06:
Your Honor, because this case is like Coleman, where it is an institutional injury, not the personal type of injury that we saw.

[00:24:11] Speaker 04:
You have to say it's like Coleman, because if we're going to follow our own precedent, if we're going to follow Reigns, that's the only type of standing a legislature can have, right?

[00:24:22] Speaker 04:
A legislature, it invokes institutional interest.

[00:24:26] Speaker 04:
You have to fit within Coleman, right?

[00:24:28] Speaker 06:
Your Honor, yes, we do fit within Coleman, within Rains, within the way that this court has... How do you fit within Coleman?

[00:24:34] Speaker 06:
So, Your Honor, I think if we look at the way that this court has described vote nullification in the Campbell case, with the executive treating a vote that did not pass as if it had or vice versa.

[00:24:45] Speaker 04:
Sorry to interrupt you.

[00:24:45] Speaker 04:
Let's look at the way Rains describes Coleman.

[00:24:49] Speaker 04:
Absolutely.

[00:24:50] Speaker 04:
Would you start there and then go to ours?

[00:24:52] Speaker 06:
Yes.

[00:24:53] Speaker 06:
So, Your Honor, in Rains, they explained that

[00:24:58] Speaker 06:
Vote nullification.

[00:25:00] Speaker 06:
involves not giving full effect to the particular votes of legislators.

[00:25:05] Speaker 06:
And in that case, it was distinct because their votes were given full effect with respect to the Line Item Veto Act.

[00:25:11] Speaker 06:
They simply lost that vote.

[00:25:13] Speaker 06:
But here, we are much more like Coleman because the individual members that I represent have been completely denied a vote on the vote to which they are explicitly entitled under the Foreign Emoluments Clause.

[00:25:28] Speaker 06:
And that is a vote

[00:25:29] Speaker 06:
before the fact, on the record, binding the president before he accepts any form of money.

[00:25:34] Speaker 04:
I thought Reigns interpreted Coleman to say very unique facts there, right?

[00:25:40] Speaker 04:
Yes.

[00:25:40] Speaker 04:
You had, because of the vote nullification, the outcome was different, right?

[00:25:45] Speaker 04:
It was 50-50 in the Kansas legislature.

[00:25:48] Speaker 04:
The lieutenant governor cast the deciding vote.

[00:25:51] Speaker 04:
The question was whether the lieutenant governor had the authority to do that or not.

[00:25:56] Speaker 04:
And if he had the authority to do that, which apparently the Supreme Court said he didn't, then the votes of 50 of the state senators were completely nullified.

[00:26:06] Speaker 04:
How do you have anything like that here?

[00:26:07] Speaker 04:
Chief Justice Rehnquist went to great lengths to say in Coleman the key fact was that you had a number of legislators whose votes would have swung the outcome in a different fashion.

[00:26:20] Speaker 04:
You don't have anything like that here.

[00:26:22] Speaker 06:
Your honor, I would respectfully disagree, and I think that, you know, if you look at the ways in which the individual members' votes are nullified here, you can see how they're nullified in two ways.

[00:26:31] Speaker 06:
One, the default rule set by the foreign emoluments clause says that there shall be no acceptance of foreign emoluments

[00:26:38] Speaker 06:
unless Congress consents.

[00:26:40] Speaker 06:
The president is acting as if Congress has given its consent by continuing to accept foreign emoluments.

[00:26:46] Speaker 06:
Also in Reigns, the court noted that part of the reason why the Reigns plaintiffs did not have standing is because their votes would not be nullified in the future.

[00:26:54] Speaker 06:
And you can see that again come up in the Arizona State Legislature case.

[00:26:57] Speaker 06:
Here also, the votes of the individual members are nullified in the future.

[00:27:02] Speaker 06:
The president, because he does not believe that he is accepting prohibited emoluments, is clear that he will not come to Congress to get their consent before accepting them.

[00:27:11] Speaker 06:
Therefore, both with respect to the ongoing violations and in the future, there is no vote.

[00:27:16] Speaker 04:
As I read what Chief Justice Rehnquist was saying is that vote nullification wasn't simply

[00:27:20] Speaker 04:
the idea that an individual legislator didn't have a chance to act on a matter, but that the group nullification made a difference.

[00:27:30] Speaker 04:
There was a majority that had voted differently.

[00:27:34] Speaker 04:
That's what I'm saying, you don't have that here.

[00:27:36] Speaker 06:
Oh, yes, I see, Your Honor.

[00:27:37] Speaker 06:
So I think that that's relevant in Coleman because of the particular species of vote nullification at issue in that case, where there was a vote that was being specifically overridden.

[00:27:46] Speaker 06:
So it mattered in that case what the result would have been.

[00:27:50] Speaker 06:
But in this case, and I want to get to the point.

[00:27:53] Speaker 04:
And didn't Chief Justice Winkler say that was a critical part of the decision?

[00:27:57] Speaker 04:
That's part of what vote nullification meant.

[00:28:00] Speaker 04:
It changed the outcome.

[00:28:02] Speaker 06:
In Coleman, yes, because of that specific variety of vote notification, overriding a past vote.

[00:28:09] Speaker 06:
But here, where we're talking about denying the vote completely.

[00:28:12] Speaker 04:
Chief Justice Rehnquist was using that to describe in Reins why there wasn't any standing.

[00:28:18] Speaker 04:
He wasn't just confining it to Coleman.

[00:28:20] Speaker 04:
He was saying, this is the principle.

[00:28:22] Speaker 06:
So Your Honor, they also said in Reigns that the Act would not, quote, nullify their votes in the future.

[00:28:29] Speaker 06:
And that is what we were talking about here as well, because the Foreign Emoluments Clause guarantees to individual legislators a specific vote.

[00:28:38] Speaker 06:
And it is that vote that is being completely

[00:28:43] Speaker 06:
devoid of effect.

[00:28:45] Speaker 06:
There is no vote being allowed that is explicitly entitled to these members under the Constitution.

[00:28:50] Speaker 06:
The default rule is that Congress, by inaction, because of the default rule of the foreign emoluments clause,

[00:28:57] Speaker 06:
can in that way deny consent.

[00:29:00] Speaker 06:
And this is important to the operation of the rule.

[00:29:03] Speaker 06:
And my friend on the other side would turn the clause on its head by essentially shifting the default rule and saying foreign emoluments can be accepted unless Congress says they can't.

[00:29:13] Speaker 06:
That's not the way the Constitution is written.

[00:29:15] Speaker 03:
Before you go to the merits though, this is an interesting debate you're having about what Reins and Coleman means, but I want to read you a sentence.

[00:29:24] Speaker 03:
from Virginia House of Delegates, which is the most recent of these cases, and this is Justice Ginsburg.

[00:29:33] Speaker 03:
Here's what she says, just as individual members lack standing to assert the institutional interests of a legislature, just as individual members lack standing to assert the institutional interests of a legislature,

[00:29:51] Speaker 03:
A single house of a bicameral legislature lacks capacity to assert interest belonging to the legislature.

[00:30:00] Speaker 03:
In other words, she said there's a mismatch in that case between the body seeking to litigate and the body to which the relevant constitutional interest protects.

[00:30:13] Speaker 03:
And we are, this is the Constitution calls us an inferior court.

[00:30:19] Speaker 03:
Why aren't we just completely bound by language like that in this case?

[00:30:24] Speaker 03:
What that says to me is that individual members

[00:30:29] Speaker 03:
of a legislature cannot sue to represent the interests of the legislature as a whole.

[00:30:35] Speaker 03:
And in this case, the Constitution gives the interest to Congress, not the individual members.

[00:30:41] Speaker 03:
Even if I was, even if I thought your interpretation of Reigns and Coleman was correct, what do we do with this language?

[00:30:50] Speaker 06:
So, Your Honor, that is a very critical point.

[00:30:54] Speaker 03:
Right, that's why I asked.

[00:30:56] Speaker 06:
Good question.

[00:30:57] Speaker 06:
We completely agree with you that when you're talking about a diminishment of legislative power in some way.

[00:31:05] Speaker 03:
Don't talk about diminishment.

[00:31:06] Speaker 03:
Just talk about this language.

[00:31:09] Speaker 03:
We have so many cases that say this is the kind of language in a Supreme Court case that binds, that we as a lower federal court

[00:31:20] Speaker 03:
I mean, your arguments about Reigns and Coleman are interesting, but given what the court said in the Virginia case, why aren't I right to think you better take your argument to the Supreme Court and ask them what this sentence, what the implications of this sentence are for Reigns and Coleman?

[00:31:43] Speaker 03:
Do you see my point?

[00:31:45] Speaker 03:
I absolutely do.

[00:31:45] Speaker 03:
This is just a question from the perspective of this inferior coin.

[00:31:50] Speaker 03:
That's it.

[00:31:51] Speaker 03:
That's my question.

[00:31:52] Speaker 06:
I think that that language would be much tougher for us if we were seeking to vindicate any other clause other than the foreign emoluments clause because it's specifically

[00:32:03] Speaker 06:
contemplates a specific vote for members of Congress before the president can do something.

[00:32:08] Speaker 03:
But it gives it to Congress.

[00:32:10] Speaker 06:
The consent of Congress, and Congress gives its consent through the votes of its individual members, and I just want to say... But you're not Congress.

[00:32:16] Speaker 04:
You're not here representing Congress.

[00:32:18] Speaker 06:
We are here representing the individual members who will give their consent or not.

[00:32:21] Speaker 04:
And as Judge Hayden pointed out, the Supreme Court has told us, we're only supposed to listen to you on things like this if you're representing Congress.

[00:32:28] Speaker 04:
So go back,

[00:32:30] Speaker 04:
get get a resolution from the house and senate they do it all the time

[00:32:35] Speaker 04:
and then come and then you can speak for Congress, but until then you can't.

[00:32:38] Speaker 04:
I think that's the thrust of the argument.

[00:32:40] Speaker 06:
Your honor, I don't think that's true when you raise the particular type of vote nullification claim that we are raising here and that was raised in Coleman.

[00:32:48] Speaker 06:
And the reason that it's important here is because what we are seeking is a vote.

[00:32:53] Speaker 04:
Is that what Justice Ginsburg said, that her reasoning and the court's reasoning applied simply to that set of facts?

[00:33:00] Speaker 06:
Your honor, not in Bethune Hill, that wasn't a boat nullification case.

[00:33:04] Speaker 04:
That was a completely different type of... It's a more fundamental issue here, and that is you're not here representing Congress, so you can't seek to protect the institutional interest of Congress.

[00:33:17] Speaker 04:
Tell Congress to come here, and we can listen to them.

[00:33:20] Speaker 06:
But this court has been very careful to preserve an admittedly narrow window, but not an impenetrable window of legislator standing for an individual asserting an institutional injury when there has been complete vote nullification and there are no adequate legislative remedies.

[00:33:39] Speaker 06:
And that is exactly the case we have here.

[00:33:41] Speaker 06:
We are seeking, as your honor said, a vote that allows Congress to consider

[00:33:46] Speaker 06:
and maybe consent or not consent to foreign emoluments before they are accepted.

[00:33:52] Speaker 06:
That is the rule that is explicitly set down in the Constitution.

[00:33:55] Speaker 06:
And here I think we have, there are two ways in which the foreign emoluments clause is unique, relevant to this case.

[00:34:03] Speaker 04:
First... Why isn't this done through oversight?

[00:34:05] Speaker 04:
Why isn't this better done through vigorous oversight?

[00:34:08] Speaker 06:
Your Honor, first of all, that's not the way that the Foreign Emoluments Clause works.

[00:34:11] Speaker 06:
It sets this very broad and sweeping default rule that no emoluments shall be accepted unless Congress consents.

[00:34:21] Speaker 06:
So first of all, that would be rewriting the Foreign Emoluments Clause.

[00:34:24] Speaker 06:
Secondly, my friends say that in other litigation that oversight over the Foreign Emoluments Clause is

[00:34:30] Speaker 06:
is illegitimate, so putting that also to the side.

[00:34:34] Speaker 06:
But I think also here, importantly, the way that the clause is supposed to work, the way that it achieves its anti-corruption aims, is by having, at the time of the founding this was incredibly important, the person who wants to accept foreign rewards.

[00:34:49] Speaker 06:
Lay them before Congress ensure that there's accountability and transparency and thus remove in many ways the potential for corruption by putting them before Congress here We have the very unique situation of the president accepting foreign emoluments So I think it's important to note that while there were adequate legislative remedies in Campbell and Chenoweth that is not the case here because we're talking about a

[00:35:14] Speaker 06:
a constitutional violation achieved through private conduct, not using government funds, so the power of the purse is not available in the way that it normally would be.

[00:35:24] Speaker 06:
In addition, any legislative remedy, such as the ones that my friend on the other side has put forth, because they affect the president's own financial stake,

[00:35:34] Speaker 06:
in his constitutional violation would require him to essentially tie his own hands or would require super majorities in Congress to pass veto-proof legislation.

[00:35:45] Speaker 06:
And that would essentially twist the Constitution to a degree that the Foreign Emoluments Clause becomes unrecognizable.

[00:35:52] Speaker 06:
So, Your Honor, I just want to make sure that we get back to the vote nullification claim because I think that we both agree that the two-part test of Campbell applies here.

[00:36:02] Speaker 06:
And the key language in Campbell when it's describing the vote nullification basis for standing that remains good law after the Supreme Court cases that we discussed, it has been carefully preserved, is when a vote is treated as if it has not passed or vice versa.

[00:36:20] Speaker 06:
The President, by accepting foreign emoluments when Congress has not consented,

[00:36:24] Speaker 06:
is treating it as if Congress has voted, has voted to consent, when the individual members I represent have not had that opportunity to vote.

[00:36:35] Speaker 03:
I hear what you're saying, and I'm sorry to obsess about this sentence from Justice Ginsburg, but I still haven't heard from you how we deal with that in this case.

[00:36:50] Speaker 03:
It says, the way I read that, it says,

[00:36:54] Speaker 03:
It says, an individual member lacks standing to assert the interests of a legislature.

[00:37:03] Speaker 03:
That's what that says.

[00:37:04] Speaker 03:
An individual member lacks standing to assert the interests of a legislature.

[00:37:09] Speaker 03:
And the foreign emoluments clause says that they can't accept emoluments without the consent of Congress.

[00:37:19] Speaker 03:
Congress only speaks.

[00:37:21] Speaker 03:
through a vote of a majority of both houses of Congress.

[00:37:28] Speaker 03:
And this case is, in that sense, is even easier than House of Delegates, because at least in that case, you had one house suing.

[00:37:38] Speaker 03:
And that wasn't enough.

[00:37:39] Speaker 03:
Here, you don't even have one house.

[00:37:41] Speaker 03:
So I still need an explanation of how the institutional interests of the legislature is different than in any of these other cases.

[00:37:50] Speaker 03:
What's your best argument about that?

[00:37:52] Speaker 06:
Your honor, so I think that they are distinguishable because in Bethune Hill and in Reines, there was a diminishment of legislative authority that is different from a specific vote explicitly guaranteed in the Constitution being denied to the individual members.

[00:38:10] Speaker 06:
And the way that Congress expresses its consent, as the district court correctly held, is through the votes of each of the individual members.

[00:38:19] Speaker 06:
We are not here because there is some general diminishment of authority to legislate on the issue of emoluments.

[00:38:26] Speaker 06:
I agree with you that in that case, it would be something that might be better pressed by the bodies themselves.

[00:38:33] Speaker 06:
Of course, then you might have some other issues of adequate legislative remedies.

[00:38:36] Speaker 06:
So I want to emphasize just how narrow

[00:38:39] Speaker 06:
the rule we are seeking here is, it falls in line with the way that the court described vote nullification in Campbell, a specific vote to which individual members are entitled that they are being denied completely, that's being treated as if it passed when it hasn't,

[00:38:56] Speaker 06:
or will be nullified in the future.

[00:38:59] Speaker 06:
That's a rule that has been reaffirmed by the Supreme Court in Arizona State Legislature and the court did not overrule it.

[00:39:06] Speaker 04:
So you're saying there's a category of legislative standing that falls outside of Justice Ginsburg's

[00:39:13] Speaker 06:
language absolutely absolutely your honor this court in rains did not say that no individual member could not press an institutional injury if they did that opinion would have been much shorter and this court's opinions in campbell and chenoweth would have been much shorter if that were the rule but it is not the rule the courts while narrowing they have narrowed legislators standing we absolutely would agree with that but they have been careful this court and the supreme court have been careful to preserve

[00:39:40] Speaker 06:
the situation of complete vote nullification where there are no adequate legislative remedies and that is exactly the situation we find ourselves in here.

[00:39:51] Speaker 06:
We urge the court to affirm the district court and allow this case to proceed.

[00:40:03] Speaker 00:
I'll try to squeeze four quick points in the two minutes.

[00:40:06] Speaker 00:
First, Judge Tatel, Judge Griffith, I think the narrowest way to resolve this case is the point about the mismatch.

[00:40:11] Speaker 00:
Bethune Hill and Reigns both make clear that at a minimum, if you're going to assert an institutional injury, you have to be the body that has the institutional right.

[00:40:19] Speaker 00:
I think the language that you focused on in Reigns is actually quite clear about this.

[00:40:23] Speaker 00:
They said that it was a block of voters in

[00:40:29] Speaker 00:
Coleman that were suing, they were basically saying they were suing as the Kansas Senate because for purposes of that issue, they were the Kansas Senate.

[00:40:37] Speaker 00:
Point two, once you realize that, you realize why it's a big deal and why it's a problem to extend that theory to federal legislators because it's one thing for the Supreme Court to say the Kansas Senate can bring a lawsuit.

[00:40:50] Speaker 00:
It's another thing to say Congress the United States can bring a lawsuit against the executive.

[00:40:54] Speaker 00:
That's the whole history that range talks about that it's not permissible that that's always been done other than through the courts point three is even if you focus on vote nullification.

[00:41:06] Speaker 00:
I didn't hear any answer today as to why this is any different than Campbell.

[00:41:10] Speaker 00:
In Campbell, President Clinton against armed hostilities, the plaintiffs there argued that both the Declare War Clause and the War Powers Resolution required consent of Congress before he can engage in those hostilities, and this court said that was neither a nullification and there were legislative remedies.

[00:41:28] Speaker 00:
It was the same exact thing.

[00:41:29] Speaker 00:
They had the ability to consent, and the president was saying he was engaged in conduct, he didn't

[00:41:34] Speaker 04:
Here's what troubles me about your position.

[00:41:37] Speaker 04:
It seems to me that if you were right about standing, and I'm not saying you are, but if you were right about standing, it does raise the question of what is the remedy for alleged violations of the emoluments clause?

[00:41:52] Speaker 04:
It seems to me one easy answer to that is congressional oversight, but you're resisting that in other cases.

[00:41:59] Speaker 04:
In other cases you're saying congressional oversight is inappropriate, so I'm just wondering what

[00:42:04] Speaker 04:
What is Congress to do in a case where it has reasons to think the emoluments clause is being violated?

[00:42:12] Speaker 00:
So I'll say a couple of different things about that, Your Honor.

[00:42:15] Speaker 00:
First, again, the domestic emoluments clause presents the same problem, right?

[00:42:20] Speaker 00:
The domestic emoluments clause regulates the president.

[00:42:22] Speaker 00:
Even they concede that they don't have standing to bring that suit.

[00:42:26] Speaker 00:
That's why their claim is limited to foreign emoluments, not domestic emoluments.

[00:42:29] Speaker 00:
So you know that the fact that there may not be a remedy that Congress could bring a lawsuit over isn't somehow dispositive.

[00:42:36] Speaker 00:
In terms of what the remedies are, I think, again, Congress can pass a law that just like in Campbell, Congress could have passed a statute that said that President Clinton stop engaging in armed hostilities.

[00:42:48] Speaker 03:
But in this case, how could Congress pass a law without finding out about

[00:42:53] Speaker 03:
what the president is doing with respect to emoluments.

[00:42:56] Speaker 00:
They could pass a statute that says exactly the same.

[00:42:59] Speaker 00:
Could I finish my question?

[00:43:01] Speaker 03:
Yes.

[00:43:02] Speaker 03:
Congress can't act or shouldn't act without evidence, presumably to be able to pass an emolument clause, it would have to understand exactly what's happening.

[00:43:13] Speaker 03:
To pick up a point Judge Griffith made, the Justice Department's position in Trump versus Mazers is that subpoenas like that are invalid.

[00:43:22] Speaker 00:
Your Honor, there is no impediment to Congress passing a law that says any federal official who's covered by the Emoluments Clause, if they have a financial interest in a business, that business can't do business with foreign states.

[00:43:36] Speaker 03:
That's their legal position.

[00:43:38] Speaker 03:
They could put it in a law.

[00:43:39] Speaker 03:
But without an investigation, right?

[00:43:42] Speaker 00:
Why, I guess I don't under... If Congress as a whole... No, just stick with my question.

[00:43:48] Speaker 03:
I'm asking you how, if Congress thought that it would be helpful.

[00:43:52] Speaker 03:
before it passed that legislation to have a hearing and investigate, to summon witnesses and issue subpoenas

[00:44:03] Speaker 03:
It couldn't do that under the Justice Department's view.

[00:44:05] Speaker 03:
It would just have to pass the law.

[00:44:07] Speaker 03:
Is that right?

[00:44:07] Speaker 00:
Your Honor, we haven't briefed any of the issues about oversight in this case.

[00:44:12] Speaker 03:
I'm asking you based on this, because this is a position the Justice Department of the United States is taking in Trump versus Mazers.

[00:44:18] Speaker 00:
Your Honor, the oversight issues are complicated.

[00:44:20] Speaker 00:
I hesitate to answer a question here when it hasn't been briefed yet.

[00:44:23] Speaker 03:
It is not complicated to understand the position of the Justice Department in Trump versus Mazers.

[00:44:29] Speaker 03:
They just rearticulate them.

[00:44:30] Speaker 00:
Your Honor.

[00:44:31] Speaker 00:
Yeah.

[00:44:32] Speaker 00:
What I will say is they purport to be, they're members of Congress.

[00:44:37] Speaker 00:
If Congress as a whole actually agreed with them that it is a problem for someone who is covered by the Emoluments Clause to have a business where foreign governments are patronizing it, they can pass it.

[00:44:50] Speaker 03:
You don't need to investigate.

[00:44:51] Speaker 03:
I'll just try once more, okay?

[00:44:52] Speaker 03:
If you don't want to answer the question, that's fine.

[00:44:55] Speaker 03:
But as I understand your point, given the position of the Department of Justice in other litigation, Congress would have to pass that law without having an investigative hearing, correct?

[00:45:06] Speaker 00:
I'm not sure.

[00:45:09] Speaker 00:
The answer is really, and honestly, I'm not sure.

[00:45:11] Speaker 00:
I haven't thought about it in the context of this case.

[00:45:14] Speaker 00:
The fourth and last point I will make is on terms of being narrow and it ties to the first point.

[00:45:20] Speaker 00:
Another way this court can resolve this case narrowly is to simply say that Congress at a minimum

[00:45:25] Speaker 00:
if it's going to sue the president of the United States, has to pass a statute that expressly authorizes a suit against the president of the United States.

[00:45:32] Speaker 00:
That's what the Supreme Court has held twice, both in Franklin versus Massachusetts and Nixon versus Fitzgerald.

[00:45:38] Speaker 00:
It said in light of the separation of powers concerns with suing the president, you had a minimum need in express statement.

[00:45:44] Speaker 00:
These are members of Congress.

[00:45:45] Speaker 00:
If they want to sue the President and their bodies agree with them, they can pass a law that says they can do it.

[00:45:51] Speaker 00:
They haven't done so, Your Honor, and for that reason, as well as the lack of standing and the lack of the underlying merits, this case should be dismissed.

[00:45:58] Speaker 00:
Thank you.

[00:45:58] Speaker 02:
All right, thank you.

[00:45:59] Speaker 02:
We'll take a short break.

[00:46:01] Speaker 01:
Stand, please.

[00:46:03] Speaker 01:
This article will now have a short recess.