Amicus on challenging Trump’s travel ban, and Hernandez v. Mesa.

Reading the Constitution on the U.S.-Mexico Border, an Amicus Podcast Transcript

Reading the Constitution on the U.S.-Mexico Border, an Amicus Podcast Transcript

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March 14 2017 11:38 AM

The Constitution’s Limits on the U.S.-Mexico Border

Read what Slate’s Amicus podcast had to say about Hernandez v. Mesa.


This is a transcript of Episode 61 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Dahlia Lithwick: Hi, and welcome to Amicus. I’m Dahlia Lithwick. I cover the courts and the law for Slate. This week was an off week at the U.S. Supreme Court as Donald Trump’s nominee for the year-old vacancy at the high court made the rounds on Capitol Hill for his courtesy meetings, but next week the justices will be back in the saddle. Among the cases they’re going to hear is one that touches on immigration, and Border Patrol, and the rights of foreigners inside the United States, all things with incredible resonance today. Later on in the show, we’re going to speak to one of the lawyers involved in that case, but first we’re going to turn to the continuing legal fallout from President Donald Trump’s executive order on immigration from just a few weeks back.

This week, a federal judge in Virginia issued a preliminary injunction against that travel ban. This, of course, comes on the heels of the recent decision from the 9th Circuit blocking implementation of Trump’s new rules. But this Virginia lawsuit was actually filed before the Washington state lawsuit, and it stems from the case of the Aziz brothers, the two Yemenis whose deportation back to Djibouti we talked about on this podcast only two weeks ago. In the Virginia order from this week, the judge went further than the Seattle and 9th Circuit judges and got to the constitutional merits of the case, finding that the ban was at least in part animated by religious prejudice toward Muslims. You may remember that the Commonwealth of Virginia itself joined onto the suit, arguing that the ban would impact public colleges and universities in the state. Virginia Attorney General Mark Herring has been at the helm of this effort. He scored a big win this week, and he joins me now to explain what’s going on with this suit. Mr. Attorney General, welcome to Amicus.

Mark Herring: Thank you very much for having me. This is the first podcast I’ve done, so I’m really excited.

Lithwick: We’re thrilled to have you. I feel like Virginia got a tiny bit ripped off because the Seattle lawsuit got a lot of the ink and the publicity, but the Virginia suit was actually pretty amazing, and the win in Judge Brinkema’s court on Monday went much further actually than the Seattle order. Can you talk a little bit about what Judge Brinkema did on Monday, and why it’s actually very significant going forward?

Herring: It was extraordinary. The 9th Circuit case talked and focused primarily on procedural due process, and Judge Brinkema really got to the heart of the religious discrimination piece of it. In doing that, it does a couple of things. First, it goes to the very validity of the order regardless as to who is affected or impacted. Procedural due process, different visa holders, different green card holders may have different due process rights, refugees may have different due process rights than others. That gets very cumbersome in terms of deciding what process is due. If the motivation for the executive order was illegal, it goes to the very heart of the executive order and affects everybody who’s impacted by it, regardless of what group.

The second thing that I think is really important about getting to the Establishment Clause claim is that it gets to why it’s important for the judicial branch to serve as a check on the executive branch when the executive is claiming extraordinary power. These cases don’t come along very often. As the judge noted, presumably that’s because government officials usually act because of legal and proper motive. When these cases do come along, it is important for the judicial branch to call it out and recognize it for what it is.

Lithwick: I think it’s probably worth flagging, too, she was also willing to say in a way that we hadn’t seen a judge do yet, this is actually probably making our country less safe, citing the opinions of national security officials who’d weighed in. Again, it goes beyond piercing the pretext but actually saying, “I’m not seeing a lot of evidence that this is making us safer.” It seems that that was beyond what we’d seen thus far from the courts.

Herring: Actually, the administration offered no evidence. Not only did the administration not refute all of the facts that we had put into evidence, but they didn’t offer any at all to support their contention. In all of the years that I’ve been practicing law, if one side doesn’t present any evidence at all, it’s probably because there isn’t any. The judge was willing to look behind that and had all of the facts pointing in the direction of religious discrimination, and that it was actually undermining national security and making Americans and our armed forces less safe, less secure, both at home and abroad. That was the evidence, and there was no evidence to counter it at all.

Lithwick: Mr. Attorney General, you talked to my colleague Mark Stern at Slate about how you think Virginia has special responsibilities to be on the right side of history based on where Virginia has located itself in some important cases in the past. Can you reflect a little bit on what that means and why you felt you had to very early and very forcefully take a stand in this case?

Herring: Sure. First of all, I saw this unfold at Dulles Airport. Dulles is one of Virginia’s gateways to the rest of the world. I saw the chaos that was happening there, and it was one of the epicenters like Kennedy in New York, and LAX, and Sea-Tac. I saw that happening and unfold right in front of me. I was at Dulles Airport and saw the chaos personally. That was happening in Virginia. There are a couple of other reasons, though. Virginia is the birthplace of religious freedom. Thomas Jefferson wrote the statute for religious freedom just a few blocks around the corner from where my office in Richmond is located, and it became the model for other state constitutions and our national Constitution. We have that rich tradition, and we’ve got a lot of minority communities of all different faiths, and at the same time now we’re seeing an increase in hate crimes, so for those reasons.

Also, my role as attorney general. I think about that a lot, that I’ve got a special responsibility to try to make sure that people’s rights are protected. As attorney general, I’ve seen that Virginia hasn’t always gotten those right. The case of Brown v. Board of Education was five cases, and one of them was out of Prince Edward County, Virginia. Virginia went all the way to the Supreme Court to defend segregation. In other cases like Loving v. Virginia, where it was a case out of Caroline County, Virginia, again, Virginia went all the way to the Supreme Court to defend the injustice of not being able to marry someone because of race. Even as recently as gender equality in higher education in the VMI case in the ’90s, Virginia went all the way to the Supreme Court, and in all of these cases, was on the wrong side of just landmark civil rights decisions.

When I took office and became attorney general, I thought about what that means and the special responsibility to try to get these cases right. We don’t have to repeat the injustices of the past. Very early on, I changed the state’s position in the marriage equality cases that were working their way through the courts and took up the side of bringing Virginia into the fight for marriage equality and for the freedom to marry the person you love. Here is a situation where I saw, what I saw, as constitutional violations based on religious discrimination. It’s important as the people’s lawyer to make sure that we don’t repeat mistakes of the past, that we learn from them, and we make sure that we get the law right, and we do what’s right for Virginians.

Lithwick: Can you talk for one moment about what state AGs do? I have a sense that people don’t know what you do all day and the ways in which some of the attorneys general, particularly from some of the blue states—your job description changed quite profoundly in the last few weeks. I am thinking of a New York Times article I read where people are sharing late-night phone calls and sharing research. This doesn’t seem to be what you were doing six months ago. Is that fair?

Herring: First of all, let me say I’m really glad you asked that question because I’ve been an attorney general now for three years, and I know a lot of people don’t know what attorneys general do. Sometimes I think even my own family doesn’t fully know. I think of it as being the people’s lawyer. A part of that work means representing state agencies, providing day-to-day legal advice, handling criminal appeals, those types of things. As the people’s lawyer, I also see that our responsibility includes looking at the law, using the law to help people, especially those who are discriminated against, those who are vulnerable, those who truly need the arm and shield of the law to help and protect them. In this, let’s just say in this time of great uncertainty, I think attorneys general can provide a steady hand at the wheel and make sure that some of these fundamental liberties, some of the fundamental protections, are going to continue to be there for everyone, minority communities, people who are vulnerable, for everyone.

I can share one example where I see that with the new administration there are changes that I’ve had to make in my office in priorities. I mentioned earlier hate crimes are on the increase, 6 percent nationally but over 20 percent here in Virginia. For decades, Virginians and the nation have been able to count on the Justice Department and the Civil Rights Division to protect people’s civil liberties, to prosecute vigorously hate crimes, to make sure that our antidiscrimination statutes are fully enforced. I don’t have that same confidence that this administration is going to place civil rights as a high priority. I’ve announced efforts to have my office be able to pick up some of the slack if the current administration backs off on civil rights and enforcement so that we can begin to make sure that all communities and all Virginians know that we will be there to protect their civil rights and their civil liberties if the administration backs off from that commitment.

Lithwick: Before I let you go, Mr. Herring, one last question. You were on the ground at Dulles, as you said, very, very quickly as all this started to manifest after the executive order was signed. I think it’s easy for listeners to think, “Well, the lawyers solved this, and the courts solved this.” Does it matter that there were folks with signs, in their pajama bottoms, with their computers, mobbing the airport? How much of a responsibility and how seriously do you take the responsibility of folks who maybe aren’t the attorney general of the commonwealth but want to show up and help? Did that matter? How did that change things?

Herring: It matters a lot. In that first day after the executive order came out and the travel ban was being implemented, when I went to the airport it was just total chaos. It was simultaneously uplifting and frightening, uplifting on the one hand because people had come out spontaneously to support diversity, to support people who are coming to this country, but also frightening because I saw firsthand how families had been separated, and agents were not providing any information. I will never forget—I think she was an Iranian woman—when she heard I was the attorney general, pushed her way through the crowd, grabbed me by the coat and said, “Please help me. They have my 5-year-old son and won’t tell me anything.” It was hours before they were reunited. You can imagine. I’m a parent, and I’m sure anyone out there would understand how understandably distraught she was. That kind of engagement is really important.

I also remember in that first court hearing in Alexandria in this case, the judge remarked how she thought this was one of the largest outpourings of concern that she remembers having seen. While she didn’t elaborate too much, what I think she was getting at is we are a melting pot, and it is a defining characteristic of who we are as a nation, and that Americans want to continue to be that beacon of hope for the rest of the world. To have people spontaneously come out in support of those kinds of core values, it’s incredibly important in all kinds of ways.

One of the students who was trapped overseas, she was from Libya and was visiting family and got trapped in Turkey and couldn’t get on a plane. She spent five days in Turkey. Finally when she was able to get back, I was fortunate enough to be at the airport to welcome her back. She remarked that when she got here she felt loved. There is tremendous damage to our reputation being done by this ban, but when others see the kind of support and the outpouring that happened, it really makes a difference in their lives, it makes a difference to policymakers, and it is really important for people to continue to stay engaged at every level.

Lithwick: Mark Herring is Virginia’s attorney general. I thank you so very much for your time on Amicus today.

Herring: Thank you for having me.

* * *

Lithwick: Now we’re going to turn to a case that will be argued on Tuesday at the U.S. Supreme Court that has its tentacles in all sorts of issues you’re thinking about already. That includes the Border Patrol, it includes the rights of foreigners in America, and it includes, what are we going to do about the fact that we only have eight justices on the U.S. Supreme Court? The issue for the court in Hernandez v. Mesa is complicated. There are three separate questions before the court. In general, the thing to think about going into this case is whether the border itself acts as a kind of “on/off switch” for the Constitution’s protections against unreasonable use of deadly force as protected in the Fourth Amendment.

Joining us now to talk about Hernandez and some other interesting stuff in which he is involved is Deepak Gupta. He’s a Supreme Court litigator with Gupta Wessler in Washington, D.C. He’s also the author of the brief representing the Hernandez family, which is bringing this appeal to the Supreme Court. Welcome to Amicus, Deepak.

Deepak Gupta: Hi, Dahlia. Thanks for having me.

Lithwick: I have so many things, so many things for you, but I want to start with Hernandez v. Mesa. It’s being argued on Tuesday. If this were a normal time, you would be laser focused on this and nothing else, but I know there’s other stuff going on. Let’s talk about Hernandez. I want you to just set the table for us because there is a huge question of facts on either side of this case. Tell us the facts as laid out in the brief filed by Hernandez’s family.

Gupta: Sure. In 2010, Sergio Hernandez, who was a 15-year-old boy, was playing with his friends at the border in El Paso, Texas. He lives in Juarez, Mexico, which is right on the border. El Paso and Juarez are sister towns. He was playing with his friends, and running up to the border and playing a game that the boys there play where they dare each other to run up to the border fence with the United States and scamper back. Maybe not the smartest game to play, but that’s what they were doing. To just set the stage, Dahlia, there’s a culvert, a cement area where the dry Rio Grande River would have run. That separates the two countries. There’s this area that’s a no-man’s-land between the two countries. What happened was the boys were in that area, running up to the American border fence, and Sergio was shot by a border agent, Agent Mesa, who was standing on U.S. soil at the time. He was shot in the head and he died pretty quickly, and the Border Patrol agents didn’t send anyone to help him. He was allowed to die.

Unfortunately, this is not an isolated incident. There have been 10 border shootings like this in recent years, about a couple every year. That’s a new phenomenon. It didn’t happen in the 1990s. It is something that is really troubling to people who live in these border communities on both sides of the border because I think it’s important to recognize these are shared communities. There’s a main street that runs through the border, and they used to be one town. It really tears at the fabric of these communities.

Lithwick: Now it’s probably worth saying that Agent Mesa entirely disputes the facts that you just laid out. They claim that Hernandez was, even though he was only 15, he’d been arrested for alien smuggling, that these teens were throwing rocks at him, and that they provoked the shooting. Definitely their side is not that an innocent 15-year-old was playing a game in a culvert, right?

Gupta: Yeah, there’s definitely a factual dispute. I think that’s what we have trials for. The question in this case as it comes to the Supreme Court is, do we even get that far? Does Sergio’s family even have a right to come into court and lay out its set of facts? I’d also just say to their set of facts, even if you grant that some of the kids were throwing rocks, that is not a justification for the use of deadly force against an unarmed teenager.

Lithwick: All right, so let’s get to the issues in the case because these are big constitutional and complicated questions, and start with the idea that we have an officer in the United States shooting a Mexican citizen in Mexico, which raises all these questions of extraterritoriality and the Fourth Amendment. Can you lay out what the question is and what the test is that you’re seeking to apply?

Gupta: Sure. Extraterritoriality is a big word that I’m sure only lawyers use. What it means is, does the Constitution apply outside of U.S. territory, or does it simply follow the flag and stop at our borders? That is a pretty central question in this case, and surprisingly it’s not one that’s terribly well settled in American constitutional law. During the Bush administration, when President Bush sent detainees to Guantanamo, there was a question about whether or not the Constitution would protect the people in Guantanamo even though they were not in the United States. The Supreme Court held in an important case called Boumediene that the Constitution would apply, that we have a practical functional analysis that determines when constitutional protections apply to people who are not U.S. citizens, who are not in the United States.

Then there’s another case, an older case, in which the Supreme Court applied a more formalist analysis and suggested that the Fourth Amendment only applies to the people of the United States, and that’s in the text of the Fourth Amendment. In the case of a search by DEA agents of a drug lord’s house in the interior of Mexico, the court held, “We’re not going to apply the Fourth Amendment’s warrant requirement, that you have to have a warrant before you search people in a house in Mexico because this person was not among the people covered by the Fourth Amendment. We’re not going to imply the kind of practical analysis that the court applied in Boumediene.” One of the things the court is going to have to do here is reconcile those two approaches. As is so often the case, Justice Kennedy is the central character here because in that case involving the search in Mexico, he wrote separately and wrote an opinion that endorsed a much more functional practical analysis of the kind he later adopted when he wrote the opinion for the court in Boumediene.

Lithwick: When this case gets to the 5th Circuit Court of Appeals, the Hernandez family actually loses, right? The 5th Circuit rejects the test you’re suggesting, and they go to this older test that you’re citing, Verdugo-Urquidez.

Gupta: Right.

Lithwick: What does that mean? Did the 5th Circuit just get it wrong, or do you think that there’s some way to mash together these two tests, both of which, I think you’re quite right, depend on Anthony Kennedy? Is it necessary for the court to completely take the Boumediene viewpoint, or is there some middle place they can look to, to find the adequate test for protecting a foreigner who is shot right across the border by a U.S. border guard?

Gupta: I think Boumediene, it’s not just an opinion about what happened at Guantanamo Bay. It was Justice Kennedy’s attempt for the whole court to synthesize 100 years of case law about this pretty tricky question about when does the Constitution apply outside of our borders. We think that is the precedent that the court needs to follow, and then the question is, what do you do about this other case involving the search in Mexico? I think the best way to understand that case consistent with the whole line of the court’s cases is that it just wouldn’t be practical to apply the warrant requirement in another country, in Mexico. That’s what Justice Kennedy said in that case. After all, the warrant requirement turns on whatever the local customs are and the local laws, and it wouldn’t be very workable to try to apply the warrant requirement to searches by American agents anywhere in the world. How would that apply, for example, to the war on terrorism and all sorts of other law enforcement activities that U.S. agents engage in worldwide?

Lithwick: Deepak, I want to give you a chance to talk about two other issues before the court, and they have to do with questions of immunity for officers. Can you talk a little bit about what the facts are there, and what the issue is there?

Gupta: Sure. There’s a doctrine called qualified immunity that really is something that it doesn’t come from Congress, it doesn’t come from the text of the Constitution. It’s something that the Supreme Court has made up over the years. The idea is to protect officers. The court wants officers to not be so afraid of liability that they won’t be able to do their jobs. The rule under qualified immunity is basically, “We’re not going to hold officers liable for damages for violating the Constitution unless it was clearly established that what they did violated the law.” If you have a novel case that’s testing a new constitutional rule, the court might hold that that violates the Constitution and still say, “We’re not going to hold this particular officer liable because the officer couldn’t have known about it.”

In this case, Agent Mesa, the Customs and Border Patrol guard who committed this shooting, has asserted a qualified immunity defense. Everyone agrees, I think, that if this shooting occurred on U.S. soil and involved a U.S. citizen, the constitutional protections against the use of unjustified deadly force would apply. The wrinkle here is, can he assert a defense based on the idea that Sergio is a Mexican citizen standing on Mexican soil, and it wasn’t clearly established whether he would have constitutional rights? The way we have framed the question to the court is, the question here is, “Can you base a defense of qualified immunity based on facts that weren’t known to the officer, because the officer did not know the citizenship of the victim.” If it were an American citizen he shot, there’s no question that would be a use of unjustified deadly force. It’s really hard to understand how the purposes of this doctrine of immunity are served by giving immunity to an officer who did something that’s egregious, and unlawful, and would have been clearly unconstitutional had the victim been a U.S. citizen.

Lithwick: I want to ask you, because this case would be unbelievably important, notwithstanding current events, but I think layered over current events, and the justices read newspapers, they know what’s going on, doesn’t this raise unbelievable questions about CBP generally, about foreigners and what their rights are with respect to United States constitutional protections? This seems to be an unbelievable coincidence that the court is going to hear something that has so much salience for other reasons, even though just technically this is a narrow question about one Border Patrol officer in Mexico, right?

Gupta: Yeah, I think that’s absolutely right. The court couldn’t have known when it took this case how events in the world were going to play out. It is eerily relevant to what’s happening with the Muslim ban litigation because a central argument that the federal government is making here is that these Customs and Border Patrol officers in effect should not be subject to judicial review because if we don’t have a damages action for the family of this victim here, there is no other way to get into court to test the constitutionality of what occurred here, and even to get to the question of whether the Constitution even applies.

What the Solicitor General’s Office is saying is that because this case implicates, in their view, questions of foreign relations, national security and immigration, the executive’s judgment should be trusted, and the courts do not have a role to play in judicial review. If that sounds familiar, it’s because it’s precisely the argument that the president’s lawyers have been making in the Muslim ban litigation that’s played out around the country.

Lithwick: This is a nice segue to one of the incredibly alarming Amicus briefs that’s filed in this case. It’s a brief filed by some high-up officials from the Customs and Border Patrol, or CBP, alleging some, I think, incredibly damning clams about what they describe as “the largest civilian law enforcement agency in the country.” These are claims about increased militarization, the use of Black Hawk helicopters, and Predator drones, and inadequate training, and the lack of accountability. Again, it feels like it chimes with claims that we’re hearing about CBP in the immigration ban lawsuits, right?

Gupta: Yeah, absolutely. This is an agency that has become really unaccountable because a lot of its actions either cannot or are very difficult to test in the courts. Because it has a culture—the law enforcement culture of impunity—because complaints are discouraged, and because officers who commit egregious acts of misconduct are not disciplined, there really has to be some kind of check here. I think the court, given current events, I’m hopeful that they will recognize that that needs to happen. I think, as you said, the justices read the newspaper, they watch television, I think they see that there are these raids all across the country. Families are being torn apart in ways that really just don’t make much sense. I’m hopeful that that will affect the way the court sees the case. Of course the court is going to decide this case on the law, but the law is not blind. It takes account of current realities. I think when the Trump administration Solicitor General’s Office stands up next week and says, “You should trust the executive, and the courts have no role to play,” that argument is going to have a lot less credibility now than it would have had a few months ago.

Lithwick: Yet, I think the other side will claim, and it seems to me with some persuasive authority, that the last thing we want to do is constitutionalize international law and give every single citizen of the world rights under the U.S. Constitution. I think there are real fears going the other way about how this could very much impact on the president’s effort to protect national security right now.

Gupta: We will hear those concerns, but I think they’re entirely unfounded. What we’re asking for here in this case is a pretty modest holding. We’re asking for the court to hold that law enforcement conduct that occurred entirely on U.S. soil, so it’s domestic conduct entirely, should be subject to judicial review under circumstances where if the victim were a U.S. citizen, everyone would agree that there would be an egregious constitutional violation. That is not too much to ask. It doesn’t mean that we’re constitutionalizing things like drone strikes in Pakistan or all sorts of other national security operations that I think everyone agrees are within the apex of presidential power.

Lithwick: Before we leave Hernandez, I want to ask you one more question, and it’s the least fun game we play here on Amicus. It’s what does it mean that there’s the possibility of a 4–4 tie? What does it mean? I think you’ve said, and you’re right, that all eyes are on Justice Kennedy, maybe more so than in many other cases. It took the court a long time to determine whether to grant this case. What does it mean that there may be a possibility of a hamstrung four–four court next week?

Gupta: I do think that the court thought about that when they decided whether to grant the case. I’m optimistic that the court wouldn’t have taken the case unless there was some thought among Justice Kennedy, and Justice Breyer, Justice Ginsburg, Sotomayor, and Kagan that they would be able to put together a majority in the case. The court did add this question about whether or not there can be a damages remedy here. I think one way of reading that is that it’s not a good sign for us because we were not asking that question. Another way of reading that is that the court was going to have to answer that question in another set of cases that was recently argued where the court didn’t have the complement of justices. You had Justices Kagan and Sotomayor recused. It would have been pretty strange to set the law on that question in a case where you had so few justices, and so maybe that’s why they added it to this case. That’s just speculation. I really don’t know. There’s a right answer to that question, it’s just that only folks within the building at the Supreme Court know what it is.

Lithwick: It might only be Anthony Kennedy, as is often the case.

* * *

Lithwick: Deepak, you are a man of many, many hats. While we have you here, I want to pivot jarringly to another lawsuit entirely, and that is the emoluments challenge. You are one of the architects of a lawsuit that was filed in late January challenging President Trump on violations of the Emoluments Clause of the Constitution. Can you tell us a little bit about what the lawsuit was all about and what emoluments even means?

Gupta: Sure. The Emoluments Clause is not something that most—even constitutional—lawyers know about, it’s not something that’s taught in law schools, but a lot of us have been focusing on this lately because the framers in their infinite foresight understood that it would be a problem if you had a high-elected official of the United States government who was receiving payments from foreign governments. There is a strict rule, the Foreign Emoluments Clause, that prohibits elected officials from receiving presents or emoluments from foreign states. Now the question of course is going to be, what’s an emolument? That’s an 18th-century word that means basically a payment. It includes not just salary and compensation, but all sorts of payments or benefits.

Then there’s also a Domestic Emoluments Clause that applies only to the president. The president gets a compensation, a salary, and the framers said the only thing you’re going to get is this salary. You may not receive any other emoluments from the federal government or from the states. I think given the nature of Donald Trump’s vast holdings and entanglements with both local, state, federal, and foreign governments, he has been in violation of these two clauses since day one.

Lithwick: Now this is the lawsuit, for folks who can remember way back to January, that was filed by CREW, Citizens for Responsibility and Ethics in Washington—it’s a watchdog group. Can you just answer the question, because I think this has been the question that has dogged this lawsuit, there’s some serious doubt as to whether CREW has standing to even get into court. Can you answer to that for one moment?

Gupta: Sure. Yeah, and I think there are people who have criticized CREW’s standing who haven’t actually looked at the relevant case law. I’m not going to bore everyone with all of the relevant case law, but there is a key case from the 1980s called Havens where the Supreme Court said if you have an organization and its resources are drained because it’s providing some services and it has to reallocate its resources due to a violation of the law, that confers Article III’s standing on the organization. It’s injured because it’s had to reallocate its resources.

Similarly, CREW is in the business of doing work on good government and corruption, and putting out reports, and it had a whole lot of planned activities it would engage in. Because of the unprecedented conflicts of interest that Donald Trump’s presidency presents, it’s had to reallocate its resources and is injured in the same way that that organization in the Havens case was injured. There is precedent in the 2nd Circuit, the federal circuit in which we’ve filed suit, that backs up that kind of theory of standing in a wide range of contexts. That’s the theory of standing, and I think CREW does have standing.

I think it’s important to emphasize that CREW isn’t the only kind of plaintiff that could have standing. We are hearing from a variety of people who think that they may have standing, and we’re considering those options. There’s always the possibility of amending a complaint to add plaintiffs. We thought it was important to file the suit on day one to inject the issue into the national conversation and to point out that this was a constitutional violation that started on Inauguration Day, but that doesn’t mean that CREW’s standing is the end of the story. There are state attorneys general who may be able to sue, there are hotels and restaurants that are direct competitors of Donald Trump’s enterprises that may be able to sue, and we’re considering all of those options.

Lithwick: Talk a little bit about just developments even from this week. Newsweek is breaking news every day about Trump involvement in Azerbaijan and the Philippines. Just on Thursday we’re hearing about a Chinese trademark being granted after years of not succeeding. Are all of these things salient in terms of how to think about these emoluments problems? I think it’s awfully hard for listeners who understand that you have to give up a snuffbox or some horses. Those are the traditional emoluments problems. Why is this Chinese trademark story potentially relevant?

Gupta: Because what it shows is that Donald Trump’s vast holdings are presenting these pretty clear opportunities for corruption. He fought for years to try to get trademark protection in China and was unable to do so. He then pretty famously in the period before he even took office reneged on the One China policy that administrations of both parties had followed. Then lo and behold, after he takes office, he receives the trademark protection in China. We can’t prove, I don’t certainly have evidence that shows that the reversal of that decision was based on the fact that he’s president. I think that’s the whole point of ethics and corruption standards is that they’re designed to prevent the appearance or possibility of impropriety. The framers did not want any question about whether the president or other high-elected officials were loyal to the American people versus their own private interests and whether that could cause them to have divided loyalties.

In Donald Trump’s case, the conflicts are so stark. He has the Trump International Hotel in Washington, which is right down the street from the White House. There are diplomatic receptions and events that have been moved there from other hotels. Diplomats from foreign countries have said, “The reason we’re doing this is because Donald Trump is the president. We want him to like us.” The prices for the drinks at that hotel are now—you can get a cocktail for $100 at the bar at that hotel. He has a building in New York where one of the largest tenants is a bank owned by the Republic of China. He has buildings in the city centers in countries around the world, in places like Istanbul, he has a building. These buildings have his name emblazoned on them, so they become targets for terrorism. Then what happens? Does the United States government protect the private business interests of the president? These are not choices that we should have to make. The president has a pretty important job. The American people hire that person to do that job. They should be loyal only to the best interests of the American people.

Lithwick: Deepak, the fact that he says, “Hey, my sons are running the company. Arm’s length. I’m not keeping foreign profits,” I’m guessing that doesn’t hold a ton of water for you and the other emoluments doubters.

Gupta: No, it really just doesn’t cut it because the question is, “What are the president’s financial interests?” Unless he completely divests himself of these holdings, unless they’re sold off, it’s really difficult to see how this portfolio of assets, these buildings that say Trump all over them, are not presenting serious financial conflicts of interest. The steps that the administration has taken so far, they’re really just a fig leaf. They held this press conference where there were a bunch of file folders on the table.

Lithwick: A lot of folders, a lot of folders.

Gupta: Right. I think a lot of us assume that those folders were empty. The president had to hire a private law firm, Morgan Lewis, even before taking office, and they put out a legal argument. That legal argument acknowledged that the Emoluments Clause applies to the president, and then tried to argue that it doesn’t matter if there’s a payment through his hotels or his other enterprises as long as there’s a fair market value exchange. I think that doesn’t hold up to even the slightest of scrutiny because built into any kind of fair market exchange is some profit, and you can see that the president and his enterprises are already profiteering off of his presidency. The Mar-a-Lago Club has increased its membership fees by double since the inauguration. The cost of cocktails at the Trump International Hotel have shot up astronomically. They’re clearly deriving profit from the presidency and encouraging the business of foreign governments. The Trump International Hotel hired away a director of diplomatic sales from a hotel across town. They’re actually deliberately cultivating foreign government business.

Lithwick: Before I let you go, I have to ask you a question that is the one that I think about the all the time, which is everybody keeps saying, “Don’t focus on this. It’s a distraction from this,” and, “Don’t focus on this other thing because it’s a distraction from this other thing.” I think that’s the recipe for crazy. I want to ask you, what is it that we’re missing right now? I think that there’s so much going on. We’re clearly missing something important. Is there anything that you would say to listeners, “Hey, if I were looking a little more carefully, I would think about X.”

Gupta: Yeah, I would say with all the chaos emanating from the executive branch, don’t forget about what’s happening over in Congress because there is a deregulatory agenda that’s being pushed through quietly while everyone is focusing on everything else. On Wednesday night, the House Judiciary Committee marked up and sent to the full House a bill that will effectively kill class actions. There is virtually no reporting or discussion about it or public attention about it, as far as I can tell. That is a shocking thing. They held no hearings. It’s the kind of legislation that if all this other stuff weren’t going on would be the biggest deal going on in Washington. Because of the chaos, I think this chaos is being used as an excuse to ram through a whole lot of things. There are other pieces of legislation, legislation about the way regulations are written, the way the whole administrative state functions. These are very, very serious pieces of legislation, and they just are not getting the kind of public attention they deserve.

Lithwick: Deepak Gupta is a Supreme Court litigator with Gupta Wessler in Washington, D.C. I thank you so very much, I know you’re busy, for joining us this week on Amicus.

Gupta: Thanks for having me.

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