Podcast Summary: Amicus With Dahlia Lithwick

Episode Title: A Look at the Original Quid Pro Quo: Emoluments
Date: November 9, 2019
Host: Dahlia Lithwick
Notable Guests: Mimi Rocca (Pace Law School; former federal prosecutor, legal analyst), Senator Sheldon Whitehouse (D-RI), Deepak Gupta (Supreme Court advocate, Gupta Wessler PLLC).

Overview

This episode of Amicus focuses on two interconnected crises in American constitutional governance:

1. The meaning and implications of quid pro quo, especially in the context of the Trump-Ukraine scandal and impeachment inquiry,
2. The original anti-corruption mechanisms enshrined in the Constitution—namely, the Emoluments Clauses—how they've been neglected or violated, and their relevance to contemporary politics.

With expert commentary from legal analyst Mimi Rocca, Senator Sheldon Whitehouse, and advocate Deepak Gupta, the episode unpacks the legal, historical, and practical ramifications of these issues, while urgently calling attention to creeping judiciary politicization, court capture by moneyed interests, and the enduring importance of constitutional norms.

Key Segments & Insights

1. Quid Pro Quo: Legal Meaning and Proof

[00:38–06:55]

Guest: Mimi Rocca

• Definition & Legal Standard:

  • Quid pro quo literally means “a thing for a thing”—some exchange of value for another.
  • Classic examples include mob shakedowns; e.g., “You pay for protection, or else.”

    "Ukraine is the store and...Rudy Giuliani and all the people who communicated with the President of Ukraine or his aides...they're the mob associates working for the boss." — Mimi Rocca [02:21]

• Impeachment Parallel:

  • The Trump-Ukraine scenario is strikingly similar to a classic mob shakedown: U.S. officials demanded public declarations of investigations against the Bidens in exchange for military aid and a White House meeting.

• Explicit vs. Implicit Demands:

  • Most quid pro quos don’t have “explicit” ask/offer exchanges. Contextual, implicit signals (withholding money/protection until a demand is met) suffice for prosecutors.
  • Trump’s “We need a favor though” line is unusually direct, but not strictly necessary for proving a quid pro quo.

• Intent & Lindsey Graham’s Defense:

  • Attempted legal defenses that Trump “couldn’t have formed intent” are dismissed:

    “Whether or not everybody was communicating the same demand exactly the same way is meaningless. The question is, did they all know the general idea of what was being asked and why? And the answer...overwhelmingly is yes.” — Mimi Rocca [05:25]

2. Federal Judiciary “Takeover” and Dark Money Influence

[09:03–13:15; returns at 16:35 with Senator Whitehouse]

Host Commentary & Senator Sheldon Whitehouse Analysis

• Judicial Appointments:

  • Trump has seated more judges than any president since 1980; 1/4 of the federal appellate courts are now “Trump judges”—younger, more ideological, and less qualified, overwhelmingly white and male.
  • Mitch McConnell’s procedural changes have lowered vetting standards, disregarded American Bar Association ratings, and upended long-held Senate traditions.

• Pattern of Supreme Court Decisions:

  “Under Chief Justice Roberts, there are 73 of these five to four partisan decisions in which there was a big Republican donor interest implicated. And in 73 out of 73, the big Republican donor interest won.” — Senator Whitehouse [00:05 and restated at 29:15]

• Systematic Capture:

  • The right has built a massive, coordinated network (Federalist Society, Heritage Foundation, Judicial Crisis Network) to select, confirm, and influence justices using “dark money”—large, anonymous donations.
  • Democrats have been slow or unwilling to publicly and systematically call out this pattern.

• Breaking the Silence:

  • Senator Whitehouse advocates transparency, ethics codes, and structural judicial reforms to combat donor-court capture.

  “Transparency, I think becomes an incredibly important virtue in and around the court.” — Senator Whitehouse [24:19]

3. Court Legitimacy, Public Confidence, and Political Dilemmas

[14:09–16:35]

• Legitimacy vs. Critique:

  • There’s reluctance (especially among Democrats) to delegitimize the courts, since they are still seen as a bulwark against executive abuse. However, strategic silence enables ongoing abuse.
  • The judiciary itself depends on public confidence, not coercive power.

• Notable Quote:

  "...There comes a time when you simply have to just not be played for a sucker any longer and call the game for what it is." — Senator Whitehouse [15:32]

• Sen. Whitehouse’s Amicus Brief:

  • The famous warning:

    “The Supreme Court is not well, and the people know it. Perhaps the court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” [16:35]

4. Emoluments Clause and Presidential Corruption

[35:13–66:10; Interview with Deepak Gupta]

Deepak Gupta, one of the lawyers bringing emoluments litigation against President Trump, discusses:

• What Are the Emoluments Clauses?

  • Two clauses: Foreign (Article I, Section 9, Clause 8–applies to all federal officials) and Domestic (applies only to the president).
  • Bar on accepting “any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign State.”

• Purpose and History:

  • Framers intended to prevent corruption at home and abroad; the risk was not favors for explicit bribes, but the mere entanglement (appearance or reality) of foreign and domestic influence over the president.

• Historical Practice:

  • Past presidents (e.g., Jimmy Carter, Obama) took pains to comply—divesting businesses, consulting with DOJ, establishing blind trusts.

• Trump’s Violations:

  • Gupta argues Trump’s hotel/golf course business dealings are a textbook, unprecedented violation:

    “What’s remarkable is that we, for the first time in American history, have a president who’s now really openly and brazenly violating these clauses.” — Deepak Gupta [40:09]

  • Trump’s “arm’s length” arrangements are cosmetic and do not prevent enrichment.

• Standing & Legal Challenges:

  • Lawsuits had to clear hurdles regarding who can sue (“standing”); Gupta’s team ultimately succeeded by representing business competitors and state interests directly disadvantaged by Trump’s commerce.
  • Cases are slowly moving forward; courts have begun to recognize the plaintiffs’ right to be heard.

• Public Education Aspect:

  “This litigation has been about teaching the public about norms that have been in the Constitution and have always been there and have kind of come back to life because of the unique abuses that Donald Trump is engaged in.” — Deepak Gupta [48:25]

• How Emoluments Connect to Impeachment:

  • Gupta and Lithwick note it's a missed opportunity that the emoluments violations haven’t been central to impeachment (the focus has narrowed to the Ukraine scandal).
  • Repeat theme: Impeachment should spark a public conversation about the kind of corruption the Constitution specifically forbids.

• Real-World Example:

  • Notable, chilling detail:

    “If you look at the [Trump-Zelensky] call ... Zelensky says to Trump, look, he wants him to know when I was in New York last time I stayed at your hotel. ... That’s the kind of thing that happens in kleptocracies.” — Deepak Gupta [59:34]

• Relief Sought:

  • Plaintiffs want the courts to declare Trump in violation and/or to enjoin him from profiting from presidency-related business.

• What’s at Stake?:

  “Framing what Donald Trump is doing with his private businesses in terms of the Constitution is a way of saying this is not normal. ... I think...our sense of what is and isn’t normal tends to slip. And I think that’s a real danger with any society that starts to slip away from the rule of law...” — Deepak Gupta [65:03]

Notable Quotes & Timestamps

| Timestamp | Speaker | Notable Quote | |-------------|-------------------------------|-------------------------------------------------------------------------------------------------------| | 00:05 | Sen. Whitehouse | “Most Americans have no idea that under Chief Justice Roberts, there are 73 of these 5–4 partisan decisions...in 73 out of 73, the big Republican donor interest won.” | | 02:21 | Mimi Rocca | “Ukraine is the store and...Rudy Giuliani...they’re the mob associates working for the boss.” | | 05:25 | Mimi Rocca | “Whether or not everybody was communicating the same demand exactly...is meaningless. ...The answer...is yes.” | | 15:32 | Sen. Whitehouse | "...There comes a time when you simply have to just not be played for a sucker any longer..." | | 16:35 | Dahlia (re: Whitehouse brief) | “The Supreme Court is not well and the people know it. Perhaps the court can heal itself before the public demands it be, quote, restructured in order to reduce the influence of politics.” | | 24:19 | Sen. Whitehouse | “Transparency, I think becomes an incredibly important virtue in and around the court.” | | 40:09 | Deepak Gupta | “What’s remarkable is...for the first time in American history, [we] have a president...openly and brazenly violating these clauses.” | | 48:25 | Deepak Gupta | “This litigation has been about teaching the public about norms...that have kind of come back to life because of the unique abuses that Donald Trump is engaged in.” | | 59:34 | Deepak Gupta | “Zelensky says to Trump...when I was in New York last time I stayed at your hotel. ...That’s the kind of thing that happens in kleptocracies.”| | 65:03 | Deepak Gupta | “Framing what Donald Trump is doing...in terms of the Constitution is a way of saying this is not normal. ...I think...our sense of what is and isn’t normal tends to slip.” |

Detailed Episode Structure (Timestamps)

• [00:38–06:55] — What is a quid pro quo/How prosecutors prove it (Mimi Rocca)
• [09:03–13:15] — The Trump/McConnell court-packing, dark money, judicial appointments
• [14:09–34:00] — Senator Whitehouse on court capture and public confidence
• [35:13–66:10] — Deep dive: Emoluments clauses, history, ongoing litigation (Deepak Gupta)
• [54:09–58:32] — Why emoluments have been sidelined in impeachment, teaching constitutional norms
• [59:34–62:27] — Embedding emoluments into impeachment, concrete examples (Trump-Zelensky call)

Conclusion

This episode underscores the constitutional crisis presented by quid pro quo corruption, the weakening of judicial independence and legitimacy, and the systematic neglect of explicit constitutional bans on presidential self-enrichment. It issues a warning against complacency, highlighting the urgent need for public vigilance, transparency, and the restoration of American constitutional norms:

“We have to continue to press the issue. We can’t just let go of it.” — Deepak Gupta [66:10]