General Strike

Summary

Amicus with Dahlia Lithwick | "General Strike"

Episode Date: February 18, 2017
Podcast Theme: Law, Justice, and the Courts—Analysis of key legal issues facing the U.S., including Supreme Court activity, immigration policy, border patrol accountability, and executive branch ethics.

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Episode Overview

This episode centers on the legal battle against President Donald Trump’s controversial 2017 executive order on immigration (the “travel ban”) and previews the Supreme Court case Hernandez v. Mesa, about constitutional protections at the U.S. border. Host Dahlia Lithwick interviews Virginia Attorney General Mark Herring about his state's successful legal challenge to the travel ban and then speaks with Supreme Court litigator Deepak Gupta about both the Hernandez case and the emerging "emoluments" lawsuit against President Trump. The episode explores questions of judicial oversight, civil rights, and the courts’ role in checking executive power.

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Key Discussion Points & Insights

1. Virginia’s Legal Challenge to the Travel Ban (with Mark Herring)

[02:25–16:32]

• Uniqueness of the Virginia Lawsuit

  • The Virginia case went further than prior federal cases by addressing the constitutional question of religious discrimination, not just procedural due process.

  • Judge Brinkema’s ruling found the ban at least partially motivated by religious prejudice, deepening the national dialogue about the order’s legality.

    “Judge Brinckema really got to the heart of the religious discrimination piece of it ... it goes to the very validity of the order.”
    — Mark Herring [02:56]

• Judicial Oversight & Checks on Executive Power

  • The judge emphasized that the courts must scrutinize extraordinary executive claims — especially when constitutional rights are at stake.

    “It gets to why it's important for the judicial branch to serve as a check on the executive branch.”
    — Mark Herring [03:36]

• Absence of Government Evidence

  • The administration presented no evidence to support the ban was necessary for national security. The court relied on evidence before it, pointing out the ban could actually make the country less safe.

    “In all the years I’ve been practicing law, if one side doesn’t present any evidence at all, it’s probably because there isn’t any.”
    — Mark Herring [05:14]

• Virginia's Historical Responsibility

  • Herring reflected on Virginia’s legacy—at times being on the wrong side of landmark civil rights cases (e.g., Brown v. Board, Loving v. Virginia)—and his belief that the Attorney General has a duty to "get these cases right" today.

    “When I took office ... I thought about the special responsibility to try to get these cases right, and we don’t have to repeat the injustices of the past.”
    — Mark Herring [08:59]

• Role of State Attorneys General

  • AGs are becoming pivotal defenders of civil rights, especially when federal priorities shift or recede. Herring shares that his office is ready to "pick up some of the slack" if civil rights enforcement by the Department of Justice wanes.

    “I think attorneys general can provide a steady hand at the wheel and make sure that some of these fundamental liberties ... will continue to be there for everyone.”
    — Mark Herring [10:14]

• Importance of Public Engagement

  • Herring emphasizes how grassroots activism—protests at airports and public outcry—played a crucial role in responding to the travel ban, both legally and morally.

    “It was simultaneously uplifting and frightening ... that kind of engagement is really important.”
    — Mark Herring [13:38]

    “One of [the students] remarked that when she got here, she felt loved ... it makes a difference to policymakers.”
    — Mark Herring [15:43]

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2. Supreme Court Preview: Hernandez v. Mesa (with Deepak Gupta)

[16:35–34:41]

• Case Background & Facts

  • In 2010, a U.S. Border Patrol agent shot and killed Sergio Hernandez, a Mexican teenager, from the U.S. side of the border. The case tests whether constitutional protections (notably, the Fourth Amendment) apply in such cross-border incidents.

    “What happened was the boys were ... running up to the American border fence, and Sergio was shot by a border agent ... He was shot in the head, and he died pretty quickly.” — Deepak Gupta [18:10]

• Legal Issues at Stake

  • Central question: Does the Constitution (“extraterritoriality”) protect foreign nationals harmed by U.S. officials outside U.S. borders?

  • The Boumediene framework (from Guantanamo detainee cases) vs. older, more restrictive precedent are in tension.

  • The case also involves questions of qualified immunity for law enforcement and whether courts can allow damages claims.

    “Does the Constitution apply outside U.S. territory, or does it simply ... stop at our borders? ... That's a pretty central question in this case.”
    — Deepak Gupta [21:26]

• Qualified Immunity

  • The Supreme Court-created doctrine shields officers from liability unless their violation of rights was “clearly established.”

  • The twist: Should immunity apply if the officer didn’t know the victim’s citizenship at the time of the shooting, especially when the conduct is on U.S. soil?

    “We're asking for the court to hold that law enforcement conduct that occurred entirely on US soil ... should be subject to judicial review.”
    — Deepak Gupta [32:14]

• Broader Implications & Context

  • The case comes amid heightened scrutiny of CBP actions and broader debates on immigration and executive authority.

  • Gupta draws a parallel between the government’s argument for executive deference here and in the travel ban litigation.

  • A notable amicus brief alleges CBP’s culture of impunity and inadequate oversight.

    “It's sort of eerily relevant to what's happening with the Muslim ban litigation.”
    — Deepak Gupta [28:26]

• Consequences of a Split Court

  • With only eight justices, a 4-4 tie is possible, complicating prospects for a nationwide precedent.

    “It might only be Anthony Kennedy, as is often the case.” — Dahlia Lithwick [34:41]

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3. The Presidential "Emoluments" Lawsuit (with Deepak Gupta)

[34:41–45:53]

• What is the Emoluments Clause?

  • Prohibits government officials from accepting any benefits (“emoluments”) from foreign states or the federal/state government outside official salary, intended as an anti-corruption measure.

    “It's not something that's taught in law schools. But a lot of us have been focusing on this lately because the framers ... understood that it would be a problem if ... a high elected official ... was receiving payments from foreign governments.”
    — Deepak Gupta [35:15]

• The Lawsuit’s Theory & Standing

  • The Citizens for Responsibility and Ethics in Washington (CREW) sued Trump, alleging his businesses’ foreign earnings violate the Constitution.

  • Standing is argued based on resource diversion required to monitor and counteract alleged violations (“Havens” doctrine).

    “CREW is in the business of doing work on ... corruption ... it had to reallocate its resources ... That's the theory of standing.”
    — Deepak Gupta [37:02]

• Recent Developments & Ongoing Violations

  • Trump’s business ties (hotels, trademarks, foreign tenants, etc.) create continuing emoluments issues.

  • Steps announced by Trump’s team (putting sons in charge, not keeping foreign profits) do not satisfy constitutional requirements.

    “The conflicts are so stark ... The steps that the administration has taken so far ... are really just a fig leaf.”
    — Deepak Gupta [42:17]

• Broader Democratic and Constitutional Concerns

  • The danger lies in the appearance—and reality—of divided presidential loyalties and unchecked conflicts of interest.

    “The president has a pretty important job. ... They should be loyal only to the best interests of the American people.”
    — Deepak Gupta [42:04]

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4. Hidden Legislative Developments

[44:45–45:53]

• Warning About Congressional Actions Amid “Chaos”

  • While attention is focused on executive controversies, significant (often deregulatory) legislation—such as class action restrictions—is being pushed through Congress with little public scrutiny.

    “Don’t forget about what’s happening over in Congress ... there is a deregulatory agenda being pushed through quietly while everyone is focused on everything else.”
    — Deepak Gupta [44:45]

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Memorable Quotes & Moments

• On the Power of Community Resistance:

  “When I went to the airport, it was just total chaos. It was simultaneously uplifting and frightening ... that kind of engagement is really important.”
  — Mark Herring [13:38]

• On Executive Power & Judicial Review:

  “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.”
  — Deepak Gupta [30:58 & 00:14]

• Historic Perspective:

  “Virginia ... was on the wrong side of just landmark civil rights decisions ... we don't have to repeat the injustices of the past.”
  — Mark Herring [08:59]

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Key Segment Timestamps

• Intro & Framing the Week’s Legal News – [00:00–02:25]
• Interview: Mark Herring, Travel Ban Litigation – [02:25–16:32]
• Interview: Deepak Gupta, Hernandez v. Mesa – [16:35–34:41]
• Interview: Deepak Gupta, Emoluments Lawsuit – [34:41–45:53]

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Conclusion

This episode gives listeners a guided tour of legal resistance to executive overreach and explores constitutional questions crucial to America’s institutions in 2017. Through high-level interviews and grounded personal testimony, Amicus frames the unique responsibilities of the judiciary, state governments, and the public in safeguarding democracy.

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For more episodes and detailed legal analysis, visit slate.com/amicus

Transcript

[A]

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.

[B]

I think when the Trump administration Solicitor General's office stands up next week and says, you know, 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.

[C]

Hi and welcome to Amicus. I'm Dahlia Lithwick. I cover the courts and the law for Slate. So this week was an off week at the US 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. And among the cases they're going to hear is one that touches on immigration and Border Patrol and the rights of foreign 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. Well, 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 Ninth 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. So, Mr. Attorney General, welcome to Amicus.

[A]

Well, thank you very much for having me. This is the first podcast I've done before, so I'm really excited.

[C]

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

[A]

Well, it was extraordinary. The 9th Circuit case talked and focused primarily on procedural due process. And Judge Brinckema really got to the heart of the religious discrimination piece of it. And 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. So procedural due process, different visa holders, different green card holders may have different due process rights. Refugees may have a different due process rights than others. So that gets very cumbersome in terms of deciding, okay, what process is due. But 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. Why, when the executive is claiming extraordinary power. And, you know, these cases don't come along very often, as the judge noted. Presumably that's because government officials usually act because of a legal and proper motive. And so when these cases do come along, it is important for the judicial branch to call it out and recognize it for what it is.

[C]

And 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, I think, yet this is actually probably making our country less safe, citing the opinions of national security officials who'd weighed in. And so, again, it goes beyond piercing the pretext, but actually saying, I'm not seeing a lot of evidence that this is making us safer. And it seems that that was beyond what we'd seen thus far from the courts.

[A]

Yeah, Actually, the administration offered no evidence. So 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. And 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. So 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.

[C]

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?

[A]

Case well, sure. Well, first of all, I saw this unfold at Dulles Airport, and Dulles is one of Virginia's gateways to the rest of the world. And I saw the chaos that was happening there, and it was one of the epicenters, like Kennedy in New York and LAX and SeaTac. So I saw that happening and unfold right in front of me. And I was at Dulles Airport and saw the chaos personally. So 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. So 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, but also my role as attorney general, and I think about that a lot, that I've got a special responsibility to try to make sure that people's rights are protected. And as attorney general, I've seen that we haven't always Virginia hasn't always gotten those right. And the case of Brown vs. Board of Education was five cases. One of them was out of Prince Edward County, Virginia, and Virginia went all the way to the Supreme Court to defend segregation. And in other cases like Loving vs. Virginia, where there was a case out of Caroline County, Virginia, and again, Virginia went all the way to the Supreme Court to defend the injustice of not being able to marry someone because of race. And 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. And so 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, and we don't have to repeat the injustices of the past. So 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, and for the freedom to marry the person you love. And here is a situation where I saw what I saw as constitutional violations based on religious discrimination. And 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.

[C]

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 seems to have changed quite profoundly in the last few weeks. Can you talk a little? I mean, I'm thinking of a New York Times article I read where people are sharing late night phone calls and sharing research and this doesn't seem to be what you were doing six months ago. Is that fair?

[A]

Well, first of all, let me say I'm really glad you asked that question because I've been 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. But I think of it as being the people's lawyer. And a part of that work means representing state agencies, providing day to day legal advice, handling criminal appeals, those types of things. But 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. And in this, let's just say 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 these fundamental protections are going to continue to be there for everyone, minority communities, people who are vulnerable, for everyone. And 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 and priorities. So I mentioned earlier, hate crimes are on the increase, 6% nationally, but over 20% here in Virginia. And 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 anti discrimination statutes are fully enforced. And I don't have that same confidence that this administration is going to place civil rights as A high priority. And so 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.

[C]

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 serious 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?

[A]

Oh, 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 were coming to this country, but also frightening because I saw firsthand how families had been separated. 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, 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. And it was hours before they were reunited. And you can imagine I'm a parent and I'm sure anyone out there would understand how understandably distraught she was. But that kind of engagement is really important. And 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. And while she didn't elaborate too much, to me, 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. And so 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. And she spent five days in Turkey. And and finally when she was able to get back, I was fortunate enough to be at the airport to welcome her back. And she remarked that when she got here, she felt loved. And so there's tremendous damage to our reputation being done by this band. But when others see the kind of support and the outpouring that happened, it really makes a difference. And in their lives, it makes a difference to policymakers. And it is really important for people to continue to stay engaged at every level.

[C]

Mark Herring is Virginia's attorney general. And I thank you so very much for your time on AMICUS today.

[A]

Well, thank you for having me.

[C]

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. But in general, the thing to think about going into this case is whether the border itself acts as a kind of quote 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.

[B]

Hi, Dalia. Thanks for having me.

[C]

And I want to start I have so many things, so many things for you. But I want to start with Hernandez versus 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. But let's talk about Hernandez. And I want you to just set the table for us because there is a huge question of facts on either side of this case. So tell us the facts as laid out in the brief filed by Hernandez's family.

[B]

Sure. So in 2010, Sergio Hernandez, who's a 15 year old boy, was playing with his friends at the border in El Paso, Texas. And 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 sort of scamper back. Maybe not the smartest game to play, but that's what they were doing. And to just set the stage, Dalia. There's a kind of culvert, a cement area where the dry Rio Grande river would have run, and that separates the two countries. And so there's this area that's kind of a no man's land between the two countries. And 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 US 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. And unfortunately, this is not an isolated incident. There have been 10 border shootings like this in recent years, about a couple every year. And 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. And so it really tears at the fabric of these communities. Now.

[C]

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. Right. So there is a. Definitely their side is not that an innocent 15 year old was playing a game in a culvert. Right?

[B]

Yeah, there's definitely a factual dispute, and I think that's what we have trials for. But 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? And I'd also just say to their set of facts, just, you know, 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.

[C]

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.

[B]

Sure. So extraterritariality is a big word that I'm sure only lawyers use. But what it means is, does the Constitution apply outside of US Territory, or does it simply follow the flag and stop at our borders? And so that is a pretty central question in this case, and surprisingly, it's not one that's terribly well settled in American constitutional law. In the 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. And the Supreme Court held in an important case called Boumedienne, that the Constitution would apply, that we have a kind of practical, functional analysis that determines when constitutional protections apply to people who are not US Citizens, who are not in the United States. But 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. And so 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 warrant before you search people, people to a house in Mexico, because this person was not among the people covered by the Fourth Amendment. And we're not going to imply the kind of practical analysis that the Court applied in Boumedienne. And so one of the things the Court is going to have to do here is reconcile those two approaches. And 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 Boumedienne.

[C]

So when this case gets to the Fifth Circuit Court of Appeals, the Hernandez family actually loses. Right. The Fifth Circuit rejects the test you're suggesting, and they go to this older test that you're citing. Verdugo Orchidas.

[B]

Right.

[C]

What does that mean? Did the Fifth Circuit just get it wrong, or do you think that there's some way to mash together these two tests, and both of which, I think you're quite right, depend on Anthony Kennedy. Is it necessary for the Court to completely take the Boumidienne 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.

[B]

Well, I think Boumedian is, you know, 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? And so 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?

[C]

And.

[B]

And 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 and in Mexico. And that's what Justice Kennedy said in that case. I mean, 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. And how would that apply, for example, to the war on terrorism and all sorts of other law enforcement activities that US Agents engage in worldwide?

[C]

Deepak, I want to give you a chance to talk about. There are 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?

[B]

Sure. So 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. And the idea is to protect officers. You want officers to not be. Or the court wants officers to not be so afraid of liability that they won't be able to do their jobs. And so 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. And so 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. So in this case, Agent Mesa, the Customs and Border Patrol guard who committed this shooting has asserted a qualified immunity defense. But 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. So 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. And 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? And so if it were an American citizen and he shot, there's no question that would be a use of unjustified deadly force. And so 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 unconstitutional, clearly unconstitutional, had the victim been a US Citizen.

[C]

And 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? I mean, 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?

[B]

Yeah, I think that's absolutely right. I mean, the court couldn't have known when it took this case how events in the world were going to play out. But it is sort of 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. And 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. And 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.

[C]

And 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 claims about what they claim describe as, quote, 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?

[B]

Yeah, absolutely. I mean, this is an agency that has become really unaccountable because a lot of its actions either cannot be or very difficult to test in the courts because it has a culture, a 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. And I think the court, given current events, I'm hopeful that they will recognize that that needs to happen. And 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. And I'm hopeful that that will affect the way the court sees the case. I mean, 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.

[C]

And yet I think the other side will claim, and it seems to me with some. 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 US Constitution. Right. 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.

[B]

I just, you know, we will hear those concerns, but I think they're entirely unfounded. And, you know, 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 US Soil, so it's domestic conduct entirely, should be subject to judicial review under circumstances where, if the victim were a US Citizen, everyone would agree that there would be an egregious constitutional violation. That is not too much to ask. And 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 sort of the apex of presidential power.

[C]

Before we leave, Hernandez, I want to ask you one more question. And it's the least fun game we play here on amicus, but it's what does it mean that there's the possibility of a 44 tie? What does it mean? I think you've said, and you're right, all eyes are on Justice Kennedy, maybe more so than in many other. It took the court a long time to determine whether to grant this case. So what does it mean that there may be a possibility of a hamstrung 44 court next week?

[B]

Well, you know, I mean, I do think that the court thought about that when they decided whether to grant the case. And 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. And so I think one way of reading that is that it's not a good sign for us because we were not asking that question. I think 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 full complement of justices. You had Justices Kagan and Sotomayor recused, and 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.

[C]

And it might only be Anthony Kennedy, as it's often the case. Deepak, you are a man of many, many hats. And so 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 that lawsuit was all about and what emoluments even means?

[B]

Sure. So 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 kind of 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. So 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. And 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. And 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.

[C]

Now, this is the lawsuit for folks who can remember way back to January that was filed by cru, 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 CRU has standing right to even get into court. Can you answer to that for one moment?

[B]

Sure, yeah. And I think there are people who have criticized Cruz standing who haven't actually looked at the relevant case law. And 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 3 standing on the organization. It's injured because it's had to reallocate its resources. Similarly, CRU 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. And there is precedent in the Second 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. So that's the theory of standing. And I think CREW does have standing. But I think it's important to emphasize that CREW isn't the only kind of plaintiff that could have standing. And we are hearing from a variety of people who think that they may have standing. And we're considering those options. And there's always the possibility of amending a complaint to add plaintiffs. So 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 that this was a constitutional violation that started on Inauguration Day. But that doesn't mean that Cruz 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.

[C]

Talk a little bit about just developments even from this week. Newsweek is breaking news every day about Trump involvement in Azerbaijan, in the Philippines. Just on Thursday, we're hearing about a Chinese trademark is 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 snuff box, right, or some horses. Those are the emoluments, the traditional emoluments problems. Why is this Chinese trademark story potentially relevant?

[B]

Well, because what it shows is that Donald Trump's vast holdings are presenting these pretty clear opportunities for corruption. I mean, 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. And then, lo and behold, after he takes office, he receives the trademark protection in China. Now, 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 a president. But I think that's the whole point of ethics and corruption standards, is that they are 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. And 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 and 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 know, 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, and these buildings have his name emblazoned on them. So they become targets for terrorism. And then what happens? Does the United States government protect the private business interests of the President? I mean, 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. And they should be loyal only to the best interests of the American people.

[C]

And 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.

[B]

No, it really just doesn't cut it. Because the question is, what are the President's financial interests? And 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 tables. You're right.

[C]

Yep.

[B]

I think a lot of us assumed that those folders were empty. But 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. And I think that doesn't hold up to even the slightest scrutiny, because built into any kind of fair market exchange is some profit. 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. So they're actually deliberately cultivating foreign government business.

[C]

Before I let you go, I have to ask you a question that is the one that I think about 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. And I think that's the recipe for crazy. But 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.

[B]

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. So on Wednesday night, the House Judiciary Committee marked up and sent to the full House a bill that will effectively kill class actions. And there is virtually no reporting or discussion about it or public attention about it, as far as I can tell. And 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. But because of the chaos, I think this chaos is being used as an excuse to ram through a whole lot of things. And there are other pieces of legislation, legislation about the way regulations are written, the way the whole administrative state functions that are, you know, these are very, very serious pieces of legislation. And they just are not getting the kind of public attention they deserve.

[C]

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

[B]

Thank you. Thanks for having me.

[C]

And that is going to do it for another episode of Amicus. We are so loving your feedback right now about our recent shows and we are eager to hear what you're thinking about and what you thought about today's episode. You can always send us [e-mail] or you can leave us a comment at facebook.com amicuspodcast and if you're feeling generous, you can leave a few nice words in a review on our itunes page. Just search for amicus in the iTunes store and click on the Ratings and Reviews tab. It is one of the very best ways to help other people find out about this show. And if in these heady days of constitutional challenges and legal hijinks, your appetite has been wet for more of this kind of legal analysis, you can find many, many, many hours of former amicuses in the archive on our show page. You'll find [e-mail] amicus if you're a Slate+ member, you'll also find show transcripts there. And if you're not, you should probably sign up to become one. You can sign up for a free trial [e-mail] AmicusPlus transcripts take a few days to post. A big thank you goes out this week, as always, to to the Virginia foundation for the Humanities, where our show is taped. Tony Field produced the show with help from the wonderful Camille Mott. Steve Lichtai is our executive producer. Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at Panoply fm. I'm Dahlia Lithwick. We'll be back with you soon with another edition of Amicus.

[B]

It.