In an open letter to Justice Neil Gorsuch, Common Cause has become the most recent organization to call on him to cancel his forthcoming appearance at the Trump International Hotel, arguing that his scheduled address to The Fund for American Studies (TFAS) “raises ethical matters that bear on the public’s confidence in the Supreme Court and its impartial administration of justice.” I explained here why Gorsuch’s luncheon speech will not cause ethical problems, but the Common Cause letter makes a couple of new arguments that are worth considering.
First, Common Cause suggests that the event might be a fund raiser, which would indeed violate Canon 4 of the Code of Conduct for United States Judges, as may have been the case when Justice Alito addressed the Claremont Institute earlier this year. (The Code, which is applicable to the lower courts, has not been adopted by SCOTUS, but Chief Justice Roberts has announced that he and his colleagues look to it for guidance.)
In this instance, however, Common Cause should have done some homework first. As Slate’s Mark Joseph Stern easily learned by asking the TFAS president, “The luncheon is free, limited-space and invite-only. We’ve had a number of people inquire about how to attend the luncheon and we have told them that it is an invite-only event and that they cannot purchase seats.” In terms of fund-raising, the event is no different from other justices’ appearances for The Federalist Society or the American Constitution Society; it might enhance the organization’s general reputation, but it does not violate Canon 4.
Next, Common Cause asserts that the venue itself is the problem:
The Trump International Hotel as the venue for your speech is also deeply troubling. President Trump has substantial financial interests in the hotel and its success or failure. Your scheduled appearance has already attracted significant publicity for the hotel and President Trump’s businesses. The Trump hotel is the subject of at least three federal lawsuits alleging violations of the Emoluments Clause —cases that you may hear. The Trump hotel has also been subject to controversy due to its lease with the General Services Administration, which prohibits elected officials from benefiting from the lease. Moreover, the Trump hotel is closely tied to the President’s re-election campaign and other partisan political causes, including fundraisers that involve payments to the President’s companies from which he has refused to divest. These substantial conflicts of interest undermine principles of judicial independence and high ethical standards that Americans expect you to uphold as an Associate Justice of the Supreme Court.
The idea that Gorsuch is attracting publicity, and therefore business, for Trump’s hotel is trivial. Trump himself, of course, has trampled on ordinary conflict of interest principles, and the president is not subject to the federal conflict of interest statute, but the revenue from a small luncheon will not even amount to a drop in the bucket. As to publicity, well, Common Cause has probably done more to publicize the event that TFAS ever did, given that its invite-only nature means it was never openly advertised. Taylor Swift sings “Look What You Made Me Do,” but Common Cause cannot very well issue a press release about the event and then complain about the publicity.
Nor do the pending Emoluments Clause cases present a problem. The Constitution’s Emoluments Clauses prohibit the president from accepting certain payments from governments – either foreign or U.S. – but the TFAS is a non-profit organization which would not fall under either emoluments clause no matter how they are interpreted.
Finally, the asserted tie between the Trump hotel and “the president’s re-election campaign and other partisan political causes” may be the most attenuated claim of all. At most, it involves Gorsuch speaking in a location where there may be campaign events on future dates. Perhaps Common Cause believes that President Trump taints everything he touches, but there is no standard of judicial ethics that requires justices to boycott venues because of their association with a political figure.
There are plenty of ethical problems involving the Trump administration, but this is not one of them.
[Cross-posted from The Faculty Lounge]