Legal Ethics Forum

Common Cause Is Wrong about Justice Gorsuch and the Trump Hotel

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]

Justice Gorsuch at the Trump Hotel [UPDATED]

 Writing in the Washington Post, Elizabeth Wydra argues forcefully that Justice Neil Gorsuch has betrayed his promise of impartiality because he plans to address a conservative group, The Fund for American Studies, in a luncheon at the Trump International Hotel.  According to Wydra, who is the president of the Constitutional Accountability Center, Gorsuch is ethically obligated to stay away from the Trump International because it is at the center of her organization’s lawsuit seeking to enforce the Emoluments Clause of the Constitution.  Because her lawsuit, and others like it, may eventually reach SCOTUS, Wydra asserts that Gorsuch’s lunchtime presentation may indicate a “decision to help a conservative organization put money into the pockets of the president who nominated him — by speaking at the profit-generating property so conspicuously at the heart of a profound legal dispute.”

I disagree.  There is nothing wrong with Justice Gorsuch speaking at the luncheon despite its venue.  Any relationship between a single event and the Emoluments Clause litigation is far too tenuous to implicate Gorsuch’s impartiality.  The justice is obtaining no benefit from President Trump, and the president is obtaining at most a de minimis benefit – and really, not even that – from Gorsuch’s appearance at his hotel.

It is unfortunately true that President Trump has abandoned previous conflict of interest standards that were thought to restrain presidents from cashing in before leaving office, but his continuing ownership of the hotel does not violate any law the federal conflict of interest statute.  Thus, Gorsuch’s lunchtime talk is neither an endorsement nor an acceptance of Trump’s decision, unless one thinks that the very existence of the hotel should be boycotted (which of course, would also be a statement about its legitimacy).

Nor does Gorsuch’s talk reflect at all on the Emoluments Clause litigation, where there are two provisions of the Constitution at issue.  First, the Foreign Emoluments Clause prohibits federal officers from receiving gifts or emoluments from foreign governments without the consent of Congress. The domestic emoluments clause likewise prohibits the president from receiving any payments from state governments, or the federal government, other than his presidential salary.  The Fund for American Studies, which is presumably paying for the luncheon, is obviously not a government of any sort, and consequently there are no arguably prohibited emoluments involved.

People I respect – most notably Steve Gillers and Deborah Rhode – have criticized Justice Gorsuch for speaking at Trump’s hotel, but I think they’ve got it wrong.  At the very most, Gorsuch will be spending a couple of hours at the site of a litigated controversy, which does not indicate any opinion one way or another about the merits of the case.

During the Obama administration, conservatives argued that Justice Ginsburg should recuse herself in the Obergefell v. Hodges because she had once officiated at a same-sex wedding.  Ginsburg rightly ignored the call; officiating at a wedding that was legal in Washington, D.C., said nothing about the constitutional issues in the case.  The same now goes for Justice Gorsuch.  Speaking at the Trump International says nothing about his views on the Emoluments Clause cases, and Wydra’s criticism is unfounded.

NOTE: This article has been updated by correcting an error and making a clarification about the federal conflict of interest statute.

An Unanswered Question from Charlottesville

As posed by me on CNN.com.

Here are the first few paragraphs:

How much longer can decent people serve in Trump's cabinet?

President Donald Trump was not standing alone on the podium when he informed the world that some participants in the Charlottesville neo-Nazi march were "very fine people."

He was flanked by Transportation Secretary Elaine Chao, an immigrant from Taiwan, Treasury Secretary Steven Mnuchin, who is Jewish, and Chief of Staff John Kelly, all of whom did their best to remain stone-faced while their boss veered ever more deeply into apologetics for racism.

As business executives, military leaders, and Republican office-holders join in the repudiation of Trump's statements, one question must be asked: How much longer can decent people continue to serve in Trump's cabinet?

The rest of the piece discusses the resignation and non-resignation decisions of William Jennings Bryan and Edwin Stanton, and the decision of Massachusetts Judge Edward Loring to preside over Fugitive Slave Act cases.  You can read it here.

[cross-posted from The Faculty Lounge]

Section on Professional Responsibility AALS Annual Meeting Events in San Diego Jan. 6, 2018

On behalf of the Executive Committee for the Section on Professional Responsibility, I write to share with you a fabulous day of events planned for the AALS Annual Meeting in sunny San Diego on Saturday, January 6, 2018. Please plan to join us.

8:30-10:15 PR Section Plenary Session – The Ethics of Legal Education
Deans Dan Rodriguez (Northwestern Law) and Andy Perlman (Suffolk Law) as well as Dean Emeritus and Professor of Law Joan Howarth (Michigan State Law) are confirmed speakers, and others will be selected from a call for papers. Proposals are due August 15--details here.

11:30-1:30 PR Section Lunch and Annual Meeting, hosted by the University of San Diego Law School
A bus will depart the AALS hotel lobby at 11:30AM, with lunch beginning at noon, followed by the annual meeting and presentation of the Zacharias Award. The bus will return to the hotel at 1:30PM. USD Law is generously providing this lunch for our section, but you must RSVP in advance no later than November 30 in order to attend.
Please RSVP to Pam Watson: [email protected] with “AALS PR Section Lunch RSVP” as the subject.

3:30-5:15 PR Section Works-in-Progress Session
Proposals are due September 30--details here.