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.