The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, a New York Times article suggested that the location of this luncheon—the Trump International Hotel—raises ethical issues because the Supreme Court will soon hear challenges to the Trump administration's "travel ban" and because lawsuits have been filed alleging that the Trump Hotel's business with foreign governments violates the Constitution's foreign emoluments clause. According to the Times article, "Experts in legal ethics were divided about whether Justice Gorsuch's appearance at the hotel was appropriate."
On Monday, the Post published a column by Elizabeth Wydra of the Constitutional Accountability Center, ratcheting up the charges against Gorsuch. Wydra accused Gorsuch of deciding "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 about the meaning of the Constitution's text" and called upon Gorsuch to withdraw from the event.
Northwestern University law professor Steven Lubet has looked at the ethics issues involved with Gorsuch's willingness to speak at the TFAS luncheon and finds the allegations wanting. In a post at Legal Ethics Forum (cross-posted at The Faculty Lounge), Lubet writes:
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 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).
As Lubet notes, the TFAS event does not implicate the emoluments clause litigation in any way. The emoluments clauses do not prohibit the president from owning or profiting from a private business. These clauses prohibit the receipt of emoluments from governments. TFAS is a private organization. The connection to the "travel ban" litigation is even more tenuous.
The logic of the argument against Gorsuch's speech is that a justice should not agree to speak before a private group at an event that is held at a venue that may be the subject of separate litigation that could reach the Supreme Court. I find this wholly unpersuasive. Under this logic, a judge or justice could not speak at any event hosted by a private organization at a hotel at which there is a pending labor dispute under the NLRA. After all, such cases often end up in court.
What actually matters in this case is that the sponsor of the event (TFAS) is not a party to any litigation likely to reach the court. Nor is the lawfulness or propriety of this event implicated in any litigation under way. It would be one thing were the event sponsored by a foreign government or perhaps even the Trump Hotel itself, but neither is the case here. Writes Lubet: "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."
As Lubet notes, this is another example of the selective and somewhat-partisan invocation of judicial ethics concerns.
During the Obama administration, conservatives argued that Justice Ginsburg should recuse herself in 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.