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 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 post has been updated to correct an inadvertent error.  The Fund for American Studies is paying for the luncheon, not the Constitutional Accountability Center.  Thanks also to Tamara Piety for pointing out the need for clarity on the conflict of interest statute.

Comments

[Deep State Special Legal Counsel]

I see their point and it is valid...It isn't about Justice Gorsuch's impartiality, but perception and symbol. We don't hold court in a Winnebago or a Home Depot shed festooned with video gaming machines. Imagine for a moment if Justice Kagan were to give a talk on Global Climate Change at Standing Rock or federalism at the Malheur National Wildlife Refuge. There would be a hue and cry from the Right...it would be deafening....

[[M][a][c][K]]

"Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities - An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired."

Code of Conduct for United States Judges

Which means Steve that it's not a question of whether personally you think Gorsuch's conduct is improper, but rather whether you think Wydra, Gillers and Rhodes are "unreasonable minds." So, why is their argument unreasonable?

[Steve Lubet]

It takes more than criticism from several reasonable people to make something an impropriety, Mack. Or to put it another way, the burden is on those who call it improper to explain why their views are correct in concluding that Justice Gorsuch's "honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired." It isn't a question of whether Gillers and Rhode have reasonable minds (they do, of course), but rather whether they have made a case against Gorsuch's honest, integrity, or fitness on the basis of his hotel speech.

I think they are wrong for the reasons stated in my post.

[PaulB]

MacK, because the above mentioned professors are political activists? Now if someone can show me that one of them was publicly critical of Justice Ginsberg when she went off the reservation during the election season when she talked about Trump, I'd reconsider. But since Gorsuch wasn't the one who chose the venue at which the conference was held, I'd encourage us to do less of these "appearance of impropriety" shots at our political opposites and focus on substantive issues.

[[M][a][c][K]]

And I answer that the Canon uses the expression "reasonable minds" and "the appearance of impropriety." It does not say that the judges impartiality be impaired, but that he/she should avoid activities that might give rise to that impression in the minds of reasonable people. It also does not prescribe all reasonable people, just some.

On its face, what canon means is that the church needs to be concerned about appearances as much as fact. So the basic question is why do you think it is unreasonable for someone to suggest that Gorsuch's behaviour presents the appearance of impropriety, of prejudging for example the emoluments question.

It's not a question about your reasons for this, but rather a question of whether you can consider that someone might reasonably see Gorsuch as not impartial, as biased on an issues where there is a strong possibility he'll have to consider them. That the commentators regard Gorsuch as Trump's hand chosen judge makes things if anything worse.

[Tamara Piety]

Steve - You write that "but his continuing ownership of the hotel does not violate any law." But isn't this precisely the question the emoluments clause litigation raises, whether his ownership of the hotel, and perhaps more crucially, his refusal to distance himself from the management of it violates a law, to wit, the Constitution? (I am not sure the operation question is more or less crucial given that one option to improve public confidence, if he refused to divest, would be to more clearly distance himself from its operation; OTH, given that it is a business, not a passive investment, and that it is the sort of business that is so intimately associated with his personal brand that it is difficult to imagine that there is any meaningful way for him to distance himself from running it, perhaps this is the less crucial question than divestiture.) I suppose it depends on what you mean by " a law" and whether a case a first impression, even if it is decided against him, announces a principle so clearly established that it can be said in advance of the decision to be "illegal." But on that score it is relevant that this represents a breach of previous practice or understanding of the conflict of interest standards such that it hardly needed to be explicitly forbidden: it was understood be all to be forbidden. No one needed to say it because it was the "previous conflict of interest" standard. It is interesting how Trump's ignorance of those standards (or perhaps it is just disdain for them) can translate into throwing the standards into doubt rather than casting doubt on the legitimacy of his presidency. Given his politics and his record, it seems like this is the sort of thing one might well wish to avoid if one expects that this very hotel is likely to be the subject of controversy in a case he will hear in the future, even though one assumes he had no role in choosing the venue. By starting with the "violating no law" you are assuming the fact to be proven.

[Deep State Special Legal Counsel]

Brackets,

Your comments are excellent. The language "appearance" of impropriety is what I was searching for.... Especially in this climate, particularly with this President and his tendency to undermine the Press and Judiciary, Article III actors should distance themselves from Article I entities.

[Steve L.]

You are right, Tamara. I should have said that it does not violate the conflict of interest statute, which does not apply to the president.