Should Gorsuch Speak At The Trump Hotel In DC? It’s Complicated.

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Kevin Daley Supreme Court correspondent
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Justice Neil Gorsuch will speak in September to a conservative group at the Trump International Hotel in Washington, D.C. and some government watchdogs have cried foul.

Gorsuch will address The Fund for American Studies’ (TFAS) Defending Freedom Luncheon in late September. The appearance raises two ethical issues. The first concerns a longstanding rule precluding federal judges from participating in fundraising activities. The latter concerns the venue itself, which is owned by President Donald Trump and is currently the subject of litigation that could one day appear before the Supreme Court.

Common Cause, a left wing advocacy group, sent a letter to Gorsuch Tuesday encouraging the justice to withdraw from the event.

“Your participation in the luncheon raises ethical matters that bear on the public’s confidence in the Supreme Court and its impartial administration of justice,” the letter reads.

TFAS President Roger Ream told The Daily Caller News Foundation that the organization has not and will not raise funds in connection with Gorsuch’s appearance.

“I can assure anyone who is interested, including Common Cause, that the luncheon we are sponsoring with Justice Gorsuch is not being used to solicit donations,” he told TheDCNF. “It’s a limited invitation event and it’s free.” Attendees will include members of the TFAS boards of trustees and regents, as well as the TFAS President’s Society, a small group consisting of longtime supporters and volunteers.

Ream added that the justice’s chambers instructed the organization not to publicize the event for development purposes when first approached about the luncheon.

Common Cause further argues that TFAS may be effectively fundraising off of the justice’s appearance, to the extent that it may motivate one to give a donation large enough for inclusion in the President’s Society tier of support.

“If a financial contribution to TFAS is a criterion for ‘President’s Society’ membership, then TFAS is using access to your keynote address as a fundraising incentive,” the letter argues.

However, the organization says President’s Society membership is not predicated on financial support.

“The President’s Society consists of top TFAS leaders, supporters and volunteers who have made our programs possible over the past 50 years,” TFAS says. “It is not one of our designated giving clubs.”

Alleged financial improprieties aside, Common Cause also raised concerns about the venue, as the Trump International features prominently in three lawsuits concerning the scope of the Constitution’s emoluments clause. Several left-leaning watchdogs allege the president’s continued ownership of Trump-branded companies and properties, including the hotel at issue here, violates anti-corruption provisions in the Constitution. As these cases may reach the high court, Common Cause argues his appearance at a Trump property is inappropriate.

“The Trump Hotel is the subject of at least three federal lawsuits alleging violations of the emoluments clause—cases that you may hear,” the letter says. “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.”

Ream told TheDCNF the venue was selected because TFAS has worked with the Trump Hotel’s catering manager, David Anderson, in the past. Anderson came to the new Trump property by way of the Four Seasons in Georgetown, where the organization holds an annual dinner. Furthermore, arrangements for the luncheon were made well in advance of Trump’s inauguration.

Northwestern University Pritzker School of Law Professor Steven Lubet, a legal ethics expert, argues Common Cause’s theory of conflict is too attenuated.

“Any relationship between a single event and the emoluments clause litigation is far too tenuous to implicate Gorsuch’s impartiality,” he wrote at the Legal Ethics Forum. “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.”

He noted other legal ethicists have taken the opposite position.

Fix the Court, a nonpartisan Supreme Court watchdog, argued the appearance is inappropriate in the sense that Trump is currently a litigant before the Court. The president is the named petitioner in IRAP v. Trump, the travel ban case which the justices will hear Oct. 10. The group has criticized other justices for appearing at events which may cause one to reasonably question their impartiality, such as when Justice Ruth Bader Ginsburg officiated at a same sex wedding prior to the Obergefell decision.

“The idea that a justice can appear at this type of event where you have a hotel that has the same name as a litigant coming before the Court in a few weeks is really unfortunate,” the group’s executive director Gabe Roth told TheDCNF.

“The bottom line here is that an appearance like this looks bad,” he added. “The American people are right to want to hold the justices to the highest ethical standard as possible.”

Roth noted such conflicts could be avoided if Supreme Court justices were bound to a clear ethical code. Though the Code of Conduct for United States Judges binds most federal judges, it does not apply against the justices.

“It shows that there’s a need for better ethics rules at the high court if something like this can happen without any consequences,” he said.

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