New York Times

Gorsuch Talk At Trump Site Generates Ethical Issues

August 18, 2017

by Adam Liptak

WASHINGTON — Justice Neil M. Gorsuch, President Trump’s Supreme Court appointee, is scheduled to address a conservative group at the Trump International Hotel in Washington next month, less than two weeks before the court is set to hear arguments on Mr. Trump’s travel ban.

Stephen Gillers, an expert on legal ethics at New York University, questioned the justice’s decision to speak at the hotel, which is at issue in lower-court cases challenging the constitutionality of payments to Mr. Trump’s companies.

“At this highly divisive political moment, especially as many Trump decisions are likely soon to reach the court’s docket, one just days later, a healthy respect for public confidence in the court should have led Justice Gorsuch to demur,” he said.

Justice Gorsuch declined to comment, said Kathleen L. Arberg, the Supreme Court’s public information officer.

Experts in legal ethics were divided about whether Justice Gorsuch’s appearance at the hotel was appropriate.

Steven Lubet, a law professor at Northwestern University, said that Mr. Trump’s ownership interest in the hotel was problematic but that Justice Gorsuch’s appearance there was not.

“It is unfortunate that President Trump has decided to disregard basic conflict of interest principles,” Professor Lubet said, “but I do not see anything wrong with Justice Gorsuch speaking publicly at the hotel.”

Deborah L. Rhode, a law professor at Stanford, disagreed.

“This is not rocket science in the ethical world,” she said. “It doesn’t get much more basic than this.”

“It’s a terrible signal for this group to be holding their meeting at the Trump International Hotel and for a Supreme Court justice to legitimate it by attending,” she said. “It just violates basic ethical principles about conflicts of interest.”

Richard W. Painter, a lawyer for people and groups suing Mr. Trump over what they say are violations of the Constitution’s emoluments clauses, declined to comment on Justice Gorsuch’s scheduled speech, saying the status of the hotel was at issue in the litigation. The emoluments clauses bar federal officials from accepting compensation from foreign governments and payments from the federal government or the states beyond their salaries.

The Justice Department has argued that the emoluments clauses do not bar ordinary commercial payments to Mr. Trump’s companies, and Mr. Trump’s defenders say he has taken measures to distance himself from his holdings.

Justice Gorsuch is scheduled to deliver the keynote address at the “Defending Freedom Luncheon” on Sept. 28 to celebrate the 50th anniversary of the Fund for American Studies, which says it supports “principles of limited government, free-market economics and honorable leadership” through academic and fellowship programs.

“We’re an educational group that teaches the founding principles set out in the Constitution,” said Steve Slattery, the group’s executive vice president.

Mr. Slattery said Justice Gorsuch had not been involved in the decision to hold the lunch at the hotel. “He had no role in it,” Mr. Slattery said. “Of course, he was told in the invitation where it would be held.”

Appearances by justices before groups with political leanings are not unusual. Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, all members of the court’s liberal wing, have spoken before the American Constitution Society, a liberal group.

On the other hand, Justices Clarence Thomas and Samuel A. Alito Jr., members of the court’s conservative wing, have addressed the Federalist Society, a conservative group.

There is very little crossover. “I could find no record of a sitting liberal Supreme Court justice addressing the Federalist Society annual meeting or a sitting conservative Supreme Court justice addressing the American Constitution Society annual meeting,” Richard L. Hasen, a law professor at the University of California, Irvine, wrote in a 2016 study.

Professor Gillers said that talks by justices before groups with ideological agendas have become accepted.

“We’ve reached an ethical rapprochement on appearances by justices,” he said. “On one hand, they can speak to any group they wish, even limited only to those with a right or a left legal profile. On the other hand, their appearance must not be used to raise money or increase membership — a limit that is easily evaded.”

The place and time of Justice Gorsuch’s speech next month presented different questions, Professor Gillers said, adding that the justice should have been more sensitive to how the public could interpret his appearance at the Trump hotel not long before arguments in the travel ban case.

“We have to rely on self-restraint,” Professor Gillers said. “Not everything justices can do is something they should do.”