Trump and the Judge: Cynical Politics, Not Law and Not Racism

To hear many commentators tell it, Donald Trump claims that an American-born judge, by dint of nothing other than his Mexican ancestry, should be deemed so biased against him that the judge should be recused from a civil fraud case in which Trump is a defendant. Indeed, Trump is said to have dug himself an even deeper hole last weekend, adding Muslim-American judges to the class of jurists before whom we are to believe he cannot get a fair trial.

For present purposes, I am putting the Muslim judge issue aside because it is hypothetical – i.e., while Trump’s meanderings about the judge of Mexican descent involve a concrete case, I know of no actual case involving the litigious Trump and a judge who happens to be Muslim.

Moreover, to avoid further elongating this column, I will not address whether, in analyzing an actual legal claim of judicial bias, a judge’s race, ethnic ancestry or religious affiliation might become relevant due to that judge’s political activism. Trump surrogates insist that, to the extent the candidate has invoked a judge’s Mexican descent or (hypothetically) Islam, he was not relying solely on ethnic or religious status, but on such status in conjunction with political activism on behalf of Mexican illegal aliens or political Islam’s sharia law agenda. There is a lot to be said for this argument, which reminds us why judges – who are obliged to maintain the objectivity and public integrity of judicial proceedings – should resist political activism. In any event, this is a complex legal issue and it deserves separate consideration.

Instead, the purpose of this column is to focus on two rudimentary questions that I do not believe have been adequately addressed:

First, did Trump do it? That is, has he posited an actual legal claim – a noxious and dangerous one – that mere ethnic heritage can disqualify a judge from presiding over a legal controversy? Or is Trump, as I conclude, making an unsavory political argument?

Second, is Trump’s argument really about the purported bias of the judge in question, Gonzalo P. Curiel of the federal district court in Southern California? Or is Trump, as I conclude, attempting – however cynically – to draw the sting of disclosures regarding the civil fraud case involving “Trump University”?

To cut to the chase: Is Trump trying to discredit the judge, not out of racism or an honest belief that Judge Curiel is violating his due process rights, but in hopes of discrediting the underlying Trump U shenanigans by persuading people that it is a biased judge, rather than damaging evidence, that is making him look bad? Does Trump fear that his critics will otherwise use the Trump U disclosures against him the same way Hillary Clinton’s detractors have exploited disclosures about her email improprieties to damage her presidential bid?

Last week’s intentionally provocative tirade against Judge Curiel was classic Donald Trump: personal, bracing and slippery. The mogul gratuitously invoked the judge’s Mexican heritage, but not so much to smear Curiel as to damn him with faint praise. As sure as night follows day, the presumptive GOP presidential nominee’s remarks were inflated by the media into a claim that all American judges of Mexican descent should be deemed biased against Trump.

Whatever Trump may have meant, that is not what he said.

Of course, this is how it goes with Trump. His lean and mean presidential campaign, vastly more bang-for-the-buck efficient than that of conventional pols, thrives on the showman’s sixth sense of what hot buttons stir his base. This translates into ratings, the bow that enables him to play the press like a fiddle even as journalists grouse about him. So sure, this week’s Trump coverage is about racism. With Trump, though, it’s never about what it’s ostensibly about. It’s about Trump. That is his low genius.

Trump verbally attacked Curiel not in court but at a political rally. The distinction, we shall see, is significant.

In the court case, in which Curiel presides and the putative GOP presidential nominee is a defendant, plaintiffs allege that Trump U was a fraudulent scheme. The trial has now been postponed until after the election, meaning that for the next five months, unflattering disclosures of evidence against Trump will be selectively leaked in drip, drip, drip fashion – just like disclosures in the Clinton email caper, a far more serious matter, but one the Democrat-media complex hopes its Trump U coverage will nullify.

Trump has vowed not to settle the case. Maybe that’s because he really believes the case is nonsense. Or maybe, just maybe, he frets that settling would (a) be spun as an admission of guilt, and (b) undermine his campaign’s portrayal of Trump as a tough-as-nails fighter who never quits, hits his detractors back twice as hard, and always wins.

Bottom line: Trump has a political need to discredit the Trump U case. He does not have an actual legal claim of judicial bias; instead, he finds it politically expedient to attack the judge. This is far from unheard of in high-profile cases in which a celebrity litigant believes there will inevitably be negative rulings. The point is to get ahead of the news curve in order to shape the public’s perception of the case and minimize the reputational damage.

It should go without saying that, as a lawyer who believes in legal ethics and the judicial process, I find such a strategy reprehensible – even allowing for the fact that it is lawyers, not clients, who are bound to affirm the dignity of the court. And ethics aside, a litigation strategy that elevates politics over legal considerations is self-defeating. There is no worse approach to litigation than effrontery toward the judge.

In the real world, however, the politics is sometimes more important to the litigant than the law. That is true here. Trump is running for president. Monetarily, the civil case is small potatoes in comparison to his fortune, and the significance of winning the case pales beside his political ambitions. He can afford to lose. Therefore, the risk that angering Judge Curiel will redound to his legal detriment is easily outweighed by the risk that the electorate will turn against him politically if the Trump U case appears to be real fraud, not – pardon the pun – trumped up bunkum.

Judicial bias claims must be analyzed differently depending on whether they play out in a legal court case or in the political court of public opinion. Trump’s media critics have conflated these discrete realms. To grasp the game Trump is playing, we must separate them. Let’s start with the law because it is governed by constitutional and jurisprudential principles, making it easier to navigate than the “anything goes” world of politics.

The following principle ought to be indisputable (though, in a society intimidated by the Left’s race obsessions, it is anything but): To apply the law in an intentionally discriminatory manner, based solely on ethnic ancestry (or, for that matter, religious affiliation or race), violates the constitutional right to equal protection under the law. It is a condemnable practice. It should have no place in the American legal system.

Besides principle, there is practicality to consider: Claims of judicial bias based on nothing more than a judge’s ethnic heritage (or religious affiliation, or race) must not be indulged because, if they were, the justice system could be ground to a halt. All a bad-faith litigant would have to do to trigger recusal of a judge – and thus endlessly delay a case that was not going well for him – is (a) insult the judge’s ethnicity, religion or race, and then (b) claim that judicial bias must be presumed – through no fault of the judge’s, based solely on the litigant’s own bloviating. Plainly, that cannot work.

Consequently, to warrant a judge’s recusal, there most be some action on the judge’s part – something in the behavior of the judge, not his ethnic (religious or racial) status – that reasonably calls the judge’s impartiality into question. As a matter of law, then, if journalists are correct that Trump is claiming Judge Curiel should be deemed biased against him solely because of Curiel’s Mexican heritage, that claim would be as frivolous as it is vile.

But did Trump really make such a claim? Again, we must separately consider the realms of law and politics. In the legal arena, the answer, clearly, is no, notwithstanding media contentions to the contrary.

Rudimentary point: When a litigant believes there truly is a basis to seek a judge’s recusal on grounds of bias, the litigant files a formal motion to recuse the judge. With the exception of Chapman Law School’s ever astute Ron Rotunda, few if any commentators have noted that Trump has filed no such motion. This confirms that Trump is engaged in provocative rhetoric for political purposes. He is trying to shape public opinion about the Trump U case. All the chatter about Trump’s advancing a controversial and dangerous legal proposition is so much hot air. Litigants advance novel legal propositions in court, not at campaign rallies or on political talk shows.

Again, I don’t want to be misunderstood. I am not saying this gets Trump off the moral or ethical hook. If he really claimed that a judge would be unfit to sit on a case solely due to ethnic ancestry, this would evince casual bigotry regardless of whether it amounted to a perverse legal claim.

But is that really what Trump did? I don’t think so … although it is certainly fair to conclude that Trump was being demagogic – nothing new there.

Trump raised Judge Curiel’s Mexican heritage as a dog-whistle. He did not contend that Mexican descent rendered Curiel unfit to preside over the Trump U case. Carefully parsed, Trump’s remarks were offered in two stages: an attack on the judge that did not allude to his ancestry; then a mere mention of Curiel’s Mexican heritage that was favorable on the surface but cynical under the circumstances.

In attack mode, Trump said:

The [Trump U] trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily…. Everyone says it, but I have a judge who is a hater of Donald Trump, a hater. He’s a hater. His name is Gonzalo Curiel.

Nothing about Mexico here (except for what little, if anything, may be inferred from the mere invocation of Curiel’s name). Instead, Trump portrays the Trump U case against him as so blatantly baseless that any competent, impartial judge would have thrown it out of court months ago. That Judge Curiel has failed to do so, we are invited to believe, can only be explained by Curiel’s personal animus against Trump. That may be a misleading, obnoxious argument; it is not a racist argument.

Trump then moved on to gratuitous mention mode. He made reference to Curiel’s ancestry in a manner that, far from an attack or a claim that Mexican heritage equals anti-Trump bias, was ostensibly laudatory:

The judge, who happens to be, we believe, Mexican, which is great, I think that’s fine. You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs, okay?

Now, was Trump really suggesting that Curiel’s ancestry is a plus? Well, were we born yesterday? Trump was playing to a crowd of ardently pro-Trump, “build the wall” enthusiasts, appeals to whom have consistently featured no small amount of Mexico-bashing and have reliably elicited cheering.

So Trump laid the groundwork for claiming that Curiel was biased against him, but studiously avoided opining on why this was the case. Then he told his audience that Curiel was a Mexican (which is inaccurate; Curiel is an American of Mexican descent), but quickly added (wink-wink) that Mexicans are just wonderful.

The way Trump said it, the invocation of Mexico was apropos of nothing. But he patently invited his audience and the media to connect the dots: Curiel’s Mexican heritage was the source of the judge’s purported animus, which in turn explains the judge’s purportedly indefensible rulings. Did Trump come out and say that explicitly? No. Did he cynically intimate it? Duh …

Naturally, Trump fans play the same game in response: they tacitly connect the dots, but Jesuitically insist that their hero technically said nothing offensive. The anti-Trump media, by contrast, connect the dots loudly and sloppily: They insist that he said what they suspect he meant, rather than what he actually said. But here is the kicker: Trump, meanwhile, basks in publicity that has a dual political benefit: It energizes his fan base and pits Trump against the media. Even for Republicans and conservatives who don’t like Trump, running against the media is as admirable as running against Hillary – assuming there is a difference between the two.

Let’s get real: Donald Trump is not positing a racist legal claim against an American judge of Mexican descent. He is making an unsavory political claim that is designed to draw the sting of fraud disclosures in the Trump U case. And he calculates, perhaps shrewdly in the reality-TV culture he has helped shape, that there really is no such thing as bad publicity.

(Artwork created using multiple Shutterstock.com images.)