Who’s afraid of Donald Trump? Leading conservative and libertarian legal scholars, to name a few. They see Trump’s attacks on the federal judge hearing the suit against him by former Trump University students as evidence that Trump poses a genuine threat to the rule of law in the United States.
Trump, the presumptive Republican nominee for president, unleashed a rambling, 12-minute tirade against U.S. District Court Judge Gonzalo Curiel on May 27 right as the judge was ordering the unsealing of damning evidence in the suit. The brief clips that have been shown on newscasts cannot convey the total incoherence and utter emptiness of Trump’s attack on a judge he described as “a hater” and a case that he called “a disgrace.”
Legal ethics experts dismiss out of hand Trump’s imputation that Curiel is biased in the case because of his Mexican ancestry. “A judge’s race, ethnicity, sex and the like aren’t grounds for recusal, even if the case directly involves questions that relate to one of those factors,” UCLA law professor Eugene Volokh writes in a post on his blog, The Volokh Conspiracy. And Russell Wheeler, a former deputy director of the Federal Judicial Center and now a fellow at the Brookings Institution, told the Washington Post that Curiel “has been nothing but fair in the case.”
Beyond the point-by-point refutations, Trump’s outburst prompted criticisms couched in ominous terms. In posting a full transcript of Trump’s remarks, the libertarian South Texas law professor Josh Blackman minced no words. “His jaw-dropping comments reflect an utter ignorance about what judges do, and amount to a dangerous attack on the fairness of our court system,” Blackman wrote on his blog.
Among several who commented to The New York Times was Randy Barnett, an outspoken libertarian professor at Georgetown Law School and one of the major architects of the constitutional challenge to President Obama’s health care reform. “You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers,” Barnett told the Times’s Supreme Court correspondent Adam Liptak, “and I doubt he has any awareness of such limits.”
David Post, a retired Temple law school professor now affiliated with the libertarian Cato Institute, was similarly concerned. “This is how authoritarianism starts,” Post remarked, “with a president who doesn’t respect the judiciary.”
Trump is facing the possibility of a multimillion-dollar judgment in a class action brought by former students who think they were fleeced by the promised instruction in the Trumpian arts of real-estate dealmaking. Trump chose a rally in San Diego, where Curiel’s court sits, to question the judge’s impartiality significantly, not in a formal, substantiated motion that the judge recuse himself.
“We are in front of a very hostile judge,” Trump said. The audience booed as Trump noted that Curiel is an Obama appointee. He then went on to say that Curiel “has given us ruling after ruling, negative, negative, negative” but with no specifics cited.
Found in the depositions released under Curiel’s order was a blunt description by a former Trump U sales manager. “I believe that Trump University was a fraudulent scheme,” Ronald Schnackenberg wrote, “and that it preyed upon the elderly and uneducated to separate them from their money.”
Curiel ordered the release of the documents in response to a motion by the Washington Post, which argued that Trump’s presidential candidacy made the depositions a matter of public interest. In his order, Curiel noted that Trump had publicly raised questions about proceedings in the case.
In the San Diego remarks, Trump raised Curiel’s Mexican ancestry in the insidiously backhanded way that is now a hallmark of his campaign. He refers to “the judge, who happens to be, we believe, Mexican, which is great, I think that is fine.” With no difficulty whatsoever, reporters and commentators quickly noted that Curiel is in fact American by birth: born in Indiana to immigrant Mexican parents and then educated at Indiana University and IU’s law school.
Beyond his birth and degrees, Curiel gave evidence of devotion to country in 17 years as an assistant U.S. attorney in San Diego. There, he took on Mexican drug cartels vigorously enough that he was once targeted for assassination and subjected to security precautions for a while. His judicial career began with appointment to a state court bench by California’s Republican governor, Arnold Schwarzenegger, and then advanced with Obama’s appointment to the federal bench in 2012.
In interviews, Trump and others on his behalf have tried to flesh out some basis for questioning Curiel’s impartiality. The bill of particulars is thinner than thin for example, Curiel’s membership in a Latino bar association. As far back as February, Trump citied his stance on immigration to question Curiel’s role in the case. “I think it has to do with perhaps the fact that I’m very, very strong on the border,” Trump said then. “Now, he is Hispanic, I believe. He is a very hostile judge to me.”
Some elected Republican officials are rejecting Trump’s attack. House Speaker Paul Ryan called Trump’s remarks “out of left field for my mind.” For his part, Senate Majority Leader Mitch McConnell offered assurances that White House counsel would keep President Trump in line. But nothing in his campaign to date suggests that Trump recognizes any restraints, even the rule of law.