Wall Street Journal
By Brent Kendall
June 2, 2016
Donald Trump on Thursday escalated his attacks on the federal judge presiding over civil fraud lawsuits against Trump University, amid criticism from legal observers who say the presumptive GOP presidential nominee’s comments are an unusual affront on an independent judiciary.
In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.
The New York businessman also alleged the judge was a former colleague and friend of one of the Trump University plaintiffs’ lawyers. The judge and the lawyer once worked together as federal prosecutors, but the lawyer, Jason Forge, in an interview said he had never seen the judge socially.
“Neither Judge Curiel’s ethnicity nor the fact that we crossed paths as prosecutors in the U.S. Attorney’s Office well over a decade ago is to blame” for Mr. Trump’s actions, said Mr. Forge, who is with the law firm Robbins Geller Rudman & Dowd LLP.
An assistant in Judge Curiel’s chambers said he wasn’t commenting on the matter. An aide to the judge has previously said the judicial code of conduct prevents him from responding to Mr. Trump. Judge Curiel is an Obama nominee who has served on the district court in San Diego since the Senate confirmed him in 2012.
Judge Curiel’s older brother, Raul Curiel, a 67-year-old in Hammond, Ind., said his brother wasn’t fazed by Mr. Trump’s comments. “He’s taking it pretty much in stride,” the elder Mr. Curiel said.
For judges, being criticized for rulings comes with the territory, but court watchers say it is a degree far different when the critic could win the nation’s highest office, is involved in a pending case and references the judge's ethnicity.
University of Pennsylvania law professor Stephen Burbank said it was “absolute nonsense” that the judge shouldn’t be able to preside over the case because of his ethnicity.
“If this continues, I would hope that some prominent federal judges would set Mr. Trump straight on what’s appropriate and what’s not in our democracy,” Mr. Burbank said.
Ronald Rotunda, a professor at Chapman University School of Law in Orange, Calif., noted that whatever Mr. Trump’s grievances, his lawyers haven’t filed any motion asking for the case to be reassigned to a different judge. If Mr. Trump has a problem with the judge, “that’s the legitimate way” to register a complaint, he said.
Mr. Trump in the interview said that he may do so. Other judges, he said, would have thrown out the plaintiffs’ case against the school, he said.
The GOP candidate’s comments follow a San Diego speech last week in which he called the judge “a hater of Donald Trump” and “a total disgrace,” while referencing the judge’s ethnicity.
Mr. Trump also criticized the judge Thursday on Twitter, saying he would win the litigation and reopen the now-defunct Trump University when the cases were done.
While Mr. Trump’s comments prompted criticism, he said he believed the bigger threat is to be treated unfairly by the courts. “It’s called freedom of speech,” he said of the criticisms.
Legal experts agreed that defendants have the First Amendment freedom to express opinions about a judge hearing their case—as long as they aren’t disruptive in the courtroom.
“It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions,” Justice Hugo Black wrote in a 1941 Supreme Court decision that threw out contempt convictions of a newspaper publisher and a labor leader for speaking out on pending litigation.
Judge Curiel is presiding over a pair of cases in which the plaintiffs alleged Trump University duped them into paying tens of thousands of dollars on the belief they would be trained to learn Mr. Trump’s real-estate strategies. Mr. Trump denies the allegations, saying the students got their money’s worth, with many offering positive evaluations of the program.
The judge has issued pre-trial rulings against Mr. Trump and has unsealed documents in the case offering a detailed look at the business’s operations and scathing assessments from some former workers. One case is set to go to trial in November, after the election. No trial date has been set in the other case, with the next pretrial hearing set for July.
Such criticism is a closer call if the critic is a lawyer in the case, because attorneys are bound by professional conduct rules.
Lawyers in some instances have faced sanctions for controversial criticisms of judges, while in other cases they have avoided punishment.
Mr. Trump is being represented by a prominent national law firm, O’Melveny & Myers LLP, whose alumni include federal appeals court Judge Sri Srinivasan, who was on President Barack Obama’s recent short list for the Supreme Court.
Firm representatives didn’t respond to requests for comment.
The code of conduct for federal judges restricts them from “mak[ing] public comment on the merits of a matter pending or impending in any court” and bars them from publicly endorsing or opposing a candidate for public office. But in at least one rare instance, judges came to the defense of a colleague they believed was being unfairly targeted with political attacks.
During the 1996 presidential campaign, both President Bill Clinton and Sen. Bob Dole, the Republican nominee, criticized a Clinton-appointed New York federal judge, Harold Baer, who excluded prosecutors’ evidence in a high-profile narcotics case. In response, four judges on the Second U.S. Circuit Court of Appeals issued a statement in defense of Judge Baer, saying the officials’ remarks had gone “too far” and could intimidate other judges.
Judge Baer later reversed his ruling, though he said it wasn’t because of political pressure. He eventually took himself off the case.
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