The Hill (Op-ed)By George Wallace
June 10, 2016
Late last month, presumptive GOP nominee Donald Trump claimed that the Mexican ancestry of federal district court Judge Gonzalo Curiel was the reason why the judge ruled against him in a case involving Trump University. A firestorm ensued because Trump had taken a pile driver to the cherished ideal that in America, people are judged on their merits, and not on the basis of race, religion or creed. Trump was even bashed by Republican stalwarts like Speaker Paul Ryan (Wis.), Sen. Lindsey Graham (S.C.) and former Speaker Newt Gingrich (Ga.) (These days, Republican leaders resemble exhausted, bruised cowboys trying to coax a crazed bull into a holding pen.) Trump then issued a not-so-contrite statement explaining that he was only complaining about the "unfair and mistaken" rulings against him by Curiel.
Well, actually, those rulings were neither mistaken nor unfair. Curiel, the American-born son of Mexican immigrants, is a respected federal judge with an exemplary record of public service. Before becoming a judge, he served 17 years as a federal prosecutor, where he prosecuted drug cartel cases so effectively that, at one point, he had to live under security protection for a year because of threats to his life from a drug dealer.
By virtue of random assignment, Curiel came to preside over two civil lawsuits in a California federal court against Trump and Trump University brought by former students. A core allegation is that the Trump defendants misled the plaintiffs into believing that they would be taught Donald Trump's real estate tactics by instructors "hand-selected" by Trump himself. The plaintiffs allege that, in fact, Trump wasn't personally involved in selecting the instructors. Both Trump and the university deny the allegations.
Last November, in one of the cases, Curiel substantially denied the Trump defendants' motions for summary judgment, although the judge did dismiss the plaintiffs' claims for injunctive (non-monetary) relief. (He hasn't ruled in the other case.) This ruling appears to be the basis for Trump's grievance against Curiel. As Trump told Jake Tapper on CNN, "I should have won this case on summary judgment."
Summary judgment motions seek a resolution without trial and are based on pretrial deposition testimony, documents and written responses to interrogatories (questions) posed by each side to the other. If a judge concludes that there are material disputes as to facts, the case must go to a jury. Usually that's the outcome in fact-intensive cases like this one.
In his 44-page ruling, Curiel wrote a well-reasoned opinion in the neutral, craftsman-like manner that is the hallmark of a good federal judge. Curiel had no choice but to rule as he did because Trump's own statements created a factual dispute.
In seeking summary judgment, Trump cited his own interrogatory response to prove that he had "hand-selected" the instructors — namely, that he "attended periodic meetings with various experts" responsible for the course materials, and that he saw resumes of instructors. The plaintiffs responded by pointing to Trump's statement elsewhere in the same interrogatory response that, while he was involved in the selection of four instructors, "most if not all speakers, instructors and mentors were selected by Trump University representatives" — that is, not by Trump personally.
Characteristically, Trump had made inconsistent statements. That by itself raised a material fact issue as to whether Trump did or did not hand-select the instructors. This, together with testimony by several instructors that they had never even met Trump, justified Curiel's conclusion that "Mr. Trump is not entitled to summary judgment on this ground." In effect, Trump had damaged his own prospects for winning summary judgment.
Apparently to highlight his marquee issue, Trump attacked Curiel at a rally in San Diego on May 27, calling him a "hater of Donald Trump" and stating that the judge "happens to be, we believe, Mexican." He later told CNN's Jake Tapper that Curiel was biased because "I'm building a wall. ... He's of Mexican heritage."
This didn't happen in the Jim Crow South of the 1930s or apartheid South Africa in the 1960s. It's 2016, this is America, and a decent man, with a fine record of public service — the embodiment of the American Dream — has been the victim of a viciously racist attack from the presumptive Republican nominee for president of the United States.
Wallance, a writer and lawyer in New York City, and a former federal prosecutor, is the author most recently of "America's Soul in the Balance: The Holocaust, FDR's State Department, and the Moral Disgrace of an American Aristocracy."
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