Trump and the Judge: Cynical Politics, Not Law and Not Racism By Andrew C. McCarthy
https://pjmedia.com/andrewmccarthy/2016/06/08/trump-and-the-judge/?singlepage=true
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.
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