When it comes to comprehending America’s system of justice, Donald Trump seems uninformed.
His attack against a federal judge presiding over two civil fraud cases against the now-defunct Trump University proves it. He insists that U.S. District Judge Gonzalo Curiel, who was born in Indiana, is unfit to hear the cases because he is of Mexican ancestry. And, after all, the presumptive presidential nominee has vowed to build a wall along the southern border.
Neither law nor facts support Trump
The heritage or ethnicity of a judge is not, by itself, a conflict of interest recognized by the law. It never has been. Nor is race, religion, gender or anything related to personal identity. For Trump to say so reveals a fundamental misunderstanding of our court system. And for someone like Trump who has spent so much time litigating in courtrooms across America, it is astonishing.
There is no evidence Judge Curiel has rendered any decision influenced by his own heritage or by Trump’s remarks about Mexicans or constructing a wall. Trump saying so… doesn’t make it so.
Yet, Trump claims he has been treated unfairly because the judge ruled against him on several pre-trial motions. As a chronic litigant, Trump might want to read the U.S. Supreme Court decision in U.S. vs. Grinell Corp. (384 U.S. 563, 1966) in which the high court ruled that losing motions is not evidence of judicial bias.
If you read Judge Curiel’s pre-trial decisions in the Trump University cases, they are all judicially sound, well-reasoned and legally justified. There is no evidence Trump is being “treated unfairly”, as he claims. Trump lost those motions because neither the law nor the facts were on his side. In other words, he lost fair and square.
Trump’s lone defender
Former Attorney General Alberto Gonzales seems to stand alone as Trump’s defender. He argues that Trump can ask Judge Curiel to recuse himself based on the appearance of impropriety. Huh?
Since when is looking like something a legitimate basis for anything in the law? It is not. In courtrooms, we require evidence and proof. Especially when accusations are leveled against judges.
Of course, Trump’s lawyers are free to ask the judge to recuse himself. But given their client’s vitriol, have you wondered why Trump’s attorneys have chosen not to? The reason is simple. They have read the federal law on judicial disqualification which provides the following specific grounds for recusal:
· Personal bias
· Personal knowledge of the evidence
· Was as a lawyer or adviser to the case
· Has a financial interest in the outcome
· Has a relative connected to the case
(Source: 28 U.S.C. 455)
The first ground, “personal bias”, is the relevant one. The law requires that it be proved or reasonably demonstrated, not merely alleged. And it does not arise merely because of a judge’s heritage. The U.S. Court of Appeals 2nd Circuit made that point abundantly clear in the case of MacDraw v. CIT Financial (157 F.3rd 956, 2d Cir. 1998):
“It is intolerable for a litigant, without any factual basis, to suggest that a judge cannot be impartial because of his or her race and political background.”
So, Alberto Gonzales is wrong. If Trump were to follow his advice, he could be sanctioned, as the litigants were in the above-referenced case when they accused the judge of bias without any reasonable basis for making such an argument.
When caught in an untenable argument, Trump often doubles-down instead of backing off. That is what he did this past weekend, when he said he doubted that a Muslim judge could remain neutral.
Let’s extend Trump’s logic to other scenarios. Does this mean a Jewish judge cannot handle cases involving Jews? Black judges cannot preside over affirmative action or racial discrimination cases? Female judges cannot sit on the bench during a trial involving abortion or women’s issues? Maybe white judges should recuse themselves whenever any of the litigants are white. Or black. Or whatever. In Trump’s universe, there would be no judges left.
Given some of his comments on the campaign trail, maybe that is what he has in mind.
Gregg Jarrett is a Fox News Anchor and former defense attorney.